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Report of the Joint legislative committe
Legislative Document No. 111

 

STATE OF NEW YORK

REPORT

OF THE

Joint Legislative Committee

ON THE

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Simplification of Civil Practice

 

ALBANY
J. B. LYON COMPANY, PRINTERS
1919
CONTENTS

 

PAGE

Reference to bills introduced in 1919.20.00 000s 5
Duties imposed upon Joint Committee... 000 cece 6
Early statutes on practice................. fist tide che sided abet cet e 308 the sense SS %
Practice in Revised Statutes... .....00000........... Bis: ocean Shean ete eehas 8
Code of Procedure of 1848.00.00 000.0 eee eee tenes 8
Codeiot Cival Procedures ans cassis sucked aid sipakiaewinda sous anecange andes 11
D1Z6201 Che ‘Coden av caus tsceades tsa agezwenme eats BARR eMe bee ena ake ce 12
Codem@mendmentss noc nag avpgtGne ey osnceeatcedgee bb webbie se5 cece cee 13
Subsequent Practice Committee reports........00.0 00000 14
Report of Board of Statutory Consolidation.........0.000.0.0 00000000 17
Preliminary work of Joint Committee................ b, . Bula 5 @ i meanneeca cat ars 17
Plan recommended by the Board.............0.00000000 00000 cece eee eae 19
Board’s proposed Short Practice Act.........00 (occ eee 20
Board’s proposed Rules of Court...... BOE 5 VRE a ctePonetitealt fap oe A acter 22
Board’s proposed Special Practice Act8.~.S. oT eee 24
Board’s proposed distribution of other code matter...... bale iis Ae ste cere A 24
Board’s proposed changes in practice..........00.00.00000 fev cece eee eee 26
Plan of Joint Legislative Committee.......0.0 0000000000 cece ee eee 30
Comunittee’s special court acts..... 00... cee eee ert e eb beneas 31
Committee’s proposed transfers to Consolidated Laws........................ 34
Committee’s proposed Civil Practice Act.......0000.0.00000 cece ccc cece ee 35
Arrangement of Committee’s Civil Practice Act..........0.00.00 00000 35
Committee’s proposed changes in practice...............0.0.0 000002 39
Committee’s suggestions as to Rules of Court........ ES aid fx, Debs ck 56
UMMM ALY? pais, as ba ic acoel Gib deo RON SPT Ruled a ded Ag bAS NAY ENS io BARRO 57

APPENDIX

; PAGE

Civil Practice AGti. sc.50 oc san gees SNe eee . Gudea peace aobedeeda 61
Sunropate: Court Acts dicta ceacteaguinals Wabawe! S8adav kg Bids dean aedek TAL
Justice COULE ACH 005.3 2te4 keno PRONE eheaddeen REAR ARE SOA uMoneneddeed 403 911
Court of Claims Act....,.........0002..---- ten Be ite, teeth 1 tk retreated 1097
New York City*Court Acts < xis sgemeiarda 4 e,prcdntin oo aka nelde oa eee glnB ites ls 1117
Civil Rights: Lawamendments..<; 2: 2400ysivqsGeeusenseyaeseg 44 danke heteaas 1155
Condemnation: Law-scciccc-.s eaqucea $4 Seek Pe ye SS eeeree ls oo deeloee Sab eaen 1163
County Law amendments, 542.5 dee 42 b Peele snd  AQek Pee ORMREES eed 1181
Decedent Estate Law amendments........... 0.00.0... cece ccc eee ae 11938
Executive Law amendments...........-2. 000 cece eee cee even bee bene eneaeees 1217
4 APPENDIX

PAGE
General Construction Law amendments... .....0...0.0000 000 cece vtec ene ee eens 1221
General Corporation Law amendments...........0.0. 0000 c cece p eee e ee eeees 1227
Insurance Law amendments, casacacenens dhaad pane ee nya Pepeeeresguaneperes- 1231
Joint Stock Association Law amendments..................00 000 ceeeeee eee es 1235
Judiciary Law amendments.........00 00000. c ccc cece ents 1243
Legislative Law amendments........0.0..0.00.00 cece cece beens 1255
Partnership Law amendments............0.000.0 0c cece vee e ee 25 ) Berend asl 1259
Penal, Law SMendMents'. cidade cccacmr xeadadanhamnenaadeedleed dedends 1263
Personal Property Law amendments... ........0.0. 0.0000 c cece cette aee 1267
Prison Law amendments.........0.0.000 00006 c cece cece tenet e eee nes 1271
Public Lands Law amendments...........0.00000000 00 ccc eee neee ene neee 1283
Public Officers Law amendments............0.00. 0.000 cece cece ete een eee 1291
Real Property Law amendments..........0.0...0 000 c cece cece cent eeenes 1299
State Finance Law amendments...........000.00..00 0c ccc ccna 1343
Code of Criminal Procedure amendments................. 00.00 eeeueees 1349
Rochester charter amendments............0...0 00 cece cece cece eee eeeeeees 1355
Utica City Court Act amendments.........00.000.0.0.0 00000 ccc cece eves eeaee 1359

Rules iof County sn4 esos tel we eyes es Sl as sche  gotcde wamoneheeu 1363
REPORT

OF THE

JOINT LEGISLATIVE COMMITTEE ON THE
SIMPLIFICATION OF CIVIL PRACTICE

To the Legislature:

Since the presentation to the Legislature of 1918 of the
report of the Joint Legislative Committee on the Simplification
of Civil Practice in the Courts of the State, the Committee has
been engaged in completing its proposed plan of revision of the
practice. There were introduced in the Senate on March 31,
1919, twenty-seven bills, prepared by the Committee, amending
the statute law. These bills relate to the practice in civil actions
and proceedings and embrace an entire revision of the present
Code of Civil Procedure. The main bill proposes a new prac-
tice act, to be known as the Civil Practice Act, which repeals the
Code of Civil Procedure. In the Civil Practice Act, consist-
ing of 1,560 sections, will be found the statutory provisions regu-
lating civil practice in the County Courts, the Supreme Court,
the Appellate Divisions of the Supreme Court, and the Court
of Appeals. The Joint Committee has rdeommended many
important changes in the practice in the courts and has
re-arranged and revised the existing practice provisions which are
to be retained in statute form. Provisions which are to be
embodied in the form of court rules were not included in the
bills so introduced.

The practice provisions relating to Surrogates’ Courts have
been included in a separate statute, to be known as the Surro-
gate Court Act, and in a similar manner the Committee has
presented a Justice Court Act, a Court of Claims Act, a New
York City Court Act, and a new chapter of the Consolidated
Laws to be known as the Condemnation Law. Jills amend-
ing eighteen consolidated laws were presented to cover provisions
transferred from the present code to various consolidated laws.

[5]
6 Report or Jotmnt Lecistative Com irrEe

Bills also were proposed to amend the Criminal Code, the
Rochester Charter and the Utica City Court Act, to cover pro-
visions transferred from the code. All of the bills proposed
by the Committee are submitted herewith as a part of this report.

The Joint Committee here reporting was appointed pursuant
to joint resolution of the Legislature adopted April 22, 1915,
and continued by resolutions adopted at subsequent sessions.
The resolution creating the Committee directed it ‘“ to investi-
gate and inquire into the report of the Board of Statutory Con-
solidation on the simplification of the civil practice in the courts
of the State and to investigate and inquire into all matters per-
taining thereto.”

The powers of the Joint Committee of the Legislature were
not confined to an investigation of the report of the Board of
Statutory Consolidation, but extended to an inquiry into all
matters pertaining to the simplification of the civil practice.
The report of the Board of Statutory Consolidation, to which
reference was made in the original resolution creating the Com-
mittee, was presented to the Legislature on April 21, 1915.
Such report embraced a comprehensive classification and revision
of civil practice provisions and involved radical changes in the
system of practice in the courts.

The Committee reported to the Legislature of 1917 the result
of its examination and investigation of the report of the Board
of Statutory Consolidation. It was unable to approve of many
features of the report, although it recognized the great value of
the work of the Board as a basis for any plan of simplified
practice that might ultimately be adopted in this State. The
Committee had no authority to prepare and submit a plan for
simplification of the practice. The Legislature of 1917, how-
ever, in continuing the Committee, directed it “to prepare and
submit to the Legislature a proposed plan for simplification of
the civil practice in the courts of the State, accompanied with
legislative bills to revise, amend or repeal statutes to carry out
such plan, with such recommendations as it may deem proper
relating to changes in the rules of courts.” The report here sub-
mitted is in accordance with the instructions given to the Joint
Committee by the Legislature in 1917.
SIMPLIFICATION OF Civit Practice i

The investigation of the Committee has involved a study of
the history and development of procedure, as well as an exam-
ination of systems of practice in other jurisdictions, especially
those of England, New Jersey and in the Federal Courts.

Procedure for the enforcement of rights has of necessity
existed since the recognition of rights and the establishment by
organized society of tribunals and courts for their enforcement.
The report of the Commission of Code Revision made to the
Legislature of 1896 (Assembly Document No. 42), contains an
interesting sketch of the development of procedure from the
earliest times and a synopsis of the systems of practice then- in
force in other states and countries. The Commission stated
that its object was “to place before the public, information per-
haps not otherwise easily accessible, showing the striking simi-
larity in all ages in the main features of procedure and that the .
general principles of our practice are firmly established as a
part of our institutions.” The common law procedure of Eng-
land, as the same had been modified by the Legislature of the
colony of New York, became the procedure in this State under
the Constitution of 1777, subject to such alterations and addi-
tions as the Legislature might from time to time enact with
reference thereto. The Legislature very early commenced to
enact alterations and additions.

Early Statutes on Practice

From the organization of the State in 1777 to the year 1800,
inclusive, there were 78 general statutes relating to practice;
in 1801 there were 37 of the same character. The Legislature
of 1801 passed chapter 90, “for the amendment of the law and
the better administration of justice.’ This act constituted a
revision of many prior laws on the subject of practice. The
same Legislature revised the laws concerning costs and fees.
From 1801 to 1812, inclusive, there were 33 general practice
acts. In 1813 there was a general revision of the law and the
subject of practice was embraced in 26: statutes. This was a
revision of special subjects but not a general codification. From
1814 to 1827, inclusive, there were 47 general practice acts.
8 Report or Jornt LucistattvE CoMMITTEE

Revised Statutes

The first legislative action toward a comprehensive statement
of the jurisdiction and powers of the courts of the State as well
as of the regulation of the proceedings therein was made by the
Revised Statutes of 1828, Part III of which contained 10
chapters, entitled “An act eoncerning courts and ministers of
justice and regulating proceedings in civil cases.” This part
of the Revised Statutes, as stated in its preamble, was intended
to be a consolidation and rearrangement of existing statutes, a
simplification of their language and a supplying of omissions
and other defects. A large number of the sections were new in
form.

Parts II and III of the Revised Statutes contained 3,294
sections relating to courts, actions and proceedings, while the
Code of Civil Procedure of 1876, with the additions of 1880,
contained 3,356 sections. In making this comparison, it is
apparent that the Code of Civil Procedure, numerous as are its
sections, is not much greater in bulk than the provisions on
related subjects in the Revised Statutes of 1828. At the present
time the Code contains less than 2,800’ sections.

Code of Procedure of 1848

Pursuant to a direction contained in the Constitution of 1846,
commissioners were selected shortly thereafter “to reduce into a
written and systematic code the whole body of the law of this
State, or so much and such parts thereof as to the said commis-
sioners shall seem practicable and expedient.” The commis-
sioners proceeded diligently with their task and a part of the
result of their labors is found in the Code of Procedure enacted
in 1848. This Code, commonly known as the “ Field Code,”
was not a comprehensive practice act and was not intended by the
commissioners to be a complete system of practice. It was but a
fragment of the whole work later submitted to the Legislature
but not adopted; in fact it was once referred to by David Dudley
Field, its real author, as “the fragment of 1848.” .

The Field Code as originally enacted consisted of 391 gec-
tions, and of 473 sections after amendment in 1849. There
SIMPLIFICATION OF Cryin, PRAcTICE 9

were, however, sections making provisions of other statutes
applicable without reincorporating the same, for example, sec-
tion 421 (882) applying about 12 sections of the Revised
Statutes relating to referees; section 448 relating to partition,
applying about 95 sections of the Revised Statutes; section 451
relating to actions for waste, applying about 29 sections of the
Revised Statutes; section £55 relating to real property actions
generally, applying about 24 sections of the Revised Statutes.
The Code as amended in 1849, with these sections included by
reference, embraced 633 sections.

Only inconsistent statutory provisions were repealed (§ 468).
All others were left standing. Under section 471 (390) pro-
visions in the Revised Statutes concerning mandamus and pro-
hibition (12 sections) were expressly preserved, except where
plainly inconsistent; also appeals from Surrogates’ Courts (about
30 sections); also special statutory ‘remedies not theretofore
obtained by action; also proceedings provided for by chapter 5
of Part Il of the Revised Statutes (282 sections); also the
sixth and eighth titles of chapter 5 of Part III (24 sections) ;
also chapter 8 of Part III (646 sections); also chapter 9, title
1, Part ITI (86 sections).

Some of the topics covered by the provisions thus excepted
from repeal were proceedings in relation to non-resident, ab-
sconding, insolvent and imprisoned’ debtors, estates of idiots.
lunatics and drunkards, trespass on lands, discovery of life
tenant, suits by poor persons, proceedings by and against infants,
suits by and against executors and administrators. against heirs,
devisees and legatees, proceedings by and against corporations,
suits against sheriffs and other officers, actions for fines and
penalties, admeasurement of dower, collection of demands
against ships and vessels, recovery of rent and of demised prem-
ises, summary proceedings to recover possession of land, dis-
training cattle, action of replevin, contempt proceedings, arbitra-
tion, foreclosure of mortgages by advertisement, draining of
swamps, general miscellaneous provisions concerning suits and
proceedings in civil cases, writs of habeas corpus and certiorari.

If the amended Code of 1849 had been enacted with all of the
provisions actually forming a part of the same, both the sections of
10 Report or Joint LzugrstativE ComMIrree

the Code itself and the sections of the Revised Statutes expressly
included by reference or excepted from repeal, it would have
contained a total of 1,813 sections.

The Code of 1848, as amended in 1849; included but 13 sec-
tions and 15 rules relating to Justice Courts and the practice
therein, and repealed in terms but 11 sections of the Revised
Statutes relating to these courts, so that about 270 sections of the
Revised Statutes were left in existence governing Justice Court
practice,

The Surrogate Court practice in the Revised Statutes (about
390 sections) was left practically untouched by the 1848 Code.

The Field Code, as amended in 1849, with sections of the
Revised Statutes included by reference or left unrepealed and those
relating to Justice and Surrogate Courts makes an actual bulk of
2,473 sections. In addition to these sections, existing statutory
provisions relating to actions not inconsistent with the Code and
in substance applicable to actions therein provided were expressly
preserved, thus saving from repeal a large number of sections.

It is apparent that the Field Code of 1848, contrary to a
popular idea of many of the present members of the profession,
was not and did not purport to be a complete statement of the
statutes relating to courts and the practice and procedure
therein. As a matter of fact the Field Code provisions, with
the unrepealed provisions of the Revised Statutes and other en-
actments passed between 1828 and 1848, if brought together
into one volume of statute instead of being left scattered, would
make a bulk of statutory regulation quite as formidable as the
present Code of Civil Procedure.

Much of the Field Code was new enactment making changes in
the existing forms of practice and stating rules not theretofore
incorporated in our statutes. The language of the Code sections
‘was comparatively simple in form and the style was generally
commended. The work simplified the practice. abolished many
of the perplexing technicalities of the old practice, and became
the model for the codes of many other states of the Union.
Practice in the courts, however, had not reached the point
where litigation had become easy and justice immediate. The
courts were called upon at once to construe provisions of the Field
SmarpLirrcarion oF Cryin Pracrics Ls

Code and numerous questions continued to arise as to the great
mass of unrepealed provisions of the Revised Statutes. The
court decisions upon questions of practice after the adoption of
this code filled many volumes of reports. The Field Code was
published in handy form, one edition being no larger than the
modern vest pocket diary. The bar soon found, however, that
the code contained but a small portion of the statutory provisions
governing court practice and must be read with the provisions
of the Revised Statutes in order to find a complete statement of
the procedural regulations upon many subjects.

Code of Civil Procedure

There was general dissatisfaction with the condition which
existed and within a few years after the adoption of the Field
Code, a new agitation began for another commission to revise
and consolidate the statutes relating to courts and procedure. In
1870 a commission was created for this purpose by the Legis-
lature. In 1876 the labors of this commission bore fruit in a
Code of 1,496 sections, and in 1880 the second instalment of
its work followed with an addition of more than 1,800 sections.
These two enactments were called the Code of Civil Procedure,
for many years referred to as the Throop Code. The Throop
Code, with amendments, additions and repeals, is our present Code
of Civil Procedure.

This code met with great opposition at the time it was pro-
posed for enactment and the objections to it have continued
with varying vigor since that time. The grounds given for the
criticism of the Throop Code are many. It is claimed that it
is too minute; that it attempts to regulate too many details of
practice which should not be the subject of statutory regulation ;
that its classification and arrangement of material are not con-
venient or logical ; and that it is too cumbrous and too verbose.

Whatever the faults of the Throop Code, its chief claim to
favor was that it brought together into one volume all of the out-
standing statutory enactments relating to courts, practice and
procedure, including the Revised Statutes, the Field Code
and independent acts. In addition to the restatement of
existing law, the Throop Code embraced many new provisions
12 Report oF Jornt LeaisuaTIvVE CoMMITTEE

based on court decisions and suggestions received from members
of the bar. It was in process of preparation and enactment for
ten years. .

Size of the Code

The Throop Code upon the enactment of the chapters adopted
in 1880 contained 3,356 sections and subsequently it was increased
by inclusion of the Condemnation Law, the Mechanic’s Lien
Enforcement Law and other acts to 3,441 sections. Opponents of
the code lay special stress upon its vast bulk as one
of the chief reasons for its repeal. The statement so
often made that the code contains over 3,400 sections
is incorrect. Many sections have been repealed from time
to time without reenactment; many have been repealed
and transferred to the consolidated laws. As a matter of fact
there are now in the Code a total of 2,732 sections and neither
by transfer to rules nor to consolidated laws can the actual volume
be materially reduced. In this connection it is interesting to
note that while the Board of Statutory Consolidation recommendea
many code provisions for repeal, the whole number of sections of
statute law and rules proposed by the Board was 2,657, includ-
ing practice acts, rules and additions to the consolidated laws.
An analysis of the Code discloses but 822 sections, a comparatively
small number, actually relating to procedure in the course of an
ordinary civil action. Exclude from the total number of code
sections those relating to Justices’ Courts, Surrogates’ Courts, the
Court of Claims, the New York City Court and condemnation,
and there, remain 1,975 sections to be considered. Exclude 310
sections which the Committee deems may be transferred to
the consolidated laws, and there remain 1,665 sections, Ex-
clude 545 sections relating to particular actions (partition, fore
closure, matrimonial actions, ete.) and there remain ‘1,120 sections
Exclude 298 sections relating to Hmitation of actions, evidence,
costs and fees, and exemption from execution and there remain
822 sections, which may be considered as relating to the
procedure in an ordinary civil action. While the number of
sections thus excluded (1,910) may be somewhat reduced by
revision, the greater part of these provisions will continue to con-
stitute part of the statute law of the State governing practice
SrmMpriricaTion oF Crvin Pracrice 13

and procedure, as those terms are generally understood by the
profession, regardless of what plan is adopted for the revision of
the civil practice. If we exclude these provisions from the Code
or from the practice act they will be compiled into one volume by
editors, as has been done in England, and the bulk of the practice
manual will not be diminished.

The compilation of the rules and statutes relating to practice
in England published under the title of ‘‘ The Annual Practice,”
covers 2,415 finely printed pages, with an index of 382
pages, and contains the citation of 11,400 decisions interpreting
the meaning of the English practice acts and rules. The practice
acts themselves, independently of the rules and orders, contain
approximately 3,500 sections. While the Committee has not made
an examination as to the volume of practice law in the State of
New Jersey, wherein a short practice act and system of rules
prevail, it has been informed by attornevs practicing in that state,
that the actual volume of the practice law is not materially less
than in the State of New York.

These suggestions are made for the purpose of indicating that
the expedient of adopting a short practice act and a system of
rules will not result in reducing the number of practice provi-
sions as the same are ordinarily understood.

Code Amendments

One of the chief complaints against the Code is its frequent
amendment by the Legislature, by reason whereof the practice
is kept in an unsettled condition. While it is true that numerous
amendments to the Code are annually proposed, and some of these
probably for the purpose of affecting particular law suits, never-
theless it is also true that the Legislature today proceeds very
cautiously in adopting amendments to the portions of the Code
affecting the well established procedure in the course of an action.

A careful examination of the amendments which have been
made from time to time since the Code of 1877, reveals the fact
that with the exception of important amendments, proposed
by responsible authorities, the actual working portions of the Code
have remained almost unchanged since its adoption. Exclusive of
14 Revort or Joint LeqistativE ComMMITTEE

amendments made for correction in 1877 and 1879, changes
required by the new Constitution of 1895 and hy the con-
solidation laws of 1909, of 905 sections covering general pro-
visions of the Code relating to the procedure in an ordinary civil
action, but 229 sections have been amended by the Legislature
during the forty years since its adoption. These suggestions are
made in view of the claim that the Legislature is constantly tinker-
ing with the Code. The adoption of a short practice act or a
system of rules will not prevent the proposal of amendments to
the general practice law of the State.

Subsequent Practice Committee Reports

Since the enactment of the Code of Civil Procedure several
commissions and committees have heen appointed charged with
the examination of the Code, and each has made recommendations
as to the methods to be adopted for simplifying the practice. The
Statutory Revision Commission was appointed in 1895, pur-
suant to chapter 1036 of the laws of that year, which directed
the Commission to “ examine the Code of Procedure of this State
and the codes of procedure and practice acts in force in other
states and countries, and the rules of court adopted in connection
therewith, and report thereon to the next Legislature in what
respects the civil procedure in the courts of this State can be
revised, condensed and simplified.” The Commission made a pre-
liminary report to the Legislature of 1896 (Assembly Document
No. 42). It subsequently reported to the Legislature a rearrange-
ment and partial revision of the Code of Civil Procedure, divid-
ing the Code into eleven codes and laws and including in its plan
a separate Surrogates’ Code and a separate Justices’ Code. Its
final report was made to the Legislature in 1900, but was not
adopted.

In 1900 a Special Joint Committee on Statutory Revision Bills
was authorized by resolutions of the Senate and Assembly. In
reporting to the Legislature in 1901, such joint committee reeom-
mended the rejection of the code bills proposed by the Statutory
Revision Commissicn. The Committee’s report said “ The evils
inherent in the prescnt code of civil procedure are the reasons for
its revision. The code is technical, inelastic, redundant, incon-
SIMPLIFICATION OF Cryin Practice 15

sistent, contains substantive law, and has been the creature of
frequent legislative amendments. These evils should be cured.
Tlowever, the Committee is opposed to any change for the sake
of change. The revision should be as little radical and disturb-
ing as possible. Though the code of civil procedure is bad it has
been our practice act for over a quarter of a century and the bar
has grown accustomed to its main provisions. <A total repeal of
the present system would be demoralizing. It would be unwise
to suggest a practice act not based upon the present code of civil
procedure.”

That Committee also rejected the plan of code revision advocated
at that time by the New York State Bar Association which,
in the language of the Committee, “ proposed to reduce the code
to a short practice act covering jurisdictional matters mainly,
leaving the details of practice to be controlled by rules of court
somewhat like the plan now in operation in England.” The Com-
mittee said: “One of the objections urged against this plan is
that it violates a fundamental principle of our government,
namely, the separation of the legislative and judicial functions.
The plan also, like that of the Statutory Revision Commission,
make it necessary to look in more than one act to find the general
provisions governing practice. The Committee therefore is opposed
to the plan of code revision heretofore urged by the State Bar
Association for the following reasons:

A. It vests in judicial officers legislative functions and
is therefore un-American and unsuited to our system.

B. It is inconvenient because it makes more than one
practice act.”

The plan recommended by that Committee differed from the
plan of the Statutory Revision Commission in that the Com-
mittee proposed “a single general practice act” and advocated
“such changes in pleading and practice as are obviously neces-
sary.” It differed from the plan of the State Bar Association in
that the Committee proposed “ a single practice act ” which should
“be enacted by the Legislature” and which should contain “ all
the general practice provisions.” The plan of the Committee
was generally approved.
16 Report or Jornt LecisLaTIvE CoMMITTEE

Subsequent to the report of such Joint Committee, a Commit-
tee of Fifteen authorized by an act of the Legislature, made a
report in 1903, with the following recommendations as to the
code:

“First. Eliminate all substantive law, including provisions
for penalties, and the rules of evidence other than those relating
to procedure to take and perpetuate evidence.

Second. Leave the practice in inferior courts to be fixed either
in the statutes relating to those courts or by a separate statute.

Third. Enact in a separate statute all that is purely adminis-
trative, such as law relating to duties of sheriffs, coroners, stenog-
raphers, clerks, reporters, drawing of jurors and the like.

Fourth. Omit matters obsolete by lapse of time, and revise those
manifestly not adapted to present conditions.

Fifth. Simplify the language, state in general terms matter
covering related topics, condense the sections where it can be done
without danger of raising questions of construction, and in cases
where the construction is doubtful, make it clear by restatement.

Sixth. Place in the rules minor matters which should be dis-
cretionary, and which are analogous to the matters now con-
tained in the rules, so far as they now bear that character.”

The Board of Statutory Consolidation was created in 1904
charged with the work of consolidating the general statutes of the
State and also of revising practice in the courts. The work of
this Board from its establishment until 1909 consisted mainly in
the preparation of the Consolidated Laws, which have been en-
acted. The Board deferred making recommendations to the Leg-
islature upon the subject of practice revision until after it had
completed its work upon the general substantive laws. The Leg-
islature in 1912 directed this Board “ to report to the next Legis-
lature a plan for the classification, consolidation, and simplification
of the civil practice in the courts of this State’ The Board
presented to the Legislature of 1913 a plan in pursuance of the
1912 act and was then “ authorized and directed to prepare and
present to the Legislature as herein provided, a practice act, rules
of court and short fprms as recommended by said Board in its
report to the J egislavure of 1913.”
SiareLiricsation oF Civi~t Pracrice 17

Report of Board of Statutory Consolidation

The Board of Statutory Consolidation presented its complete
report dealing with civil practice, contained in four volumes, to
the Legislature of 1915. Volume I contained a short practice
act of 71 sections, and 401 rules of court; volume IT, the practice
in Surrogates’ Courts, Justices’ Courts, and certain inferior local
courts; volume III, provisions of the Code distributed into vari-
ous consolidated laws; and volume IV, source tables and tables of
distribution of Code sections. Each volume contained the notes
of the Board referring to the various provisions contained
therein.

The report was transmitted to the Legislature by the Governor
on April 21, 1915, with a suggestion that a joint committee of the
Legislature be appointed to act with other committees in consid-
eration of the subject, and on the following day a joint resolu-
tion was adopted creating the Joint Legislative Committee here
reporting.

A “revised draft of the Civil Practice Act, Civil Practice Rules
and Consolidated Laws, reported to the Legislature April 1, 1915”
was reported to the Legislature by the Board of Statutory Con-
solidation under date of February 1, 1919. The references
throughout this report of the Joint Committee, and in the notes
contained in the proposed legislative bills appended hereto, to
the report of the Board of Statutory Consolidation, are to the
report of the Board as presented in 1915, and not to the 1919
report. The 1919 report was stated by the Board to contain the
legislation enacted since the previous report of the Board includ-
ing the legislation of 1918 and bringing the report down to Janu-
ary 1, 1919.

Preliminary Work of Joint Committee

In pursuance of the authority received from the Legislature
the Joint Committee at the outset, realizing to some extent the
stupendous task with which it was confronted, had prepared a
number of necessary indexes, tables and other working tools to
enable it to begin its work understandingly and make the minute
and detailed studies and comparisons required before a report of
any value could be made. In this connection it is well to remem-
18 Rerort or Jormnt LecistativE ComMirrer

ber that the Board of Statutory Consolidation presented a report
which, if adopted and enacted, would repeal the present Code of
Civil Procedure, substitute a short practice act and transfer to
the courts the power to regulate practice and procedure. What-
ever the objections to the Code might be, it had been in existence
in one form or another for nearly a century, and the Committee,
regardless of the demand from many quarters for its repeal, felt
that the questions involved were of: such vast importance as to
merit the most deliberate and careful examination and research.

In the first place a pamphlet was prepared and distributed con-
taining a comprehensive index of the practice act and rules
reported by the Board, as no index accompanied the Board’s
report. This pamphlet also outlined the Code provisions assigned
by the Board to the various Consolidated Laws.

The Code of Civil Procedure was pasted on large sheets, sec-
tion by section, and opposite each section were pasted the parts
of the practice act and rules or Consolidated Laws into which such
Code section was distributed or the section of the act or rules
which the Board said superseded or covered the Code section.

The practice act and rules were pasted on large sheets, section by
section, and opposite each section was pasted the note of the Board
referring to such section or rule. Each section of the practice
act and each rule were then marked by bracketing and underscor-
ing to indicate whether the section was all new, or if not all new,
what portion was new and what portion was derived from the
Code and the change in language, if any.

The Code of Civil Procedure was marked to correspond with
the disposition of the various sections and parts of sections by the
Board, and a series of abbreviated references was adopted and
marked on the margin of the Code sections, and from this marked
Code a number of “ Key” Codes were marked for use by the
Committee and its assistants and for distribution to various bar
association committees.

A series of large cards were prepared and printed with a differ-
ent color for sections of the practice act, the rules, the special
court practice, and the Consolidated Law amendments. A separate
color was also used for cards to contain the sections in the form
finally adopted by the Committee,
SIMPLIFICATION OF CiviIL Practice 19

Pian Recommended by the Board

The idea underlying the new system of practice recommended
by the Board of Statutory Consolidation may be summarized in
the language of the Board as follows:

“(1) The preparation of a short practice act to be adopted
by the Legislature which would direct the changes necessary to
simplify procedure and adapt it to present conditions;

(2) The preparation of rules of court by the courts which
would regulate the important matters of practice and which
would be under the control of the courts;

(8) The preparation of such changes in the practice as would
simplify and modernize it so as to secure a prompt determination
of legal controversies according to the substantive rights of the
parties.”

The changes proposed by the Board may be separated into two
main divisions, as follows:

(a) A complete change in the method of regulating civil prac-
tice from a statutory code enacted by the Legislature to court
rules adopted by the courts, and

(b) Radical and far reaching changes in the practice itself,
involving extensive revision and condensation of the present
practice provisions.

The absolute repeal of the Code of Civil Procedure is con-
templated under the first division (Civil Practice Act, Sec. 70)
to be replaced by a brief practice act of seventy-one sections con-
taining a statement of principles of practice to bind the
courts in formulating and applying the rules. Hereafter all
matters of practice would be regulated by rules of court
which would be under the control of the courts, except so far as
limited by the short practice act. (Civil Practice Act, Sections
5, 6.) A convention of appellate division justices is given
plenaty power to make and amend rules of practice and pro-
cedure from time to time (Civil Practice Act, Section 6).
Where no provision is made by the act or rules the proceedings
shall be regulated by the court or judge before whom the action
is pending. (Civil Practice Act, Section 5.)

The second division mentioned deals with the actual rewriting
cf our civil practice and procedure and includes the various
20 Report or Jorvt Leaisiative CowMirree

changes suggested by the Board in practice provisions from the
commencement of an action to its complete determination.

In order to review the different portions of the work of the
Board, the Committee will take up separately: (1) the pro-
posed short practice act; (2) the proposed rules of court; (3)
the special court practice acts; (4) the distribution of Code
matters not contained in either of the foregoing divisions; and
(5) specific changes in practice recommended by the Board.

Board’s Proposed Short Practice Act

The short practice act proposed by the Board consisted of 71
sections, 13 of which were sections concerning the construction
of the act, saving and repealing clauses, leaving 56 sections
relating strictly to practice and procedure in the courts. Refer-
ence was made by the Board to the fact that the English Judi-
cature Act of 1873 contains 100 sections and the New Jersey
Practice Act, 34 sections.

The theory of the practice act was that it should define merely
the fundamental principles which should direct, govern, and
restrict the courts in the formulation of rules of practice. The
Board says: “It leaves the working out of the details of prac
tice to the court rules, thus placing the responsibility for legal
procedure upon the courts where it belongs.” The Board further
states: “ The plan herein proposed is not that of the English
system under which so much of the details of practice is left to
the decisions of the courts, but one under which the ground work
or fundamentals of procedure are defined by the Legislature and
the superstructure or details are regulated by stated written rules
of court binding upon the courts and litigants alike, but modi-
fiable in the interest of justice whenever necessary.”

In examining the report of the Board it will be seen that
the suggested new system of practice was not modeled entirely
upon any system existing in any other jurisdiction but that it
was prepared so as to retain a large part of our present practice
system as well as including features adapted from other States

and from England.
SIMPLIFICATION OF CryiL Pracricr DT:

The first eighteen sections of the practice act contain general
provisions relating to the construction of the act, general powers
of courts and judges as to rules of practice, mistakes and defects,
amendments, consolidation and severance, terms of court, orders,
costs, classification of causes, classification of practice in rules,
filing and docketing of papers.

Sections 19-28 contain provisions relating to the commence
ment of actions, as joinder of causes and parties, pleadings and
rules for service; sections 29-32 cover preparations for trial; sec-
tions 33-41 cover matters relating to the trial of actions;
sections 42-46 relate to Judgments; sections 47-54 to appeals;
section 55 to execution; sections 56-71 cover certain miscellan-
eous matters and also provisions laying down rules for the con-
struction of the act, the effect on other acts, repealed provisions,
saving clauses, the repeal of the Code of Civil Procedure and
the time when the act takes effect.

Of the 58 sections of the act relating to practice and proced-
ure, 38 state principles of practice and the other 20 relate to
the construction and application of the act, the method of formu-
lating rules by the courts and directions to the courts as to
certain features which the rules must contain. Many of the
matters stated in the act were practically duplicated in the rules.

A eivil action in our courts today is brought to obtain the
enforcement of a right or to secure the redress or prevention of
a wrong. In the very nature of things, there are certain prin-
ciples underlying various procedural matters in the course of an
action which are recognized as fundamental and which are purely
matters of strict right and so substantive in character that they
should be a part of our statutory system. Many of these funda-
mental statements were included by the Board in the practice
act. Other provisions, similar in character, which the Board
hesitated to place within the power of the courts to alter, were
distributed to various existing consolidated laws and to certain
proposed new laws. A careful examination of the proposed rules
discloses other provisions which in the judgment of your Com-
mittee were of similar nature and which should, therefore, be
eliminated from the rules. These pertain to jurisdiction, to due
process of law, or confer rights and privileges which should not
be entrusted to the judgment of any court.
22 Rerort or Joint LuaisLATIvE CoMMITTER

Board’s Proposed Rules of Court

The Board reported a set of rules to accompany the Short
Practice Act to be known as the “ Civil Practice Rules,’ and to
be the rules governing practice and procedure in the courts until
general rules of practice should be made in accordance with the
provisions of the Practice Act.

The convention of justices assigned to the Appellate Division
would have plenary power to make, alter and amend rules of
practice and procedure from time to time, not inconsistent with
law, binding upon all courts of the State and the judges and
justices thereof, except the Court of Appeals, unless otherwise
expressly stated, and the court for the trial of impeachments.

In addition to such rules the courts of record might make
other rules to carry into effect the powers and jurisdiction pos-
sessed by them, not inconsistent with the foregoing rules, as they
might deem necessary.

In cases where no provision is made by statute or by rules,
the proceedings would be regulated by the court or judge before
whom the matter is pending.

Non-compHance with any of the civil practice rules, or with any
rule of practice for the time being in force would not render
any proceeding void unless the court or a judge should so direct,
but such proceedings might be set aside either wholly or in part
as irregular, or amended, or otherwise dealt with in such manner
and upon such terms as the court or judge should think fit.

The rules submitted by the Board, 401 in number, were logi-
cally arranged according to the consecutive steps in an action.
They were stated to be broad and liberal in terms, omitting minute
details, containing as few exceptions as possible and leaving a
wide discretion in the courts.

The rules were divided into eight divisions called “ Orders,”
as follows:

Order I. General provisions. (Rules 1-75.)

Order II. Commencement of action. (Rules 76-223.)

Order III. Preparation for trial. (Rules 224-252.)

Order IV. Trial. (Rules 253-290.)

Order V. Judgment. (Rules 291-328.)
Lo
a)

SIMePLiFicAtion oF Crvin Pracrice

Order VI. Appeal. (Rules 329-377.)
Order VII. Execution. (Rules 378-399.)
Order VIII. Construction. (Rules 400-401.)

The Code of Civil Procedure provisions were taken as the
basis for many of the suggested rules. Other rules were adapted
from the English rules and from the New Jersey practice. The
present General Rules of Practice were included, such portions
as were not classified elsewhere in the new arrangement being
omitted.

This Committee believes that the rules prepared by the Board
contained many provisions which should be statutory. The
Committee feels that the existing General Rules of Practice
should be revised and that many provisions now in the
Code should be relegated to rules of court. The Committee
does not recommend the enlargement of the rules to the extent
recommended by the Board. This question is one of the most
important involved in the suggested changes in practice. Opinions
of those members of the profession who have given the subject
most careful thought differ widely as to the proper course to
be followed. Whatever is done in this matter should have most
deliberate consideration because the success or failure of the
revised system of practice will depend almost entirely upon the
correct solution of this problem and the proper execution of the
mechanical details incident to such change as may be adopted.

Flexibility is the chief argument advanced for the rule system
of practice as opposed to the statutory code system. The Board
says: “ These rules being subject to modification by the courts
and not hard and fast statutory enactments will discourage liti-
gation over procedural matters and place the responsibility for
the efficiency of judicial administration upon the courts where
it belongs rather than upon the Legislature.”

The Committee favors a liberalizing of practice in the courts
together with such extension of the powers of the courts as may be
required to enable them to deal with pending actions in accord-
ance with the merits of the questions involved rather than with
the form in which the matters are presented. The best way to
accomplish these results has perplexed the minds of all who have
studied the subject.
24 REPoRT oF Joint LecisLATive COMMITTEE

When the Board prepared its proposed Rules of Court it
contemplated that there would be submitted with the practice
act and rules, a set of forms, the legislative direction to the
Board being to prepare and present to the Legislature “a practice
act, rules of court and short forms.” The Board in its report
states: “ Short forms of pleading and other legal papers will be
prepared as a guide to the profession and as a means of avoid-
ing the technical and cumbersome forms which so generally pre-
vail.” Such forms have not been submitted to the Legislature.

Board’s Proposed Special Practice Acts:

The Board of Statutory Consolidation proposed as a part of
its report a separate Surrogates’ Act, a separate Justices’ Court
Act and a separate New York City Court Act, transferring to
those acts the sections of the Code applying specially to such
courts. The Board also recommended, at least as to the Surro-
gates’ Court Act and the Justices’ Court Act, that provisions of
the general practice affecting such courts be re-enacted in
terms, instead of being applied by reference. The Board also
proposed to transfer to the State Boards and Commissions Law
the provisions of the Code relating to the Court of Claims. Your
Committee has made an examination of this portion of the report
of the Board of Statutory Consolidation, and in the main approves
its recommendations.

Board’s Proposed Distribution of Other Code Matter

The Board of Statutory Consolidation in the preparation of its
short practice act included as few sections as possible in this act
but transferred elsewhere a great many sections of the Code which
in its opinion should not be left to the courts to cover by rules.
This theory has required the distribution of a large number of
provisions ordinarily considered practice provisions to an extent
which the Committee believes is unwise and impracticable. For
example, the provisions of the Code relating to judgments are dis-
tributed in the rules and in 10 different statutes, as follows: Civil
Practice Act; General Construction Law; Lien Law; Costs, Fees,
Disbursements and Interest Law; Judiciary Law; County Law;
Real Property Law; New York City Court Act; Debtor and
SIMPLIFICATION OF Crivin PracticE 25

Creditor Law; and Civil Rights Law. The sections relating to
summary proceedings to recover the possession of real property
have been distributed into rules and 8 consolidated laws; the
provisions relating to proceedings supplementary to execution
into rules and 7 consolidated laws; the provisions in relation to
partition into rules and 7 consolidated laws; and the provisions
relating to attachment into rules and 7 consolidated laws.
Looking at the matter from the standpoint of a technically
selentific classification of related matters, if we are to have a
law. upon any specific subject, all matters relating to that particu-
lar subject should be embraced in one statute. Thus, if we
ce judg-
would be embraced within that law, and if we have a
Lien Law, all matters relating to the lien of an execution would
be embraced in that law. So also 1f we have a Civil Rights Law,
all matters relating to the tights of an individual would be con-
tained in such law. The Committee believes, however, that in
dealing with the subject of the statutory regulation of the prose-

have a Debtor and Creditor Law, all matters relating to
ments ””

cution of the rights of citizens in the courts, science in strict
analysis and classification should yield somewhat to convenience
and practicability in reference. As was said by David Dudley
Field, “There are two aspects of a code; one as a scientific
treatise, the other as a work useful and convenient for daily use.
In the one view the code should be arranged and expressed ac-
cording to the most scientific theory of legal rights and duties,
and the dependence of the different parts upon one another; in
the other view it should be arranged and expressed in the way
easiest for reference and easiest to understand.”

This feature of the Board’s work has been criticised adversely
by bar associations and individuals who have given close study to
the subject, and, in the main, is disapproved by your Committee.

Your Committee is not impressed with the sanctity of a short
practice act merely because it contains a small number of sec-
tions. If, as is generally admitted, we must have in statute form
several hundred sections similar to provisions now in the Code
of Civil Procedure, the Committee recommends that all of such
provisions be contained in the practice act under convenient
classification and arrangement. Such provisions as are clearly
26 Report or Joint Leqistative ComMMITTEE

substantive law should be transferred to the consolidated laws
together with certain particular actions and proceedings which
are seldom resorted to and which are unnecessary in a general
practice act.

Board’s Proposed Changes in Practice

The short practice act and rules proposed by the Board of
Statutory Consolidation contained a number of fundamental
changes in practice. In 1916 the Joint Legislative Com-
mittee prepared a pamphlet summarizing the more import-
ant changes in civil practice recommended by the Board and
distributed 10,000 copies to the lawyers of the State, with the
request that each person receiving the pamphlet fill out and
return to the Committee an enclosed blank giving the personal
views of the writer on the subjects mentioned. The Committee
did not attempt to include all proposed changes in practice, but
merely the main features to which the Board had given attention
in its report. An opinion was requested as to the desirability
of such changes in practice without regard to whether they
might be accomplished by statute or rules. Some of these changes
met with general approval, but as to some of the more vital
changes the opposition was emphatic.

Among the changes proposed by the Board which met with
general approval were the following: That the distinction in form
between court orders and judges’ orders be abolished; that in
general a mistake in court, venue, remedy or procedure shall
not defeat an action or proceeding; that all parties in interest may
be joined in one action; that no action shall be defeated by non-
joinder or misjoinder of parties; that there shall be simplification
and facility in obtaining evidence before trial; that pleadings
should be required to be more definite so as to define the issues;
that substituted service shall be simplified; that all questions of
fact involved be disposed of at one trial; that exceptions to rulings
on trial be abolished; that an appeal from a judgment shall
present all questions of fact and law in the case, including ques-
tions involved in intermediate orders; that the order on appeal
shall state the exact ruling of the appellate court; that the pro-
cedure for provisional remedies shall be made more uniform.
Srupriricarion or Cryin Practice Pat

Among the proposed changes which met with almost uniform
general disapproval are the following: That a new or different
cause of action may be set up by amendment at the trial; that
all preliminary questions must be determined by one motion for
directions within fourteen days after issue joined; that a jury
trial be deemed waived unless expressly demanded in writing
within ten days after the cause is at issue; that a jury may not
render a special verdict unless so directed; that interlocutory
judgments be abolished; that an appellate court may take addi-
tional proof; that a retrial shall only be had of questions with
respect to which an error was committed; that on reversal because
damages are excessive or inadequate the issues on retrial shall
be confined to the amount of damages; that the allowance or dis-
allowance of statutory costs shall be in the discretion of the
court or judge; that the meaning of a statute, ordinance or
written instrument may be determined by the court before it
becomes the subject of an actual law suit.

Certain other proposed changes while not so generally disap-
proved met with considerable criticism. Among these are the
following: That all special proceedings and state writs be abol-
ished and civil actions substituted; that orders to show cause
be abolished and short notice of motion permitted by the judge
be substituted; that short summons to appear be permitted in
commercial actions; that all kinds of causes of action or counter-
claims may be joined, subject to a direction by the court for a
separate trial of any issue; that practically all evidence before
trial be taken by written interrogatories only; that further plead-
ings subsequent to the reply may be ordered; that an early trial
may be ordered where it appears that the determination of a
motion will involve an examination of the whole merits; that
the case on appeal shall present in question and answer form
only so much of the evidence as shall be necessary to present the
questions raised.

These proposed changes were also the subject of consideration
at many public meetings of the Committee held throughout the
State at which similar diversity of opinion was expressed by the
lawyers in attendance. The Joint Committee has not approved
any of the changes mentioned in the two preceding paragraphs.

Our system of practice has been an evolution. Important
28 Report or Joint LeqgistativE COMMITTEE

changes should be made only after careful study and mature
consideration. While it is claimed that many of the changes
advocated by the Board have been successfully tried in other
jurisdictions, the organization of our courts, the congestion of
population, the volume of litigation, or other local conditions,
render certain of them unsuitable in this State.

The Committee has endeavored to determine from all sources
of information what changes, if any, should be made in the
practice to facilitate the speedy and economical administration
of justice. It has sought to ascertain the consensus of opinion
both as to a general system and as to the details of a plan of
simplified practice. For that purpose, numerous hearings were
held before bar associations in many cities of the State, and
the Committee invited and sought the suggestions and advice of
judges and lawyers throughout the entire State. Many excellent
ideas and valuable constructive suggestions were obtained.

There are many lawyers who believe that the present Code
of Civil Procedure both in arrangement and detail affords an
adequate and complete system of practice. They may not be
opposed to all suggested changes in practice, but insist that such
as are adopted should be proposed as amendments to the present
code without change of arrangement. They are opposed to any
material extension of the power of the courts to make rules gov-
erning practice or the investing of an individual judge with the
discretion of dispensing in a particular case with a general prac-
tice rule or statute.

There are also many judges and lawyers, especially in the city
of New York, who have expressed themselves as favoring the
complete repeal of the Code of Civil Procedure, the transfer of
many provisions to the consolidated laws, the enactment of a
short practice act, and the adoption by a convention of judges
and lawyers of a body of rules and forms governing procedure.
They believe that such a system will be more elastic in operation,
its provisions more liberally construed and more readily changed
to meet new conditions than a statutory code. They thus favor
generally the plan proposed by. the Board of Statutory Consolida-
tion. Some, but not all, favoring this plan believe that indi-
vidual judges should be empowered to dispense with any court
SIMPLIFICATION oF CrviL Practicr 29

rule in the interest of justice. The Committee found that many
who favored such an enlargement of the power of judges, changed
their opinion after hearing the discussions at hearings held by
the Committee. Between the two extremes above mentioned great
diversity of opinion was found to exist.

There are lawyers and judges who believe that the code should
be retained as a practice manual to contain all essential statutory
regulations of practice and such other matters, which, while not
strictly procedural, are so closely allied to procedure, that incon-
venience would result if separated and distributed among the
consolidated laws as proposed by the Board. Such are many
rights of action and also certain rights in the course of an action,
which lawyers have been accustomed to regard as inseparable
from the procedure in the action itself: They see no merit in an
allocation of material whereby the subject of judgments, for
instance, as now contained in the Code, shall be distributed among
eight or nine consolidated laws, and in various supplementary rules.
Many of these lawyers are not opposed to a more logical arrange-
ment of the code, if accompanied by a thorough and analytical
official index covering the whole subject of practice and pro-
cedure, whether included in a practice manual, consolidated laws
or rules of court. Many favor an extension of the power of the
courts to make rules in respect of procedural matters and the
exclusion of such matters from the code or practice manual.
They also favor the adoption of many of the suggestions of the
Board of Statutory Consolidation recommending changes in the
practice.

The Committee can see no special merit in a short practice
act, as such, which merely declares the policy of the State. Nor
has the Committee been particularly impressed by the bitter
denunciation of the Code on account of its size. It can see
nothing to be gained by a general scattering of its provisions
among the consolidated laws for the purpose of reducing its
volume. The.size of the volume containing the statutes and
rules regulating civil practice is now, and will continue to be,
largely a mechanical matter. Regardless of the distribution of
material, the publishers will continue to regulate the bulk of the
volume covering the subject of civil practice by combining in
30 Report or Jorxnr LeqistarivE ComMirrer

one book practically all of the provisions, whether statute or
rules. The dimensions and weight of such volume will depend
largely upon the size of type adopted for the text, the paper
used, the number of annotations included, ete. The Committee
appreciates the arguments that have been made against the
arrangement of the code, the minute details of practice and pro-
cedure which it contains, the inclusion of provisions of substantive
law, and the lack of an adequate index. It has considered all of
the changes in practice proposed by the Board of Statutory Con-
solidation or suggested by reports of bar associations or the
correspondence of judges and lawyers.

The Committee has studied the whole subject of simplification
f~om every reasonable viewpoint. Some material changes in
the system of practice must be made without delay. The right
of every man, whatever may be his station in life, to have his
day in court and to have justice administered in a quick and
inexpensive manner, must be assured, and any change
in _the practice must have that end in view. Statutory
technicalities tend to defeat justice by increasing ‘the delays of
litigation and in numerous cases the cost to the honest litigant.
On the other hand, the uncertainty resulting from too few stat-
utory requirements and too elastic a system of practice works
just as great hardships in the individual case.

The practice should be made less rigid in some respects but
the greatest care must be taken in so doing. When rigidity is
removed the system must not be so loose and elastic that the
litigant may be worse off than he was under the former plan.
To draw the dividing line between offensive technicality and
proper elasticity is a task requiring the greatest skill and care
and intelligent discrimination.

Plan of Joint Legislative Committee

In accordance with the direction of the Legislature in 1917,
the Committee has reported to the Legislature a plan of simplifi-
cation and arrangement as follows:

First. The enactment of a separate Justice Court Act, a Surro-
gate Court Act, a Court of Claims Act, and a New York City
Court Act, provisions relating to these subjects not to be included

in the proposed general practice act.
SIMPLIFICATION OF CrivIL Practice Bel,

Second. The transfer to the consolidated laws of certain provi-
sions of the Code which are clearly substantive law and, without
inconvenience, may be disassociated from general practice provi-
sions. Also the transfer to the appropriate consolidated laws of
certain infrequent actions and proceedings whereby the bulk of
the proposed act will be reduced without causing inconvenience.

Third. The enactment of the “ Civil Practice Act” containing
such general practice regulations as in the judgment of the Joint
Committee should be enacted in statutory form. This plan in-
volves the elimination from the proposed act of many regulations
of procedural details which should be either entirely omitted or
be covered by court rules. In determining between statute
and court rules, the Committee has been guided generally by the
principle of including in statute, rights of action and rights aris-
ing in the course of an action, and in court rules, details of prac
tice and procedure. The Committee has included either in
statute or rule such proposed changes as it has determined to rec-
ommend.

Fourth. The adoption of court rules which will include such por-
tions of the present ‘General Rules of Practice”? as should be
retained together with present code provisions dealing with mat-
ters which properly may be the subject of regulation by the
courts.

Fifth, The preparation of an official index to cover all proposed
provisions whether contained in the Civil Practice Act, consoli-
dated laws or rules of court. One of the most frequent complaints
made to the Committee at its hearings was the lack of an adequate
index of the practice law. The indexes of the various editions
of the Code of Civil procedure do not contain references to the
civil practice provisions contained in the rules or in the consoli-
dated laws. With the entire revision of the practice, a new prac-
tice act, new and enlarged court rules, and the transfer of addi-
tional code provisions to the consolidated laws, the need of
a comprehensive index to include all practice provisions will be a
necessity.

Committee’s Special Court Acts

The Joint Legislative Committee recommends the adoption of
a separate Justice Court Act substantially as proposed by the
Board of Statutory Consolidation. The Committee has trans-
32 Rerorr or Jormnt LeaisitaTivE ComMirTrTe

ferred to this act and re-enacted, so far as practicable, other sec
tions of the Code of Civil Procedure now made applicable to jus-
tice court practice either hy direct cross reference or by the terms
of the provisions themselves. In some instances sections have been
rewritten. In such case the change has been stated in the note.
A few important changes of substance have beert made with a
view of conforming the practice in justice court to the practice in
courts of record. A defendant is permitted to move to vacate an
order of arrest on the papers on which it was granted or on other
proof. The present law seems to permit him only to attack the
regularity or sufficiency of the plaintiff’s papers. The subject of
pleadings has been substantially conformed to the practice in
courts of record by the transfer to this act of sections now appli-
cable to practice in courts of record. The plaintiff’s right to de-
mur is extended to any defense or counterclaim. Provision is
made for a judgment by stipulation where the parties voluntarily
appear and the plaintiff files a verified complaint. This is only
applicable in a case where a verified complaint is authorized,
which is limited to actions on contract. The provisions of the
Code of Civil Procedure relating to summary proceedings for the
recovery of real property have been for convenience re-enacted in
this act, and the sections of the code of civil procedure on the sub-
ject have been repealed. Summary proceedings may now be insti-
tuted in various courts of record, as well as in inferior courts not
of record, but as a'matter of fact in practice nearly all of these
proceedings are instituted in inferior courts.

The Joint Committee recommends the adoption of a separate
Surrogate Court Act substantially as proposed by the Board of
Statutory Consolidation. No attempt has been made to distin-
guish in this act between provisions which should properly
be statute and those which might be covered by rules
under the plan adopted in the Civil Practice Act, ‘for the
reason that chapter 18 of the Code, as the same now appears, con-
taining the practice in surrogates’ courts, was prepared by a com-
mission consisting of surrogates and upon being reported to the
Legislature by such commission in 1914 was enacted into law.
The Surrogate Court Act submitted herewith is identical in sub-
stance with chapter 18 of the Code as reported by the surro-
Sruprrercation oF Crvit Practice 33
gates’ commission and as amended by subsequent legislatures. In
making the chapter a separate act it was necessary to renumber
the sections, correct references and insert sections from other
parts of the Code which were made a part of chapter 18 by ex-
press reference. The proposed act is complete in itself, except that
references are made to the supreme court practice without specific
re-enactment for certain matters in which the procedure is the

‘same in both courts and which are matters of everyday experi-
ence to the practicing lawyer, as for example, the verification of
pleadings, the drawing of juries, trial practice, exceptions, and
similar matters. 2

The Committee recommends the adoption of a separate Court
of Claims Act regulating the practice and procedure in that court.
The Board of Statutory ‘Consolidation ineluded the provisions
governing this practice in the State Boards and Commissions Law
but the Joint Committee believes that such practice should be
dealt with in a manner similar to the practice in other special
courts. While the substance of the existing code provisions upon
the subject of practice in the Court of Claims has not been changed
in the proposed act, the provisions have been entirely rearranged
and obsolete provisions have been eliminated.

The Committee recommends the adoption of a separate New
York City Court Act. The act as proposed by the Committee con-
tains the substance of the provisions included in the act proposed
by the Board of Statutory Consolidation, except that the Commit-
tee has not re-enacted at length the provisions of the Code of Civil
Procedure relating to appeals generally, which are now made ap-
plicable by refercnce to the New York City Court. This would
involve the repetition in this act of about fifty sections of the Code
of Civil Procedure. The Committee is unable to see
‘any greater reason for re-enacting these sections in the City
Court Act than for re-enacting many other provisions applicable’
to all courts of record. These provisions will apply by their
terms to appeals from judgments and orders of courts of
record. The Municipal Court Code of the City of New
York contains no provisions relating to appeals except a few

9)
384 Report or Joint Leq@istativE ComMMITTEE

specially applicable to that court, and yet appeals from its de
cisions are governed by the general provisions of the Code of
‘Civil Procedure.

Committee’s Proposed Transfers To Consolidated Laws

The Committee has proposed the transfer to the Consolidated

Laws of many sections of the Code. These sections, for the
greater part, are substantive in their nature and should not be
included in the proposed act, They are all sections which can be
removed from the general practice provisions without occasioning
inconvenience.
_ In view of the fact that the original theory of the Throop Code
to combine in a single act all the provisions of statute law affect-
ing the organization of the courts and practice and procedure
therein, has been, abandoned by the Legislature in the enactment
of the 5 udiciary Law, the Decedent Estate Law and other provi-
sions, of the Consolidated Laws, the Committee now recommends
the transfer to the Clausolidated Laws of certain actions and pro-
ceedings which are only of occasional use or application. Some
of the actions and proceedings covered by this recommendation
are actions for dower and waste, actions to compel the determina-
tion of a claim to real property, foreclosure of mortgage by adver-
tisement, proceeding to discover the death of a life tenant, pro-
ceeding to change the name of an individual, action upon an un-
dertaking for jail liberties, action to vacate letters patent, action
to recover escheated property and action upon official bonds and
undertakings.

The enactment of a new chapter of the consolidated laws is
recommended by the Committee, such chapter to be known as the
“Condemnation Law.” The new law will embrace the provi-
sions upon the subject as now contained in the Code. The Board
of Statutory Consolidation in its general plan for uniformity in
‘ method for obtaining remedies in a court recommended that con-
demnation proceedings be changed to a civil action commenced by
the service of a summons, in which the claim of the plaintiff shall
he set out in a complaint instead of a petition. The Board also
transferred a number of the substantive provisions in the law to
the real property law. In preparing the proposed bill the Com-
SIMPLIFICATION oF Civit Practicr 35

mittee has not followed the recommendation of the Board but has
retained condemnation as a special proceeding, re-enacting the
provisions of the law without change of substance.

The proposals of the Committee covering the distribution of
code material in the consolidated laws are embraced in the Con-
demnation Law and in eighteen of the other legislative bills pro-
posed by the Committee in 1919, amending various existing chap-
ters of the consolidated laws.

Committee’s Proposed Civil Practice Act

The Committee has proposed a new practice act to be known as
the Civil Practice Act. This new act, with accompanying rules,
will take the place of the present Code of Civil Procedure and the
Code is recommended for repeal. The Civil Practice Act con-
tains 1560 sections. It is the judgment of the Committee that its
plan of combining in a single act to be adopted by the Legislature
all of the general practice provisions in the course of an ordinary
action, except such as should be covered by rules, is preferable for
many reasons to any plan which requires am examination of a
number of other acts before the general practice provisions may
be discevered. The Committee has included in its proposed
Civil Practice Act the code provisions upon the subject of limita-
tions of actions, evidence, costs, fees and disbursements, particu-
lar actions generally. The act includes practice provisions which
establish rights of action and also rights arising in the course of
an action. Many details of procedure now contained in the Code
will be embodied in rules of court. In order to avoid confusion
between references to such act and to the Code of Civil Procedure,
the Committee has suggested “‘ Civil Practice Act” as the title
for the new statute. The same name was adopted by the Board
of Statutory Consolidation.

The arrangement of the contents of the Civil Practice Act pro-
posed by the Committee is indicated by the following syllabus of
the act as introduced in the Legislature at the Session of 1919.

Civil Practice Act

Article 14. Short title; construction; definitions ($$ 1-9)
2. Limitations of time (§§ 10-61)
3. Courts, judges and referees (§§ 62-81)
36

Article .

oT

Report or Jomt Leqistative CommirrEer

23.
24,
25.
26.
‘27.
28.
29.
30.
31.
32.

33.

GeyEraL Practice Provisions

. Abatement and continuance (§§ 82-95)

. Consolidation and severance (§§ 96, 97)

. Extension of time ($§ 98, 99)

. Filing papers (§§ 100, 101)

. Mandates (§§ 102-104)

. Mistakes, defects and irregularities (§§ 105-112)
. Motions (§§ 113-119)

. Notice of pendency (§§ 120-125)

. Oaths of referees and other officers (§ tae)

. Orders (§§ 127-132)

. Payment into court and out of court (§§ 133-137)
. Preferences (§§ 138-143)

. Publication (§§ 144-147)

Security (§§ 148-162)

. Service of papers (§§ 163-166)

. Stay (§§ 167-169)

. Stipulation (§ 170)

. Tender and offer ($§ 171-179)

. Want of prosecution (§§ 180, 181)

ComMENCcEMENT oF ACTION
Venue (§§ 182-190)

Parties (§§ 191-217)

Summons (§§ 218-235)
Appearance (§§ 236-240)
Pleadings (§§ 241-284)
Interpleader (§§ 285-287)

PREPARATION FOR TRIAL

Depositions taken and to be used within the State
(S8 288-302)

Depositions taken without the State for use within
the State (§§ 303-326)

Depositions taken within the State for use without
the State ($§ 327-329)

Perpetuation of testimony in real property actions
(§§ 330-338)

Discovery and inspection (§§ 339-343)
Article 34

35.

36.

37.

38.
39.
40.
41.

42.

43.
44,
45.
46.

47.

48.
49.

50.

Smeurication or Civin Practice 37

EvipENcE
Evidence (§§ 344-435)

Tran
Trial (§§ 486-486)

JUDGMENT

Judgment (§§ 487-563)

Morions ror New Trias

Motions for new trials (§§ 564-571)

APPEALS

Appeals; general provisions (§§ 572-602)

Appeals to the court of appeals (§§ 603-621)

Appeals to the appellate division of the supreme
court (§§ 622-635)

Appeals to the supreme court from inferior courts
(88 636-644)

Appeals from a determination in a special proceed-
ing (§§ 645-648)

EXxEcurions

Executions generally (§§ 649-677)

Executions against property (§§ 678-777)

Executions against the person (§§ 778-786)

Proceedings supplementary to execution (§§ 787-
827)

ProvistonaL REMEDIES

Arrest, injunction and attachment; general provi-
sions (§§ 828-839)

Arrest; when allowed (§§ 840-846)

Arrest; granting, executing and vacating the order
(§§ 847-860)

Arrest; discharging defendant; bail on deposits
(§§ 861-878)
38 Revortr or Jory Laecisuarive ComMirrer

Article 51.
52.

53.
54.

55.

56.
57.

58.
59.
60..

61.
62.

63.

64.
65.
66.
67.
68.
69.
70.
71.

72.
73.

74,
75.

Arrest; charging and discharging bail (§§ 879-889)

Injunction; granting and service of the order
(§$§ 890-897)

Injunction; security (§§ 898-910)

Injunction; vacating or modifying the order
(§§ 911-915)

Attachment; when allowed; obtaining warrant
(§§ 916-925)

Attachment; executing the warrant (§§ 926-961)

Attachment; vacating or modifying the warrant
(§§ 962-965)

Attachment; discharge (§§ 966-973)

Attachment; two or more warrants (§§ 974981)

Attachment; proceedings after vacation of warrant or
discharge of ‘attachment, or after judgment
(§§ 982-987)

Receivers (§§ 988-991)

Disposition of property in litigation (§§ 992-994)

ParticuLtar Actions AND ProcrEpines

Real property actions; general provisions (§§ 995-
1008)

Actions to recover real property (§§ 1004-1025)

Action for partition (§§ 1026-1089)

Action to foreclose mortgage (§§ 1090-1101)

Action to recover a chattel (§§ 1102-1144)

Action to annul a marriage (§§ 1145-1160)

Action for a divérce (§§ 1161-1175)

Action for a separation (§§ 1176-1180)

Matrimonial actions; provisions applicable to two or
more (§§ 1181-1191)

Action for penalty, forfeiture or forfeited recogni-
zance (§§ 1192-1199)

Actions by judgment creditors (§§ 1200-1211)

Actions against joint debtors (§§ 1212-1216)

Actions or proceedings in behalf of the people; gen-
eral provisions (§§ 1217-1222)
Article 76.

i.

ce
79.
80.
81.
82.
83.

84.

85.
86.
87.

88.
89.

90.

Smmpeurrication oF Civin, Pracrice 39

Action by people for usurpation of office, franchise
or corporate right (§§ 1223-1236)

Action by people founded upon the spoliation or
other misappropriation of public property
(§§ 1237-1244)

Habeas corpus and certiorari to inquire into cause of
detention (§§ 1245-1297)

Certiorari proceeding (§§ 1298-1327)

Mandamus proceeding (§§ 1328-1355)

Prohibition proceeding (§§ 1356-1370)

Proceeding for appointment’ of committee of incoma-
petent; powers and duties of committee (§§ 1371-
1399)

Proceeding for disposition of real property of infant
or incompetent (§§ 1400-1424)

Arbitration (§§ 1425-1446)

Costs, DispursEMENTS AND Frns

Costs; allowances and awarding; liability for
(8§ 1447-1480)

Costs; amount of; additional allowances; disburse-
ments (§§ 1481-1498)

Costs; security for (§§ 1499-1508)

Costs; taxation (§§ 1509-1515)

Fees (§§ 1516-1549)

Savine Crauses; Repeats; Errects
Saving clauses; repeals; when to take effect
(§§ 1550-1560)

Committee’s Proposed Changes in Practice

In the Civil Practice Act proposed by the Joint Committee
many changes in practice have been suggested, all of which, in
the judgment of the Committee, will tend toward the betterment
of the system.of practice. Some of the recommendations of the
Committee as included in its practice act are outlined in the
following pages. References in this outline to sections marked
“OC. P. A.” are to the Committee’s Civil Practice Act as
appended to this report.
40 Rerort or Joint LucisLarive ComMMItrEr

JOINDER oF PARTIES

A number of broad provisions upon the subject of joinder of
parties have been proposed by the Committee.
In general, the sections cover the following points:

1. Non-joinder or misjoinder of parties shall not defeat an
action or special proceeding. (C. P. A. § 192.)

2. New parties may be added or substituted and parties mis-
joined may be dropped at any stage of the case. (C. P. A. § 192.)

3. All parties may be joined as plaintiffs in whom any right
to relief in respect of or arising out of the same transaction or
series of transactions, is alleged to exist, whether jointly, sever-
ally or in the alternative where if such persons brought separate
actions any common question of law or fact would arise. (C.
P. A. § 209.)

4, All persons may be joined as defendants against whom the
right to any relief is alleged to exist, whether jointly, severally
or in the alternative; and judgment may be given against such
one or more of the defendants as may be found to be liable,
according to their respective liabilities. (C. P. A. § 211.)

5. It shall not be necessary that each defendant shall be inter-
ested as to all the relief prayed for, or as to every cause of action
included in any proceeding against him, but the court may make
such order as may appear just to prevent any defendant from
being embarrased or put to expense by being required to attend
any proceedings in which he may have no inferest. (C. P. A.
8 212.)

6. Where the plaintiff is in doubt as to the person from whom
he is entitled to redress, he may join two or more defendants to
the intent that the question as to which, if any, is liable and to
what extent, may be determined between the parties. (C. P.
A. § 213.)

The foregoing provisions are modeled largely upon the English
practice rules and are practically identical in language with the
English practice and with rules recommended by the Board of
Statutory Consolidation.
SrmpriricatTion oF Crvin Practice 41

JOINDER OF Causes or ACTION

The provisions now contained in section 484 of the Code of
Civil Procedure relating to the joinder in the same complaint of
two or more causes of action have been broadened in language in
the section as proposed by the Committee. (C. P. A. § 258.)

CoNSOLIDATION AND SEVERANCE

A general section is included in the new practice providing
that for the purpose of expediting the determination of contro-
versies, an action may be severed and actions may be consolidated
whenever it can be done without prejudice to a substantial right.

(C. P. A. § 96.)

SUBSTITUTED SERVICE OF SUMMONS

The Code provisions relating to substituted service of summons
have been clarified. In most instances no change has been
made in the substance, the amendments being mainly as to form
of expression. The Committee gave careful consideration to a
radical broadening of the powers of the courts but finally decided
that the jurisdiction of a court and due process of law in the
course of an action were so dependent upon the sufficiency of
the service of the process of the court that it would not be best
to throw aside all of the existing restrictions regulating the
substituted service of a summons.

Demurrers ABOLISHED

In the Civil Practice Act reported by this Committee, the
demurrer has been abolished. An objection to a pleading in
point of law for a ground appearing on the face of the pleading
may be taken under the new practice by motion or by the an-
swering pleading, except that objections defined by rules of court
relating only to the form and manner of pleading may be taken
by motion only if the rules so provide. The demurrer has been
abolished in England and New Jersey and its abolition in this
State is recommended by the Board of Statutory Consolidation,
the New York State Bar Association and other bar associations.
The Committee’s proposed statutory provisions upon the subject
of objections to pleadings are contained in sections 277-284 of
the Civil Practice Act.
42 Report or: Joint LeatsiativE CoMMITtER

Mistakes, Durects anp [rrEGguLARITIEs

The Committee in its proposed practice act has recom-
mended several new sections upon the subject of the correction
of mistakes, defects and irregularities and the supplying of
omissions. Justice is often defeated by too strict adherence to
laws regulating these matters. The enactment of the broad pro-
visions proposed would be a great step in the liberalization of
practice and would obviate many of the technicalities of the
existing practice. The sections have been drawn in very general
language and to meet technical objections as they might arise
at any stage of an action or proceeding, even on appeal. The
sections are as follows:

“At any stage of any action, special proceeding or appeal, a
mistake, omission, irregularity or defect may be corrected or
supplied, as the case may be, in the discretion of the court, witk
or without terms, or, if.a substantial right of any party shall
not be thereby affected, such mistake, omission, irregularity or
defect must be disregarded.” (C. P. A. § 105.)

“Upon a motion for a new trial or upon appeal, an error in a
ruling of the trial court must be disregarded if a substantial right
of any party shall not thereby be affected.” (C. P. A. § 106.)

“No action or special proceeding shall fail or be dismissed
on the ground of a mistake in the court in which the action o1
proceeding is brought, but in such case, a justice of the
supreme court, upon such terms as may be just, may remove the
action or proceeding to the proper court, by order. Where an
order: for. removal is made as prescribed in this section, the
subsequent proceedings must be the same as if the action or
proceeding had been instituted in the court to which the removal
is made.” (C. P. A. § 110.)

“ Whenever in any action or special proceeding it shall appear
at any stage of the proceedings, or upon appeal, that the appro-
priate remedy upon the facts pleaded or alleged, or proved, is
different from that asked for in the pleadings or corresponding
papers, the proceedings may be amended upon such terms as
may be just, if jurisdiction exists to grant the proper remedy,
and may be continued and determined by the court ‘and at the
term where then pending, or remitted to the proper term or
SIMPLIFICATION oF Civtn PRActiIcE 43°

court to be disposed of, in order that the relief may be finally
granted which is appropriate to the facts, to the same extent as
if the application had been in the first instance for the relief
granted. The court may correct by amendment all defects and
irregularities in matters of form or procedure and may bring in
all parties necessary to completely determine the matter and
award the appropriate relief upon the facts established.” (C.
P. A. § 111.)

Distinction Berwern Court Orprers anp Jupazs’ OrprErs

The distinction between court orders and judges’ orders when
in effect made by supreme court justices has been abolished
in the new practice by the following provision: “An order
made by a justice of the supreme court, out of court, shall not
be void on the ground that a statute or rule, in terms or in
effect, requires the motion therefor to be made to, or authorizes
the order to be made only by, such court, unless the order be
made outside of the county or judicial district in which an appli-
cation to the court for such order has been authorized.” (C. P.
A. § 129.) This section is not intended to give a county judge
the power to make a “court” order in a supreme court action.

Untrormiry 1x ProvisionaL REMEDIES

The code sections relating to orders of arrest and temporary
injunctions and to warrants of attachment, were examined with
a view to providing a greater uniformity in the provisions relat-
ing to these provisional remedies. Because of the dissimilarity
of these remedies in a great many respects it was found impos-
sible to devise a workable scheme making the proceedings in each
case uniform throughout. A number of new sections are in-
cluded in the civil practice act as proposed by the Committee
making the practice as uniform as possible so far as relates to
the application for the order or warrant, the proof on the applica-
tion or hearing, the granting of the remedy, the security required,
recital of grounds, new proof on an application to vacate and the
granting of relief after a counterclaim has been interposed, (C.
P. A. $§ 828-839.)
44 Report or Jornt Lrersuative ComMirrer

In addition to making the provisions more uniform, a number
of sections relating to the various provisional remedies have
been clarified in language and a number of amendments have
been made to existing practice in the interest of simplicity, the
changes being indicated in each instance in the footnotes follow-
ing the sections. Because of the nature of the relief provided
for in provisional remedy proceedings and the interference with
liberty of action or property rights authorized in each case, the
Committee has retained in statutory form the greater part of
the regulations upon these various subjects.

Deposirions or Partizs aND WITNESSES

The Committee devoted much study to an examination of the
subject of taking of depositions of parties and witnesses. An
entire revision of this portion of the existing practice was made
by the Committee and copies of the tentative sections and rules
upon the subject were widely distributed for discussion and sug-
gestion. The matter also received special attention at hearings
held before bar association committees. A wide divergence of
opinion was found to exist as to the most practical method of
attempting to clarify and simplify the practice as to examina-
tions before trial. In view of the apparent opposition to many
of the radical changes suggested by the Committee in its pre-
liminary publications, it was decided that the provisions upon
this subject should be restored, for the present, in practically
the same language in which they now exist. Some amendments
have been made. The Committee recommends that the subject
of examination of parties and witnesses before trial be further
considered by the lawyers of the State to the end that a more
simple procedure may be presented to the Legislature.

Discovery anp Inspection
Two new sections relating to discovery and inspection are
recommended for adoption in the new practice as follows:
“Every party to an action shall be entitled, at any time, by
notice in writing, to give notice to any other party, in whose plead-
ings or affidavits reference is made to any document, to produce
SIMPLIFICATION OF CiviL PRractTicE 45

such document for the inspection of the party giving such notice,
or of his attorney, and to permit him or them to take copies
thereof; and any party not complying with such notice shall not
afterwards be at liberty to put any such document in evidence on
his behalf in such cause or matter, unless he shall satisfy the
court that such document relates only to his own title, he being a
defendant, or that he had some other cause or excuse which the
court shall deem sufficient for not complying with such notice;
in which case the court may allow the same to be put in evidence
on such terms as to costs and otherwise as the court shall think
fit.” (C. P. A. § 342.)

“The court, on the application of any party to an action, also
may make an order requiring any other party to state by affidavit
whether any one or more specific documents, to be specified in the
application, is or are, or has or have at any time been in his pos-
session or power, and, if not then in his possession, when: he
parted with the same, and what has become thereof., Such appli-
cation shall be made upon an affidavit stating that in the belief of
the deponent the party against whom the application is made has,
or has at some time, had, in his possession or power the document
or documents specified in the application, and that they relate to
the matter in question in the case or matter, or to some of them.”
(C. P. A. § 343.)

Each of the above sections is taken from the English practice.
Both have been approved by the bar and will facilitate practice.

Review or Orper Denyrna New Triat on APPEAL FROM
JUDGMENT

A new provision has been included in the practice (C. P. A.
§ 595) which will permit on appeal from a final judgment, the
review of an order denying a motion for a new trial, although not
specified in the notice of appeal. This provision excepts an order
which has already been reviewed upon a separate appeal there-
from by the court or the division or term of the court to which the
appeal from the final judgment is taken. A copy of the order
denying the motion for a new trial shall be transmitted to the
Appellate Court with the other papers on appeal. (C. P. A.
88 592, 630.)
46 Revorr or Jowr Leaisuative Commirrer

' Reversar py Appettarr Division tro Sprciry Grounps

A new section has been recommended by the Committee (C. P.
A. § 634) requiring a decision of the appellate division reversing a
judgment or order to state the exact ruling of the court, that is,
whether or not a reversal was made upon the facts or upon the
law or upon both the law and the facts or that the facts were
affirmed and that the reversal was upon the law and also whether
or not the decision was unanimous as to an issue or party.

ey

Exrensions or TIME

A new section (C. P. A. § 98) formed in broad terms, relating to
extensions of time by a court or judge, is recommended by the
Committee. A similar provision in the English practice gives
the court the power to “abridge” the time for doing an act or
taking a proceeding but this portion of the English rule was not
adopted by the Committee. The Committce’s section covers
“ special proceedings” which are not covered by the code sec-
tions upon this subject.

ATTEMPT TO COMMENCE an ACTION

The provisions of section 399 of the Code relating to the effect
of an attempt to commence an action in a court of record have
been broadened in the Committee’s proposed Civil Practice Act by
providing that in order to entitle a plaintiff to the benefit of the
section, the delivery of a summons to an officer must be followed
within sixty days after the expiration of the time limited for the
commencement of the action by personal service of the summons,
as now required, or else by service without the State, or by the
first publication of the summons, as against that defendant, pur-
suant to an order, as now required, or else by substituted service
upon the defendant within the State pursuant to an order.
CO. BP. A, 8 07.)

Writs ABOLISHED
The writs of mandamus, prohibition and of certiorari to re-
view the determination of an inferior tribunal, have been abol-
ished and the relief heretofore obtained under the provisions of
the Code will be obtained by order under the new practice. (C,
SIMPLIFICATION oF CivIL Pracrice 47

P. A. §§ 1298, 1828, 1356.) In each of these cases under the
present practice an order must be secured first before the writ is
allowed by the court and issued by the clerk. Under the proposed
practice the order will be granted and thereupon entered in the
county clerk’s office and certified copies served, thereby doing
away with the necessity of a writ. The Committee suggests that
the certiorari proceeding now provided in the Tax Law might well
be an action as it is a proceeding de novo and not such a
review as is contemplated in the code proceeding.

The writs of habeas corpus and certiorari to inquire into the
cause of detention provided by sections 2015-2066 of the Code
have been retained in view of the provisions of Section 4, Article
1 of the State Constitution which provides that “the privilege of
the writ of habeas corpus shall not be suspended unless when, in
cases of rebellion or invasion, the public safety may require its
suspension.” It might be constitutional to abolish the “ writ”
itself if the right to the same relief were recognized and
provided for by appropriate order, but such action would un-
doubtedly result in litigation. The report of the Law Reform
Committee of the State Bar Association in 1899 in referring to
the writ of habeas corpus, said: “ Habeas corpus is unlike the
other topics in every respect except the use of a writ and requires
entirely distinct and separate treatment. It is not clear but that
the writ should be retained in that single case on account of its
associations and the place it holds in the minds of English speak-
ing people.”

The writ of habeas corpus to bring up a person to testify has
been abolished in the new practice and an order substituted.
(C. P. A. §§ 430-435.)

The writ of assessment of damages now covered by scctions
2103-2119 of the Code of Civil Procedure, has been omitted
as unnecessary and obsolete.

Fitine Parrers
Section 824 of the Code now provides that the summons and
each pleading in an action must be filed with the clerk by the
party in whose behalf it is served within ten days after service.
This requirement is observed rurely at the present time. The
48 Report or Joint LeqisLativE ComMMITTEE

provision has been amended by the Committee so as to provide
for filing “ within five days after notice from the adverse party
requiring such filing and upon failure to comply with such notice,
the court or a judge, in its or his discretion, may order that such
summons or pleading be deemed abandoned either absolutely or
upon failure to file within a time, if any, permitted by the order.”
(C. P. A. § 100.) This section as thus amended will provide a
method of requiring the filing whenever it shall appear neces-
sary or proper.

Rererzes, Recztvers, Commissioners anp APPRAISERS

Uniform provisions have been included in the Civil Practice
Act recommended by the Committee (C. P. A. §§ 81, 126) provid-
ing for the removal of a referee, receiver, commissioner or
appraiser, the appointment of successors and the oaths of such
officers.

SBRVICE OF PAPERS

The provision now contained in section 801 of the Code,
applicable to New York city only, providing that deposit in a
braiich post-office shall have the same effect as a deposit in the
general or principal post-office, has been extended in the new
practice so that it is applicable generally throughout the State.
(C. P. A. § 164.)

Srrvice or Summons on INcoMPETENT PERSONS

A new provision is recommended in the Civil Practice Act
providing that where a defendant has been judicially declared
incompetent to manage his affairs, and a committee has been
appointed, the court in its discretion, may make an order dis-
pensing with delivery of the summons upon the defendant in
person. (C. P. A. § 225, subd. 2.)

Code section 429 authorizes the court to dispense with such
delivery in the case of a lunatic if the delivery to him will tend
to aggravate his disorder, or to lessen the probability of his
recovery. Under section 2320 the jurisdiction of the court
extends to the custody of the person and the care of the prop-
erty of a person incompetent in consequence of lunacy, idiocy,
habitual drunkenness or senility. There seems to be no reason
SIMPLIFICATION OF CiviL PRactTICcE 49

why the court should not in any case be authorized to dispense
with the delivery of a copy of the summons to such incompetent
under proper circumstances.

SUBSTITUTED SERVICE or SuMMONS Upon AN InFANT oR INCOM-
PETENT PERSON

The Civil Practice Act contains a new provision to the effect
that an order for service of a summons by publication upon an
infant or incompetent defendant may be made where complete
personal service of the summons cannot be made within the
State, after due diligence, upon such infant or incompetent,
whether a resident or non-resident of the State, by delivering
a copy to the person or persons to whom a copy is required to
be delivered in the case of personal service. (C, P. A. § 232,
subd. 4.) The same section further provides that if the defend-
ant be an infant, the affidavit upon which the order is obtained
must state the name and last known residence, within or without
the State, of the father, mother or guardian of such infant, or
other person upon whom personal service would be made, or
that the name and such residence, or either, of such person is
unknown -to the applicant. These provisions have been included
in the new practice to cover cases where it is now found prac-
tically impossible to secure complete service of a summons upon
an infant or incompetent under the present code.

Service oF SumMons WHERE THE PEOPLE ARE A PARTY

The Code now contains several sections which provide that
in a case where the people of the State are a party defendant,
the summons shall be served upon the Attorney-General, who
may appear in behalf of the people. See Code section 447 as to
transfer tax cases; section 1594 as to partition; section 1598
as to dower; section 1627 as to foreclosure of mortgages. A
new provision has been included in the Civil Practice Act stat-
ing that in any case where the people are by law a proper party
defendant, the summons shall be so served, and also the further
provision that the delivery of a copy of the summons to a
Deputy Attorney-General shall be equivalent to personal service
upon the Attorney-General. (C. P. A. § 221.)
00 Revorr or Joint LeqistarivE CoMMIrrEE

APPEARANCE oF Parry

The provision of Code section 55 to the effect that if a party
has an attorney in the action, he cannot appear to act in person,
where an attorney may appear or act either by special provision
of law, or by the course and practice of the court, has been
changed to broaden the right of appearance by a party by pro-
viding that a party having an attorney may so appear to act in
person in the action with the consent of the court. (C. P. A.
§ 236.)

ACTIONS BY TIE PEOPLE

Section 1984 of the Code, now applicable only to certain
actions brought in behalf of the people of the State, and pro-
viding that sweh actions must be brought in the name of the
people of the State, has been broadened to apply to all actions
brought in behalf of the people, except actions to recover penal-
ties or forfeitures expressly given by law to proper officers.

(C..P. A. § 1217.)

ADDITIONAL COUNTERCLAIMS

Code section 501 specifying the cases in which a counter-
claim can be interposed has been changed to permit the allow-
ance of counterclaims against the plaintiff and third persons.
(C. P. A. § 266.) The new practice also provides that where a
defendant sets up any counterclaim which raises questions
between himself and the plaintiff along with any other persons,
he must set forth the names of all persons who, if such counter-
claim were to be enforced by cross action, would be defendants
to such cross action. ‘Where any such person is not a party to
the action, he shall be summoned to appear by being served with
a copy of the answer and he thereby becomes a defendant in the
action as if he had been served with a summons. Any such
person named in an answer as a party to a counterclaim may
reply thereto within the time within which a defendant might
serve an answer to a complaint or he may serve a notice of
appearance on the party interposing the counterclaim. (OC. P.
A. § 271.) These provisions are derived from the English
practice.
SIMPLIFICATION oF CrviL Practicr 51

Action Acainst Corporation on Promissory Nore

Code section 1778 now provides that in an action against a
foreign or domestic corporation to recover damages for the non-
payment of a promissory note or other evidence of debt, unless
the defendant obtains and serves with his answer or demurrer
an order directing a trial of the issues, the plaintiff may
take judgment as on a default. The provision is technical. In
practically every such case such order is granted as a matter of
course upon proof no stronger than verification.’ The Com-
mittee, therefore, has omitted the requirement of an order in
such cases and provides as a substitute that the answer of the
corporation must be verified. (C. P. A. § 252.)

JUDGMENTS ON PuiEApincs or ADMISSION oF Part oF CavusE

A broad general section has been recommended by the Com-
mittee providing that judgment may be rendered by the court
in favor of any party or parties and against any party or
parties at any stage of an action or appeal if warranted by the
pleadings or the admissions of a party or parties and a judg-
ment may be rendered by the court as part of a cause of action,
and the action proceed as to the remaining issues, as justice may
require. (C. P. A. § 491.)

Errect or JupeMrent Dismissine ‘COMPLAINT

The Code provides that a final judgment dismissing a com-
plaint “either before or after a trial” does not prevent a new
action unless it expressly declares, or it appears by the judg-
ment roll, that it is rendered upon the merits. The Committee
has adopted the suggestion of the Board of Statutory Consoli-
dation and various bar associations that the rule, while remain-
ing the same as to a dismissal before the close of the plaintiff's
evidence, shall be changed as to a dismissal at any time there-
after and in such case the dismissal will be deemed to be a
final determination on the merits and will bar a new action
unless the court shall dismiss without prejudice. (C. P. A.
§ 497.)

 
52 Report or Joint LeqisuativE ComMITTEE

PLAcE oF TRIAL oF Issue TRiaBLE BY Court

‘Section 990 of the Code now provides that an issue of law,
or an issue of fact triable by the court without a jury, “arising
in a county where no special terms distinct from trial terms
are appointed to be held for the trial of such cases” may be
tried at a special term in any county within the judicial dis-
trict embracing the county wherein the action is triable. The
limitation in the Code restricting the application of the section
to cases where no special terms distinct from trial terms have
been appointed has been emir, in the new practice and the
section broadened so that in any “court” cause arising in any
county, the court, in its discretion, may send the case to any
other county in the district for trial, or the parties may so
stipulate for such trial. (C. P. A. § 185.)

Bonps anp UNDERTAKINGS

Several new provisions relating to bonds and undertakings in
actions and proceedings have been recommended by the Com-
mittee.

A new provision has been included in the Civil Practice Act

providing a uniform general statement of the condition of a
bond or undertaking in a civil action or special proceeding,
namely, that such bond or undertaking shall be to the effect that
the principal shall faithfully and fairly discharge his duties and
fulfill the obligations imposed by law or rules and the special
order of the court. (C. P. A. § 148.)
. Section 1835 of the Code relating to the method of taking
exceptions to sureties to an undertaking on appeal to the Court
of Appeals and to the justification of the sureties thereupon,
has been included in the new practice, but broadened so as to
extend the application of the provisions to bonds and undertak-
ings generally in actions or special proceedings. (C. P. A. §
151.)

A new general section has been ineluded in the Civil Practice
Act relating to security to be required in the course of an action
or proceeding for protecting the interests of an infant, lunatic,
idiot or habitual drunkard. The section provides that such
security shall be in the form of a bond of an approved surety
company or the bond of individuals secured by an approved
Srmpuirtcation oF Crviu PracticE 58

mortgage on real estate, in an amount double that of the prop-
erty involved, including the interest or income during the
minority of the infant or during the incompetency as the case
may be, and approved as to form and sureties by the court in
which the action or proceeding is pending or by a judge thereof.
(C. P. A. § 154.) A section in much the same language was
recommended by the Board of Statutory Consolidation in its
report.

A new section has been placed in the proposed act providing
that wherever the act or the rules authorize or require cash bail
or security, unregistered bonds of the United States may be
delivered to the proper officer or person in lieu of cash to the
amount of the face value of the bonds. (C. P. A. § 157.)

Section 1314 of the Code now provides that on an appeal by
a domestic municipal corporation no security is required to
perfect the appeal unless the court in or from which the appeal
is taken requires security to be given. In the new practice it is
provided that such security may be required by order of the
court in or from which the appeal is taken, except that if the
appeal be from an order in a special proceeding made by the
judge of a court of record, such security may be required by
order of the Supreme Court. (C. P. A. § 586.)

Leave to APPEAL TO THE Court or APPEALS

A new provision has been inserted in the Civil Practice Act
which provides that if the Court of Appeals be in recess during
all or a part of the period of thirty days when an application
for leave to appeal must be taken to such court after refusal
of the appellate division to grant such leave, the application may
be made upon notice served within such period- to be heard
after the expiration thereof, if noticed for a day not later than
ten days after the court shall have reconvened. (O. P. A. § 606.)

Guarpran Ap Lrrrém’s LiaBaLiry FoR Costs

Code section 429 provides that a guardian ad litem for an
infant plaintiff shall be responsible for costs “ except where such
infant prosecutes as a poor person.” Code section 477 provides
that a guardian ad litem for an infant defendant “ is not liable
for the costs of the action, unless specially charged therewith
54 Report or J ont, LeaistaTIvE ComMITTEE

by the order of the court, for. personal misconduct.” Code
section 3249 provides that “‘ where costs are awarded against an
infant plaintiff, they may be collected by execution or otherwise,
from his guardian ad litem, in like manner as if the latter was
the plaintiff.”

In lieu of the, above provisions, a new section has been included
in the new practice (C. P. A. § 205), providing that “a
guardian ad litem for an infant is not liable for costs unless
specially charged therewith by. the order of the court,” thus
_placing the matter of the responsibility of the guardian ad litem
for costs in every case in the hands of the court.

TENDER AND OFFER

The conte has retained provisions providing for the tender
of money after suit brought and for the payment into court in
case of refusal to accept the tender, and providing also for offer
to compromise. (C. P. A. §§ 171-179.) In including the pro-
visions as to tender the Committee has changed the practice in
certain respects. At the present time, when a defendant pays a
sum of money into court as a tender in an action, it has been held
that “the moneys belonged to the plaintiff from the moment of
their deposit by force of their payment into court.” Taylor v.
Brooklyn Elec. R. R. Co., 119 N. Y. 561, 563. In case the plain-
tiff accepts the defendant’s tender, he can proceed with the action
nevertheless. Resort, therefore, to. these provisions is rare.
The Committee in its proposed sections has changed the existing
rule that title vests in the plaintiff, immediately upon payment
into court. Under the Committee’s. suggested sections, if a plain-
tiff accepts a tender he will not be permitted to continue the action
and if he refuses to accept and subsequently fails to recover judg-
ment, he will not be entitled to take out of court-the moneys paid
in by defendant as a tender but if he recovers judgment, the sum
paid into court shall apply on the judgment and the surplus, if
any, will be refunded to the defendant. The Committee also has
extended the rule as to tender by permitting a plaintiff to make
a tender to defendant after a counterclaim has been interposed in
like manner and with like effect as a tender by a defendant. These
two changes are set forth in language similar to the provisions
now contained in the New Jersey practice.
SIMPLIFICATION OF CrviL Practice 55

Vestine oF TrtLte to Reat Property Arrrer Execution SaLe

The Committee has omitted from the Civil Practice Act (C. P.
A. § 732) the provision added to section 1440 of the Code by
the amendment of laws 1881, chapter 618. The Code section
now provides that if the title of the grantee under a sheriff’s deed
after a sale on execution is adjudged for any reason to be null and
void in an action brought for that purpose by the judgment debtor,
such judgment shall have no force and effect unless within twenty
days after the entry of such judgment, the plaintiff shall pay to
such grantee or his assigns the sum of money paid upon the sale
by the grantee with interest, including the costs and expenses of
the grantee in defending the action in which the judgment was
recovered and in the event of the judgment debtor’s failure to
pay such purchase money and expenses, within the time limit,
the title to the property shall be valid in the grantee. This pro-
vision has been omitted by the Committee because it was held by
the Court of Appeals in Gilman v. Tucker, 128 N. Y. 190 to be
unconstitutional. The court held that the amendment deprives
the owner of the property without due process of law and further
that the provision is unnecessary, existing provisions being
sufficient.

Marrimoniat AcTIons

In the Civil Practice Act proposed by the Committee, several
‘important changes were suggested in reference to the annulment
of marriages. Subsequent to its introduction by the Committee,
two bills drafted by the Committee’s counsel passed the Legis-
lature and were ‘signed by the Governor, which carried into
effect the proposals of the Committee as to code sections 1742—
1744. Code section 1742 authorizing an action for an annulment
of a marriage by a woman, married under the age of sixteen
years, was repealed as obsolete. The amendment of section 7 of
the Domestic Relations Law increasing to eighteen years the age
of legal consent for both men and women superseded section 1742.

The difficulty in reference to the construction of sec-
tions 1743-1744 of the Code, the apparent effect of the language
of which sections, as amended, created a discrepancy as to the
cases in which a husband and wife might commence an action for
the annulment of a marriage has been removed. It had been held
at special term in several instances that while the wife was abso-
56 Report oF Jornt LeqrstativE ComMitrrEer

lutely barred from maintaining such an action, if she cohabited
with her husband after she had attained the age of eighteen years,
the husband was permitted to cohabit with his wife until he had
reached the age of twenty-one without being barred from the right
of annulment. The Committee believed that such effect was not
intended by the Legislature and therefore proposed the amend-
ment of the section so that a marriage should not be annuled at
the suit of a party who was of the age of legal consent at the
time it was contracted, or by a party who at any time after he or
she attained that age freely cohabited with the other party as
husband or wife. (C. P. A. §§ 1145-1146.)

Code § 1774 as included in the Civil Practice Act has been
‘amended to provide that the interlocutory judgment in an annul-
ment or divorce action may provide, in the discretion of the
judge, for the support and maintenance of the children of a
marriage until the entry of final judgment in addition to the pay-
ment of alimony. (C. P. A. § 1190.)

Committee's Suggestions as to Rules of Court

The Committee in preparing its proposed Civil Practice Act
and other bills containing material to be retained in the form
of statute eliminated many of the present Code sections. The
greater portion of such provisions were restated as suggested rules
of court. With these were included the present General Rules of
Practice. In some instances the original test has been rewritten,
but. in most cases the provisions have been left substantially
unchanged, the Committee believing that it would be better to
have the text in practically its original form before the body
charged with the work of revising the rules. The matter to be
placed in rules covers details of practice and procedure which
should be eliminated from the statutes. The Committee recom-
mends that the tentative rules presented by it be adopted until
such revised rules shall become effective.

Summary

The Committee has included in this report a general outline of
the work to which it has directed its efforts since it was created.
‘Some portions of the report have been included in previous reports
and publications of the Committee, but are restated here so that
SimpiiFicAtion oF Ciyit Pracricz 57

a summary of the views of the Committee as a result of its inves-
tigations might in the future be found embraced in one complete
report.

The Committee has had the co-operation of a large number of
the judges and lawyers of the State, and takes this opportunity
of expressing its appreciation of the valuable assistance rendered.
Special committees of the New York State Bar Association, the
Bar Association of the City of New York, the New York County
Lawyers’ Association, the Brooklyn Bar Association, the Associa-
tion of the Bar of the County of Bronx, and other bar associations,
appointed to consider the revision of the civil practice, have given
much time to the study of the subject and this Committee has
been glad to avail itself of the results of their work.

The Committee believes that its Civil Practice Act
will be found convenient and workable by judges and lawyers
generally, and that its proposed plan, carried to completion, will
go far toward establishing a better system of practice in our courts.

Dated at Albany, April 17, 1919.

Respectfully submitted,
J. Henry Watters, Chairman,
Cuartes D. Newton,
Joun Kyreut, ;
Cuaries W. Watton,
James A. Foiry,
Witriam B. CarsweE.t,
Aveusr C, FramMan,
Apram ELLENBOGEN,
ALEXANDER Taytor,
Frank Aranow,
Wituram 8. Evans,
Exiot TuckErRMAN,
Tuomas F. Curtey,
Cazsar B. F. Barra.

Joint Legislative Committee on
the Simplification of Ciwil Practice.
APPENDIX

[59]
CIVIL PRACTICE ACT

[61]
CIVIL PRACTICE ACT

AN ACT in relation to civil practice in the courts of the state of

New York

Phe People of the State of New York, represented in Senate
and Assembly, do enact as follows:

Article

1.

eo No

CIVIL PRACTICE ACT
Short title; construction; definitions ($§ 1-9).

. Limitations of time (§§ 10-61).
. Courts, judges and referees (§§ 62-81).

GENERAL PRACTICE PROVISIONS

. Abatement and continuance (§§ 82-95).
. Consolidation and severance (§§ 96, 97).
. Extension of time (§§ 98, 99).

. Filing papers (§§ 100, 101).

Mandates @§§ 102-104).
Mistakes, defects and irregularities (§§ 105-112).
Motions (§§ 113-119).

. Notice of pendency (§§ 120-125).
. Oaths of referees and other officers (§ 126).
. Orders ($§ 127-132).

Payment into court and out of court ($$ 133-137).

. Preferences (§§ 188-143).

. Publication (§§ 144-147).

. Security ($§ 148-162).

. Service of papers (§§ 163-166).

. Stay (S$ 167-169).

. Stipulation (§ 170).

21. Tender and offer ($$ 171-179).

. Want of prosecution (§§ 180, 181).

- + we

[63]
64 Report or Jott Leatsuative ComMMtirrer

COMMENCEMENT OF ACTION

Article 23. Venue (§§ 182-190).
24, Parties ($$ 191-217).
25. Summons (§§ 218-235).
26. Appearance (§§ 236-240).
27. Pleadings (§§ 241-284).
28. Interpleader (§§ 285-287).

PREPARATION FOR TRIAL

29. Depositions taken and to be used within the state
($§ 288-802).

30. Depositions taken without the state for use within
the state ($§ 303-826).

31. Depositions taken within the state for use without
the state (§§ 327-329).

32. Perpetuation of testimony in real property actions
(§§ 330-338).

33. Discovery and inspection (§§ 339-348).

EVIDENCE
34, Evidence (§§ 344-435).

TRIAL
35. Trial ($$ 436-486).

JUDGMENT
36. Judgment (§§ 487-563).

MOTIONS FOR NEW TRIALS
37. Motions for new trials (§§ 564-571).

APPEALS

38. Appeals; general provisions (§§ 572-602).

39. Appeals to the court of appeals (§§ 603-621).

40. Appeals to the appellate division of the supreme court
(§8 622-635).

41. Appeals to the supreme court from inferior courts
(§§ 636-644).

42. Appeals from a determination in a special proceeding

% (§§ 645-648).

Hcl :
Article 43.
44.
45.
46.

47,

48.

49,

50.

51.
52.

58.

54.

55.

56.
57.

58.
59.
60.

61.
62.

Civit Praotice Aor 65

EXECUTIONS

Executions generally (§§ 649-677).

Executions against property (§§ 678-777).

Executions against the person (§§ 778-786).

Proceedings supplementary to execution (§§ 787-
8277).

PROVISIONAL REMEDIES

Arrest, injunction and attachment; general pro-
visions (§§ 828-839).

Arrest; when allowed (§§ 840-846).

Arrest; granting, executing and vacating the order
(§§ 847-860).

Arrest; discharging defendant; bail on deposits
(§§ 861-878).

Arrest; charging and discharging bail (§§ 879-889).

Injunction; granting and service of the order
(§§ 890-897).

Injunction; security (§§ 898-910). :

Injunction; vacating or modifying the order
(§§ 911-915).

Attachment; when allowed; obtaining warrant
($$ 916-925).

Attachment ; executing the warrant (§§ 926-961).

Attachment; vacating or modifying the warrant
(S§ 962-965).

Attachment ; discharge (§§ 966-973).

Attachment; two or more warrants (§§ 974-981).

Attachment; proceedings after vacation of warrant
or discharge of attachment, or after judgment
(§§ 982-987).

Receivers (§§ 988-991).

Disposition of property in litigation (§§ 992-994).

PARTICULAR ACTIONS AND PROCEEDINGS

63.

64.
‘65.
66.
67.

Real property actions; general provisions (§§ 995-
1003).

Actions to recover real property (§§ 1004-1025).

Action for partition (§§ 1026-1089).

Action to foreclose mortgage (§§ 1090-1101).

Action to recover a chattel (§§ 1102-1144),

3
6650: Reporr or Joy LeeatsrAtive’ Commirrer

Article 68,
69.
70.:
71,

73.
74.
75,

76:

79.
_{... 80. Mandamus proceeding, (§§ 1828-13855).
81.
82.

pie
ai
1

ec

84.

86.

“19.

COSTS, DISBURSEMENTS AND FEES
86.

Action to annul a marriage’ (§§ 1145-1160).

Action for a divorce (§§ 1161-1175)... bo

Action fora separation (§§ 1176-1180).

Matrimonial actions; provisions applicable to. two or

» Moore (§§, 1181+1191). ty

Action for penalty, forfeiture or forfeited recogni-
zance (§§ 1192-1199).

Actions by judgment creditors’ (§§ 1200-1211).

Actions against joint debtors (§§ 1212-1216),

Actions or proceedings in behalf of the people; gen-
eral provisions .(§§ 1217-1222).

Action by people for usurpation of office, Erected or
corporate right (§§ 1223-1236).

. Action by soaple: founded upon the spoliation or other

a eee of public property (§§ 1237-
1244)...

8. Habeas, coapue and certiorari to inquire into cause of

detention (§§ 1245-1297).
Certiorari. proceeding (§§ 1298-1327).

Prohibition proceeding (§§ 1356-1370).

Proceeding for appointment of committee of incom-
petent; powers and duties of committee (SS 1371-
1399). -

Proceeding for disposition of a Sais of infant
or incompetent (§§ 1400-1424).

Arbitration (§§ 1425-1446).

4

Costs; allowances and awarding; Aenality for (§§
1447-1480).

Costs; amount of; ‘additional ae disburse-
stent ti (§§ 1481-1498). ie y

87. Costs; security for (§§ 1499- -1508).

88.
» 89.

Costs; taxation (§§ 1509-1515). io
Fees ($8 1516-1549). a

SAVING CLAUSES; REPEALS; EFFECT

90.

Saving clauses; ae when to feke effect ( 3S 1550-

os) 1560).

1 api
3 7 a ad woke uh I i 4
Crvit Practice Acr 67

ARTICLE 1
SHORT TITLE; CONSTRUCTION; DEFINITIONS

Section 1. Short title and application.

. Act to be liberally construed.

Rule of strict construction not appheable.

. “Action” defined.

. “Special proceeding” defined.

. “Civil action ” defined.

. General definitions and rules of construction,
. Only one form of civil action.

. Civil and criminal prosecutions not merged.

OHAAAF OD

Section 1. Short title and application. This act shall be
known as the civil practice act, and, except as otherwise expressly
provided, shall apply to the civil practice in all the courts of
record of the state.

[Code § 3344, omitted as covered.]

§ 2. Act to be liberally construed. This act shall be liberally
construed.
[Board’s Civil Practice Act, § 1, pt.]

’ § 3. Rule of strict construction not applicable. The rule of
the common law that a statute in derogation of the common
law is strictly construed does not apply to this act.

[Code § 3345 without change. The Board included the section ‘n proposed
Civil Practice Act, § 1.]

§ 4. “Action” defined. Actions are of two kinds, civil and
criminal. The word “ action,” [[as used in the New Revision of
the Statutes,J when applied to judicial proceedings, signifies an
ordinary prosecution in a court of justice by a party against
another party for the enforcement or protection of a right, the
redress or prevention of a wrong or the punishment of a public
offence.

[Code §§ 3333, 3335, without change of substance. Included by Board in
General Construction Law, § 119.]

§ 5. “Special proceeding” defined. Every other prosecution
by a party for either of the purposes specified in the last section
ig a special proceeding.

[Code § 3334, without change.]
68 Revort or Jot Lratstative ComMitTEr

§ 6. “Civil action” defined. The term “ civil action”? means
any action except an action prosecuted in the name of the people
of the state as plaintiffs against a party charged with crime.

[See Code §§ 3336, 3337, in connection with Code of Criminal Procedure,
§ 6.]

§ 7. General definitions and rules of construction. In con-
struing this act, the following rules must be observed, except
where a contrary intent is expressly declared in the provision to
be construed or plainly apparent from the context thereof:

[4]1. The word “clerk” signifies the clerk of the court
wherein the action or special proceeding is brought, or wherein or
by whose authority the act is to be done, which is referred to in
the provision in which it is used. If the action or special pro-
ceeding is brought, or the act is to be done, in or by the authority
of the supreme court, it signifies the clerk of the county wherein
the action or special proceeding is triable or the act is to be done.

[5]2. The word “report” when used in connection with ‘a
trial or other inquiry or a judgment, means a referee’s report;
and the word “decision,” when used in the same connection,
means the decision of the court upon a hearing, or the trial of an
issue, before the court, without a jury.

[11]8. The word “ affidavit” includes a verified pleading in
an action or a verified petition or answer in a special proceeding.

[12]4. A warrant of attachment against property is said to be’
“annulled” when the action in which it was granted abates or
is discontinued; or a final judgment rendered therein in favor of
the plaintiff is fully paid; or a final judgment is rendered therein
in favor of the defendant. But in the case last specified a stay
of proceedings suspends the effect of the annulment, and the re-
versal or vacating of the judgment revives the warrant.

[13]5. The term “ judgment creditor” signifies the person
who is entitled to collect, or otherwise enforce, in his own right,
a judgment for a sum of money or directing the payment of a sum
of money.

[14]6. A “judgment creditor’s action” is an action brought
[as prescribed in article first of title fourth of chapter fifteenth of
this act, or any other action, brought] by a judgment creditor to
aid the collection of a judgment for a sum of morey or directing
the payment of a sum of money.

[18]7. A “domestic corporation ” is a corporation created by
or under the laws of the state, or located in the state, and created
Civi, Practice Act 69

by or under the laws of the United States, or by or pursuant to
the laws in force in the colony of New York before the [19]
nineteenth day of April in the year [1775] seventeen hundred
and seventy-five. Every other corporation is a ‘‘foreign cor-
poration.”

[20]s. The word “action” refers to civil action; the word
“judgment,” to a judgment in such an action; the term “ special
proceeding,” to a civil special proceeding; the word “ order,” to
an order made in such an action or special proceeding; the words
“an action of ejectment,” to an action to recover the immediate
possession of real property.

9. The word “ law,” referring to provisions containing or relat-
ing to the procedure in any matter, when used in applying, exclud-
‘ing the application of or saving any such provision, signifies both
statute and rule.

[Code § 3343, subs. 4, 5, 11, 12, 13, 14, 18, 20, without change of substance.

The remaining subdivisions, not heretofore repealed, are to be included in
General Construction Law. Subdivision 9 is new.]

: § 8. Only one form of civil action. There is only one form
of civil action. The distinction between actions at law and suits
in equity, and the forms of those actions and suits, have been
abolished.

» [Code § 3339, without change.]

§ 9. Civil and criminal prosecutions not merged. Where
the violation of a right admits of a civil and also of a criminal
prosecution, the one is not merged in the other.

[Code § 1899, without change. Also proposed as a section of Code of Crimi-
nal Procedure. The Board included the section in Civil Rights Law, § 18a.]

ARTICLE 2

LIMITATIONS OF TIME

GENERAL PROVISIONS

Section 10. Application of article.
11. Mode of computing periods of limitation.
12. Limitation in case of death without the state.
13. Limitation in action arising outside of the state.
14. Limitation in action by principal for misconduct of
deputy or agent.
15. Commencement of action where demand necessary.
70. Rerorr or Jomwr Lueisnative ComMItTrEr

Section 16.
TR,

18.

19.

20.

21.
22.
23.

24,
25.
26.

aN.
28.
29.
30.

When action deemed to be commenced.
Attempt to commence action in court of record.

Attempt to commence action in court not of record.

Effect of defendant’s absence from state or residence
under false name.

Effect of death of claimant before expiration of
limitation.

Effect of death of person liable.

Effect of pending action involving decedent’s estate.

Effect of reversal of judgment or termination of
action.

Effect of stay of commencement. of action. +

Effect of stay or revocation of arbitration.

Effect of discontinuance of action on defense or
counterclaim.

Effect of war on right of alien.

Disability must exist when right accrues.

Tf several disabilities no limitation until all removed.

How objection taken, under this article.

ACTIONS FOR RECOVERY OF REAL PROPERTY

31.
382.
33.
34.
35.
36.
387.

38.

41.
42.

43.

When people will not sue.:

Action by grantee from the state.

Action of ejectment after annulment of letters patent.

General limitations; seizin within twenty years.

Presumption of possession from legal title.

Action after. entry.

Adverse possession under written instrument or
judgment.

Essentials of adverse possession under written instru-
ment or judgment.

. Adverse possession under claim of title not written.
. Essentials of adverse’ possession under claim of title

not written.

Adverse possession ; how affected by relation of land-
lord and tenant. |

Right of person in possession not affected by descent
cast.

Certain disabilities excluded from time to commence
action,
© Civin: Practice Act eel

ACTIONS OTHER THAN FOR REROVERY OF REAL
PROPERTY

) Section 44. When satisfaction of judgment presumed. Po
45. Avoidance of apparent payment ‘under execution.
;,' 46. Action to redeem from a mortgage.
- : 47. Actions to be commenced within twenty years.
48. Actions. to be commenced within six years.
sss 49. Actions. to be commenced ‘within three years. Bs
50. Actions to be commenced within two yéars.” “'
51. Actions to be commenced wwithin . one, year.
aes Action, for penalty given ‘to common informer.
58. Limitation when none specially prescribed.
54, Certain actions by people subject to same limitations.
55. Action against non-resident.
_ 56. Accrual of action on account.
57, Action accruing after death and before grant of
~ letters.
58. Action on bill or note issued as money.
59. Acknowledgment or new promise must be in writing.
-+ 1,60. Certain disabilities excluded: from. time to commence
action.
61. Defense or counterclaim.

GENERAL PROVISIONS

..,§ 10. Application of article. The provisions of this Chew
ter] article apply and constitute the only rules of limitation
applicable to a civil action or special proceeding, except in one of
the following cases:

“1, A ease where a different limitation is specially prescribed
by law or a shorter limitation is prescribed by the written con-
“tract of the parties.

‘[2.:A cause of action or a defense which accrued ‘before the
first day of July, 1848. The statutes then in force govern, with
“respect to such cause of action or defense.

‘8. A’ case, not included in the last subdivision, in which a per-
soit is entitled, when this act takes effect, to commence an action,
or to institute a special proceeding, or to inks § any proceeding there-
‘in, or to pursue a remedy upon a judgment, where he commences,
institutes, or otherwise resorts to the same, before the expiration
‘of two years. after this act takes, effect; in either of ,which. cases,
-the: provisions of law applicable thereto, immediately before this
72 Report oF Jornt LeaistaTivE ComMITTEE

act takes effect, continue to be so applicable, notwithstanding the
repeal thereof. ]

[4]2. A case where the time to commence an action has expired
when this article [act] takes effect.

The word “ action” contained in this article [chapter] is to
be construed, when it is necessary so to do, as including a special
proceeding or any proceeding therein or in an action.

[Code § 414. Subds. 3, 4 omitted as temporary. Included by Board in
Civil Rights Law, § 244.]

§ 11. Mode of computing periods of limitation. The periods
of limitation prescribed by this article [chapter], except as
otherwise specially prescribed therein, must be computed from
the time of the accruing of the right to relief by action, special
proceeding, defense or otherwise, as the case requires, to the time
when the claim to that relief is actually interposed by the party
as a plaintiff or a defendant in the particular action or special

proceeding.
[Code § 415, without change. Included by Board in Civil Rights Law, § 21.]

§ 12. Limitation in case of death without the state. If a
person against whom a cause of action exists dies without the
state, the time which elapses between his death and the expira-
tion of eighteen months after the issuing, within the state, of
letters testamentary or letters of administration, is not a part of
the time limited for the commencement of an action therefor
against his executor or administrator.

[Code § 391, without change. Included by Board in Civil Rights Law, § 8.]

§ 13. Limitation in action arising outside of the state.
Where a cause of action arises outside of this state, an action
cannot be brought in a court of this state to enforce [said]
such cause of action after the expiration of the time limited by the
laws of a state or country where the cause of action arose, for
bringing an action upon such [said] cause of action, except where
the cause of action originally accrued in favor of a resident of this
state. [[Nothing in this act contained shall affect any pee ac-
tion or proceeding. J

[Code § 390a. Last sentence omitted as temporary. Included by Board in
Civil Rights Law, § 9.]

§ 14. Limitation in action by principal for misconduct of
deputy or agent. Where an injury results from the act or
Crvit Praoticr Aor 43

omission of a deputy or agent, the time within which an action
to recover damages by reason thereof must be commenced by the
principal against the deputy or agent must be computed from the
time when a judgment against the principal for the act or umis-
sion is first recovered by the aggrieved person; and a subsequent
reversal or setting aside of the judgment does not extend the time.

{Code § 407, without change. Included by Board in Civil Rights Law,
§ 223.)

§ 15. Commencement of action where demand necessary.
Where a right exists, but a demand is necessary to entitle
a person to maintain an action, the time within which the action
must be commenced must be computed from the time when the
right to make the demand is complete except in one of the follow-
ing cases:

1. Where the right grows out of the receipt or detention of money
or property by an agent, trustee, attorney, or other person acting
in a fiduciary capacity, the time must be computed from the time
when the person having the. right to make the demand has actual
knowledge of the facts upon which that right depends.

2. Where there was a deposit of money not to be repaid at a
fixed time but only upon a special demand, or a delivery of per-
sonal property not to be returned specifically or in kind at a fixed
time or upon a fixed contingency, the time must be computed from
the demand.

[Code § 410, without change. Included by Board in Civil Rights Law, § 18.)

§ 16. When action deemed to be commenced. An action is
commenced against a defendant, within the meaning of any pro-
vision of this act which limits the time for commencing an action,
when the summons is served on him or on a co-defendant who is
a joint contractor or otherwise united in interest with him.

[Code § 398, without change. Included by Board in Civil Rights Law,
§ 12, but applied only to limitations prescribed by Civil Rights Law.]

§ 17. Attempt to commence action in court of record. An
attempt to commence an action in a court of record is equiva-
lent to the commencement thereof against each defendant, within
the meaning of each provision of this act which limits the
time for commencing an action, when the summons is delivered,
with the intent that it shall be actually served, to the sheriff, or,
where the sheriff is a party, to a coroner of the county, in which
14 Reporr of, Jowt Lzaistativr Committe
that defendant, or one of, ,two or more co-defendants who: are
joint ‘contractors or, otherwise united in interest with him, resides
or last. resided ; or, if the defendant is a corporation, toa like officer
of the. county in which it, ds established by law or wherein its
general business is.or was last transacted or wherein it keeps or
Jast: kept an office for the transaction. of business. But in‘order to
entitle a. plaintiff to the benefit of this section, the delivery of: the
summons to an officer must be followed within sixty days after the .
expiration of the time limited for the actual commencement of the
action by personal: service of the' summons or ‘by service thereof
without the state; upon the defendant sought to be charged, or by
‘the first: publication of the summons, as against that defendant,
pursuant to an order for service upon him in that manner or by
substituted service of the summons on such defendant Die the

state pursuant to an order. ett gees

[Code § 399, broadened to include service without the state under ‘an .order
for publication and substituted, service within the state. Included by Board
in Civil, Rights Law, § 13, but limited in application to that “act.”]

§ 18. | Attempt to commence action in court not of record.
The last section excluding the provision requiring a publica-
tion or service of the summons “within sixty days applies to an
attempt to commence an action in a court not of record, where the
‘summons is ‘delivered to an officer authorized to serve the same,
within the. city’ or town, wherein the person ¢esides, or the cor-
poration is located, as specified i in that section ; ; provided that actual
‘service thereof is made with due diligence.

[Code § 400, without change. Included by Board in Civil Rights Law, § 14.3

§ 19. Effect of defendant’s absence from state or residence
under false name. If, when: the cause of action accrues against
a person, he is- without the state, the action may be com-
menced, within the'time limited: therefor, after his return into the
state.’ If, after a cause of action has accrued against a person, he
departs Foil the state and remains continuously absent therefrom
for the space of one year or more, or if, without, the knowledge of
‘the _ person entitled to maintain the action, he resides within the
state under a false, name, the time of his absence or of such resi-
dence. within the state under such false name is not a part of, the
time, limited for the commencement of the action. But this sec-
tion, does not apply while a designation made in pursuance of law
of a resident of the state on whom a summons may be served for
Cryin Practice Act 75

another person or corporation [Las prescribed in section four hun-
dred and thirty, or in subdivision second of section four hundred
and thirty-two, of this act, remains in force.

[Code § 401, without change of substance. Included by Board in Civil
_ Rights Law, §§ 4-6.] ‘

§ 20. Effect of death of claimant before expiration of limi-
tation. If a person entitled to maintain an action dies before
the expiration of the time limited for the commencement thereof,
and the cause of action survives, an action may be commenced
by his representative after the expiration of that time and within
one year after his death.

[Code § 402, without change. Included by Board in Civil Rights Law, § 7.]

§ 21. Effect of death of person liable. The term of eighteen
months after the death within this state of a person against
whom a cause of action exists, or of a person who shall
have died within sixty days after an attempt shall have been made
to commence an action against him pursuant to the provisions of
[section three hundred and ninety-nine of] this article [act],
is not a part of the time limited for the commencement of an action
against his executor or administrator. If letters testamentary or
letters of administration upon his estate are not issued within this
state at least six months before the expiration of the time to bring
the action, as extended by the foregoing provision of this section,
the term of one year after such letters are issued is not a part of
the time limited for the commencement of such an action.

[Code § 403, first two sentences, without change of substance. Included by
Board in Decedent Estate Law, § 129f.]

§ 22. Effect of pending action involving decedent’s estate.
The time during which an action is pending in a court of
record between a person or persons and an executor or admin-
istrator, wherein the person or persons claim to recover from the
executor or administrator any money or other property claimed by
said executor or administrator to belong to the estate of the de
cedent or [is] embraced in the inventory of the assets of said de-
cedent’s estate, is not a part of the time limited for the commence-
ment of an action against an executor or administrator, for a claim
against the estate of the decedent until the final determination of
the action brought to recover said or other property claimed by said
executor or administrator to belong to said decedent’s estate:
76 Report or Jornt LaqisiaTivE COMMITTEE

1. Where the claim against the estate of the decedent is liqui-
dated by the recovery of a judgment thereon against an executor or
administrator in an action in a court of record [or under section
twenty-seven hundred and eighteen of this code,] after trial on
the merits or by judicial settlement in surrogate’s court.

2. Where a legatee brings an action or institutes a proceeding
against an executor or administrator with the will annexed to en-
force the payment of a legacy.

[Code § 403, last part, without change of substance. Included by Board in
Decedent Estate Law, § 124b.]

§ 23. Effect of reversal of judgment or termination of
action. If an action is commenced within the time limited there-
for, and a judgment therein is reversed on appeal without
awarding a new trial, or the action is terminated in any other man-
ner than by a voluntary discontinuance, a dismissal of the com-
plaint for neglect to prosecute the action, or a final judgment upon
the merits, the plaintiff, or, if he dies and the cause of action
survives, his representative, may commence a new action for the
same cause after the expiration of the time’so limited and within
one year after such a reversal or termination.

[Code § 405, without change. Included by Board in Civil Rights Law, § 10.]

§ 24. Effect of stay of commencement of action. Where
the commencement of an action has been stayed by injunction
or other order of a court or judge or by statutory prohibition, the
time of the continuance of the stay is not a part of the time
limited for the commencement of the action.

' [Code § 406, without change. Included by Board in Civil Rights Law, § 11.]

§ 25. Effect of stay or revocation of arbitration. Where
the persons who might be adverse parties in an action have
entered into a written agreement to submit to arbitration or to
refer the cause of action or a controversy in which it might be
available, or have entered into a written submission thereof to
arbitrators, and, before an award or other determination there-
upon, the agreement or submission is revoked, so as to render it
ineffectual, by the death of either party thereto or by the act of
the person against whom the action might have been brought, or
the execution thereof, or the remedy upon an award or other de
termination thereunder, is stayed by injunction or other order
procured by him from a competent court or judge, the time which
Civit Pracrice Acr GT

has elapsed between the entering into the written submission or
agreement and the revocation thereof or the expiration of the stay
is not a part of the time, limited for the commencement of the
action.

[Code § 411, without change. Included by Board in Civil Rights Law, § 35.]

§ 26. Effect of discontinuance of action on defense or coun-
terclaim. Where a defendant in an action has interposed an
answer, in support of which he would be entitled to rely, at the
‘ trial, upon a defense or counterclaim then existing in his favor,
the remedy upon which at the time of the commencement of
the action, was not barred by the provisions of this article
[chapter], and the complaint is dismissed, or the action is dis-
continued or abates in consequence of the plaintiff’s death, the
time which intervened between the commencement and the ter-
mination of the action is not a part of the time limited for the
commencement of an action by the defendant to recover for the
cause of action so interposed as a defense, or to interpose the same
defense in another action brought by the same plaintiff or a per-
son deriving title from or under him.

[Code § 412, without change. Included hy Board in Civil Rights Law, § 20.}

§ 27. Effect of war on right of alien. Where a person is dis-
abled to sue in the courts of the state by reason of either party
being an alien subject or citizen of a country at war with
the United States, the time of the continuance of the disability is
not a part of the time limited for the commencement of the action.

[Code § 404, without change. Included by Board in Civil Rights Law, § 32,
with erroneous title.]

§ 28. Disability must exist when right accrues. A person
cannot avail himself of a disability unless it existed when his

right of action or of entry accrued.
[Code § 408, without change. Included by Board in Civil Rights Law, § 16.]

§ 29. If several disabilities, no limitation until all removed.
Where two or more disabilities co-exist when the right of action
or of entry accrues, the limitation does not attach until all are

removed.
[Code § 409, without change. Included by Board in Civil Rights Law, § 17.]

§ 30. How objection taken, under this article. The objec-
tion that the action was not commenced within the time limited
- ,
78 ReEporr or Jotwr Luaisparive ComMmirrre

can be taken only by answer. The corresponding objection to a
defense or counterclaim can be taken only by reply; except where
a reply is not required in order to enable the plaintiff to raise an
issue of fact upon an allegation contained in the answer.

[Code § 413, without change. Included by Board in Rule 147 under “ Plead-
ing.”]

ACTIONS FOR RECOVERY OF REAL PROPERTY

§ 31. When the people will not sue. The people of the state _
will not sue a person for or with respect to real property, or
the issues or profits thereof, by reason of the right or title of the
people to the same, unless either

1. The cause of action accrued within forty years before the ac-
tion is commenced; or

2. The people, or those from whom they claim, have received
the rents and profits of the real property or of some part thereof,
within the same period of time.

[Code § 362, without change. Included by Board in Real Property Law,
§ 746.] : ,

§ 32. Action by grantee from the state. An action shall not
be brought for or with respect to real property by a person
claiming by virtue of letters patent or a grant from the people
of the state, unless it might have been maintained by the people,
as prescribed i in this article [title], if the patent or grant had not
been issued or made. .

[Code § 363, without change. Included by Board in Real Property Law,
§ 742.]

§ 33. Action of ejectment after annulment of letters pat-
ent. Where letters patent or a grant of real property, issued or
made by the people of the state, are declared void by the deter-
mination of a competent court rendered upon an allegation of a
fraudulent suggestion or concealment, or of a forfeiture, or mis-
take, or ignorance of a material fact, or wrongful detaining, or de
fective title; an action of ejectment to recover the premises in
question may be commenced either by the people or by a sub-
sequent patentee or grantee of the same premises, his heirs or
assigns, within twenty years after the determination is made, but
not after that period.

[Code § 364, witheut change. ee by Board in Real Property Law,
§ 458.]
+. Orvin Practice Act 7 79

» § 34. General limitation; seizin within twenty years. An
action to recover real property or the possession thereof cannot be
maintained by a party other than the people, unless the plaintiff,
his : ancestor, ‘predecessor or grantor, was seized or possessed of
the premises in question within twenty years before the com-
mencement of the action. ae

A defense or counterclaim founded upon the title 46, taal prop-
erty, or to.rents or services out of the same, is not effectual unless
the ‘person making it, or under whose title it is made, or his
ancestor, predecessor or grantor, was seized or possessed of the
premises in question within twenty years before the committing
of the act with respect to which it is made.

[Code §§ 365, “366, without change. Tneluded by Board . in Real Property
Law, gs 463, 747.)

§ 35. Pesananion of possession from legal title. In an
action: to recover real property or the possession thereof, the
person' who establishes a legal title to the premises is presumed
to have been possessed thereof within the time required by law;
and the occupation of the premises by another person’ is deemed
to have been under and in subordination to the legal title unless
the’ premises have been held and possessed’ adversely to the legal
title for twenty years before the commencement of the action.

a [Code § 368, without, change. Included by Board in Evidence Law, § 104.]

. § 36. Action after entry. An entry upon real property is
not sufficient or valid as a claim unless an action is commenced
thereupon. within one year after the making thereof and within
twenty years after the time when the right to make it descended
or accrued. . Aer P

[Code § 367, waghout change. Included by Board in Real Property. Law,
§ 748.]

§ 37. Adverse possession under written, ‘instrument or
judgment. Where the occupant or those under. whom he claims
entered: into'.the. possession of the. premises under claim of
title, exclusive of any other right, founding the claim upon a writ-
ten instrument, as being a conveyance of the premises in question,
or upon the decreé or judgment of a competent court, and there
has been a continued occupation and possession of the premises
ineluded:in the instrument, decree or judgment, or of some part
thereof, for twenty years, under the same claim, the premises so
80 Report or Joint LeaisLaATIVE ComMMITTEE

included are deemed to have been held adversely ; except that where
they consist of a tract divided into lots the possession of one lot
is not deemed a possession of any other lot.

[Code § 369, without change. Included by Board in Real Property Law,
§ 20.)

§ 38. Essentials of adverse possession under written
instrument or judgment. For the purpose of constituting an
adverse possession, by a person claiming a title founded. upon a
written instrument or a judgment or decree, land is deemed to
have been possessed and occupied in either of the following cases:

1, Where it has been usually cultivated or improved.

2. Where it has been protected by a substantial inclosure.

3. Where, although not inclosed, it has been used for the sup-
ply of fuel or of fencing timber, either for the purposes of hus-
bandry or for the ordinary use of the occupant.

Where a known farm or a single lot has been partly improved,
the portion of the farm or lot that has been left not cleared or not
inclosed, according to the usual course and custom of the adjoin-
ing country, is deemed to have been occupied for the same length
of time as the part improved and cultivated.

' [Code § 370, without change. Included by Board in Real Property Law,
§ 21.]

§ 39. Adverse possession under claim of title not written.
Where there.has been an actual continued occupation of premises
under a claim of title, exclusive of any other right, but not founded
upon a written instrument or a judgment or decree, the premises
so actually occupied, and no others, are deemed to have been held
adversely.

[Code § 371, without change. Included by Board in Real Property Law,
§ 22.]

§ 40. Essentials of adverse possession under claim of title
not written. For the purpose of constituting an adverse posses-
sion by a person claiming title not founded upon a written
instrument or a judgment or decree, land is deemed to have been
possessed and occupied in either of the following cases, and no
others:

1. Where it has been protected by a substantia: inclosure.

2. Where it has been usually cultivated or improved.

[Code § 372, without change. Included by Board in Real Property Law,
§ 23.)
Crvit Practice Act 81

§ 41. Adverse possession, how affected by relation of land-
lord and tenant. Where the relation of landlord and tenant
has existed between any persons the possession of the tenant is
deemed the possession of the landlord until the expiration of
twenty years after the termination of the tenancy; or, where there
has been no written lease, until the expiration of twenty years
after the last payment of rent; notwithstanding that the tenant
has acquired another title or has claimed to hold adversely to his
landlord. But this presumption shall not be made after the periods
prescribed in this section.

[Code § 373, without change. Included by Board in Real Property Law,
§ 24.]

§ 42. Right of person in possession not affected by descent
cast. The right of a person to the possession of real property is
not impaired or affected by a descent being cast in consequence
of the death of a person in possession of the property.

[Code § 374, without change. Included by Board in Real Property Law,
§ 25.]

§ 43. Certain disabilities excluded from time to commence
action. If a person who might maintain an action to recover
real property or the possession thereof, or make an entry, or inter-
pose a defense or counterclaim founded on the title to real prop-
erty or to rents or services out of the same, is when his title first
descends or his cause of action or right of entry first accrues,
either :

1. Within the age of twenty-one years; or

-2. Insane; or

3. Imprisoned on a criminal charge, or in execution upon con-
viction of a criminal offense, for a term less than for life;
the time of such a disability is not a part of the time limited
in this article [title,] for commencing the action or making the
entry or interposing the defense or counterclaim ; except that the
time so limited cannot be extended more than ten years after the
disability ceases or after the death of the person so disabled. |

[Code § 375, without change. Included by Board in Real Property Law,
§ .745.]
82 Rerorr or Joint Legistarive CoMMITTEE

ACTIONS OTHER THAN FOR RECOVERY OF REAL
PROPERTY

§ 44, “When satisfaction of judgment pee: ae final
jadgment or decree for a sum of money or directing the pay-
ment of a sum of money, [heretofore rendered in a surrogate’s
court of the state, or heretofore or hereafter] rendered in a court
of record within the United States or elsewhere, or a judgment
of @ court of. this state not of record [hereafter] docketed in a
county clerk’s office upon a transcript filed therein pursuant to law
[pursuant to the provisions of section thirty hundred and seven-
teen of this act], is presumed to be paid and satisfied after the
expiration of twenty years from the time when the party recover-
ing it was first entitled to a mandate to enforce it. This presump-
tion is conclusive, except as against a person, who within twenty
years from ‘that time makes a payment or acknowledges an. indebt-
edness of some part of the amount recovered by the judgment or
decree, or his heir or personal representative, or a person whom
he otherwise represents. ‘Such an acknowledgment must be in
writing and signed by the person to be charged thereby. A person
may avail himself of the presumption created by this section [the
last section but one] under an allegation that the action was not
commenced, or that the proceeding was not taken, within the time
therein limited. :

[Code 8§ 376, 378, without change of substance. ‘Section 376 included by
Board in Debtor and Creditor Law, §§ lf and lg and § 3878, in Board Rule
158.] ” :

§ 45. Avoidance of apparent payment under execution. If
the proof of payment under the last section consists of the return
of an execution partly satisfied, the adverse party may show in
full avoidance of the effect thereof that the alleged partial satis-
faction did not proceed from a payment made, or a sale of
property claimed, by him or by a person whom he represents.

{Code § 377, without t change. Included by Board in Debtor and Creditor
Law, § 1h.] ' ‘a 3

§ 46. Action to redeem from a mortgage. An action to
redeem real property from a mortgage with or without an account
of rents and profits may be maintained by the mortgagor or those
claiming under him against the mortgagee in possession, or’ those
claiming under him, unless he or they have continuously main-
tained an adverse possession of the mortgaged premises for twenty
Crvint’ Pracrice Acr 83

years after the breach of a condition of the mortgage, or the
non-fulfillment of a covenant therein contained.

[Code § 379, without’ change. Included by Board in Real Property Law,
§ 3.] :

§ 47. Actions to be commenced within twenty years.
[Within twenty years: | a .

The following actions must be commenced within the following
periods, after the cause of action has accrued :]

An action upon a sealed instrument must be commened within
twenty years after the cause of action has accrued. -

[But] Where the action is brought for breach of a covenant of
seizin or against incumbrances, the cause of action [is], for the
purposes of this section only, is deemed to have accrued upon an
eviction, and not before.

[Code §§ 380, 381. Included by Board in Civil Rights Law, § 233.]

§ 48. Actions to be commenced within six years. (Within
six years:]

The following actions must be commenced within [the following
periods, ] six years after the cause of action has accrued:

1. An action upon a contract obligation or liability express or
implied, except a judgment or sealed instrument.

2. An action to recover upon a liability created by statute, ex-
cept a penalty or forfeiture.

3. An action to recover damages for an injury to property, or
a personal injury, except in a case where a different period is
expressly prescribed in this article [chapter].

4, An action to recover a chattel.

5, An action to procure a judgment, other than for a sum of
money, on the ground of fraud, in a case which, on the thirty-
first day of December, eighteen hundred and forty SIX, Was cogni-
zable by the court of chancery. The cause of action in: such a case
is not deemed to have accrued until the discovery by the plaintiff
or the person under whom he claims, of the facts constituting the
fraud.

6, An action to establish a will, Where the will has been lost,
concealed or destroyed, the cause of. action is not deemed to
have accrued until the discovery by the plaintiff or the person
under whom he claims of the facts upon which its validity depends.

7. An action upon’ a ‘Fudement [or decree] rendered in a
court not of record, except where such judgment shall have been
84 Rerorr or Joint Legisuative ComMitrer

docketed in a county clerk’s office of this state upon a transcript
filed therein pursuant to law [a transcript shall be filed, pur-
suant to section thirty hundred and seventeen of this act, and,
also, except a decree heretofore rendered in a surrogate’s court of
the state]. The cause of action in such a case is deemed to have
accrued when final judgment was rendered.

[Code §§ 380, 382, without change of substance. Included by Board in Civil
Rights Law, §§ 103, 219, 220, 235, 121, 122; Personal Property Law, § 79h;
Decedent Estate Law, § 125c; Debtor and Creditor Law, § 14d.]

§ 49. Actions to be commenced within three years. [Within
three years:]

-'The following actions must be commenced within [the following
periods, ] three years after the cause of action has accrued:

1. An action against a sheriff, coroner, constable or other officer
for the non-payment of money collected upon an execution.

2. An action against a constable upon any other liability in-
curred by him by doing an act in his official capacity or by the
omission of an official duty ; except an escape.

3. An action upon a statute for a penalty or forfeiture where
the action is given to the person aggrieved or to that person and
the people of the state, except where the statute imposing it pre-
scribes a different limitation.

4, An action against a director or stockholder of a moneyed
corporation, or banking association, to recover a penalty or for-
feiture imposed, or to enforce a liability created by the common
law or by statute.

5[4]. An action against an executor, administrator or receiver,
or against the trustee of an insolvent debtor appointed as pre-
scribed by law in a special proceeding [instituted in a court or
before a judge], where the action is brought to recover a chattel,
or damages for taking, detaining or injuring personal property,
by the defendant or the person whom he represents.

6[5]. An action to recover damages for a personal injury re-
sulting from negligence.

[Code §§ 380, 383, without change. Included by Board in County Law, § 81;
Town Law, § 118a; Civil Rights Law, §§ 208, 220; Personal Property Law,

§ 79h. Subd. 4 is § 394 without change of substance (included by Board in
General Corporation Law, § 162).]

§ 50. Actions to be commenced within two years. [Within
two years:]
Crvit Practice Act 85

The following actions must be commenced within [the following
periods, ] two years after the cause of action has accrued:

1. An action to recover damages for libel, slander, assault,
battery, seduction, criminal conversation, false imprisonment,
malicious prosecution or malpractice.

2. An action upon a statute for a forfeiture or penalty to the
people of the state.

[Code §§ 380, 384, without change. Included by Board in Civil Rights Law,
§§ 221, 213.]

§ 51. Actions to be commenced within one year. [Within
one year:]

The following actions must be commenced within [the following
periods, ] one year after the cause of action has accrued:

1. An action against a sheriff or coroner upon a liability in-
curred by him by doing an act in his official capacity or by the
omission of an official duty; except the nonpayment of money
collected upon an execution.

2. An action against any other officer for the escape of a
prisoner arrested or imprisoned by virtue of a civil mandate.

[Code §§ 380, 385, without change. Included by Board in County Law,
§§ 186a, 199h.]

§ 52. Action for penalty given to common informer. An
action upon a statute for a penalty or forfeiture given wholly
or partly to any person who will prosecute for the same must
be commenced within one year after the commission of the offence,
and if the action is not commenced within the year by a private
person, it may be commenced within two years thereafter in
behalf of the people of the state by the attorney-general or the
district-attorney of the county where the offence was committed.

[Code § 387, without change. Included by Board in Civil Rights Law, §§
209, 212.]

§ 53. Limitation where none specially prescribed. An
action, the limitation of which is not specifically prescribed in
this article [or the last title], must be commenced within ten
years after the cause of action accrues.

[Code § 388, without change. Included by Board in Civil Rights Law,
§ 22.)

§ 54. Certain actions by the people subject to same limita-
tions. The limitations prescribed in this article for actions
86 Report or Jorn? Leoistative: CoMMITTEE

other than for the recovery of real property [title,] apply
alike to actions brought in the name of, the people of the state, or
for their benetit, and to actions by private persons.

[Code § 389 without, change. Included by Buard in Ciyil Rights Law, § 218.]

§ 55. Action against nonresident. “Where a cause of action,
which does not involve the title to or possession of real prop-
erty within the state, accrues against a person who is not then
a’resident of ’the state, an action cannot be brought thereon in
a court of the state against him or his personal representative
after the expiration of the time limited by the laws otf his resi-
dence for bringing a like action, provided that if the limitation
of, the. time fixed, by the laws, of his residence for bringing such
action be less than the time fixed by.,the laws of this state for a
like action, the limitation tixed by the laws of this state shall
apply. [This section shall not apply, to a case in which a person
is entitled, when this section as amended takes effect, to commence
such action, where he commences the.same before the expiration
of six onthe after this section as amended. takes effect; in which
ease the provisions: of law. applicable thereto immediately before
this section as amended takes effect shall continue to be so appli-
cable, notwithstanding the repeal thereof.]

[Code § 390. Last sentence coe, as reas Included by Board in
‘Civil Rights Law, § 202.J°°° () "OCF s

§ 56. ‘Accrual of action on account. In an action brought to
recover a balance due upon a mutual, open and current account,
where there have been reciprocal. dentands between the parties,
the cause of action is deemed to have accrued from the time of
the last item proved i in the account on. either side.

[Code § 386, without change. Included by Board i in Debtor and Creditor
Law, § 1a.J

§ 57. Action accruing aFiee death and before grant of let=
ters. . For the purpose of computing the time within which an
action ‘must be commenced in a court of the state by an executor
or administrator, to recover personal property taken. after the
death of a testator or intestate and before the issuing of letters
testamentary or letters of administration, or to recover dam-
ages for taking, detaining or injuring personal property within
the same period, the letters are deemed to have been issued
within six years after the death of the testator or intestate. But
where an action is barred by this section, any of the next of kin,
Crvit, Practicr Act 87

lJegatees. or creditors, who at the time of the transaction upon
‘which it might have been founded was within the age of twenty-
one years, or insane, or imprisoned on a criminal charge, may
within five years after the cessation of such a disability main-
tain an action to recover damages by reason thereof; in which
he may recover such sum or the value of such property as he
would have received upon the final distribution of the estate if
an action had been seasonably commenced by the executor or
administrator.

[Code § 392, without change. Included by Board in Decedent Estate Law,
§§ 124, 1240.) |

§ 58. Action on bill or note issued as money. This article
[chapter] does not affect an action to enforce the payment of a
bill, note or other evidence of debt issued Eby a moneyed corpora-
tion, or issued] « or put in circulation as money.

[Code § 393, amended to express the apparent meaning. Included by Board
without change in General Corporation Law, § 163.]

§ 59. Acknowledgment or new promise must be in writing.
An, _acknowledgment or promise contained in a writing signed
by the party to be charged thereby is the only competent evi-
dence of a new or continuing contract whereby to take a case
out of the operation of the provisions of this article relating to
the limitations of _ time within which an action must be brought
other than for the recovery of real property [this title]. But
this section does not alter the effect of a payment of principal or
interest.

[Code § 395, without change of substance. Included by Board in Evidence
Law, § 115.] ;

§ 60. Certain disabilities excluded from time to commence
action. If a person entitled to maintain an action other than
for the recovery of real property [specified in this title], except
for a penalty or forfeiture, or against a sheriff or other officer
for an escape, is at _the time when the cause of action accrues,
either :

1. Within the age of twenty-one years; or

2. Insane; or

- 8. Imprisoned on a criminal charge, or in execution upon con-
viction of a criminal offense, for a term less than for life;
the time of such a disability is not a part of the time limited
in this article [title] for commencing the action; except that the
88 Report oF Joint LEGISLATIVE CoMMITTEE

time so limited cannot be extended more than five years by any
such disability, except infancy; or in any case more than one
year after the disability ceases.

[Code § 396, without change of substance. Included by Board in Civil
Rights Law, § 15, and made of general application.]

§ 61. Defense or counterclaim. A cause of action other than
for the recovery of real property, upon which an action cannot
be maintained as prescribed in this article [title], cannot be
effectually interposed as a defense or counterclaim.

[Code § 397, without change of substance. Included by Board in Civil
Rights Law, § 19.]

ARTICLE 3
COURTS, JUDGES AND REFEREES

Section 62. Courts; general jurisdiction and power.

63. General powers of courts of record.

64. General jurisdiction of supreme court.

65. Powers of justice of supreme court.

66. Grant by appellate division of orders refused by
court or justice.

67. Jurisdiction of county court.

68. When domestic corporation or joint stock company
deemed resident for determining jurisdiction of
county court.

69. When jurisdiction of county court co-extensive with
supreme court.

‘70. Sessions of county court.

71. Application of provisions to county court.

72. Service of execution or process of county court in
any county.

73. Incapacity of county judge or special county judge.

74. Power of county judge in matters before county
court.

75 Power of county judge in special proceedings.

76. Power of county judge when holding court in another
county.

77. Power of county judge to perform duties of justice
of supreme court at chambers.

78. Continuance of proceedings before judges of same
court. ,
Crvit Practice Act 89

Section 79, Vacancies or changes in judges; power of judge out
of office.
80. Powers of court exercisable by referees,
81. Removal of referees and other officers and appoint-
ment of successors.

§ 62. Courts; general jurisdiction and powers. The courts
referred to in this act are enumerated in sections two and thiee
of the judiciary law. Each of those courts shall continue to
exercise the jurisdiction and powers now vested in it by law
according to the course and practice of the court, except as other-
wise prescribed [in this act].

[Code §§ 1, 4, without change of substance. The Board included § 4 in
Judiciary Law, § 3a. Code § 220, relating to jurisdiction of appellate divisions
and powers of justices, repealed without re-enactment. The first sentence has
been superseded by the amendment of 1905 to section 2 of article 6 of the

Constitution. The remainder of the section is contained in section 6 of article
2 of the Constitution in identical language.]

§ 63. General powers of courts of record. A court of record
has power:

1. To issue a subpoena requiring the attendance of a person
found in the state to testify in a cause pending in that court;
subject, however, to the limitations prescribed by law with vespest
to the portion of the state in which the process of a local court
of record may be served.

2. To administer an oath to a witness, in the exercise of the
powers and duties of the court.

3. To devise and make new process and forms of proceedings,
necessary to carry into effect the powers and jurisdiction pos-
sessed by it.

[Code § 7. See Board’s proposed Judiciary Law, § 3b, identical. The last
subdivision should be considered in connection with any new provision relating
to the formulation of practice rules.]

§ 64. General jurisdiction of supreme court. The general
jurisdiction in law and equity which the supreme court of the
‘state possesses under the provisions of the constitution includes
all the jurisdiction which was possessed and exercised by the
‘supreme court of the colony of New York at any time, and by
‘the court of chancery in England on the 4th day of J aly, 1776;
with the exceptions, additions and limitations created and imposed
, 90 Report or Joint Leeistative ComMItTEe

by the constitution and laws of the state. Subject to those excep-
tions and limitations the supreme court of the state has all the
powers and authority of each of those courts and exercises the
‘same in like manner.

(Code § 217, without change. Included by Board in Judiciary Law, § 138.]

~§ 65. Powers of justice of supreme court. Any justice of
the supreme court has power to hold a special or trial term of the
supreme court in any county for the whole or any’ portion of the
term, and to act upon any business which regularly comes before
the term in which he is sitting, except where he is personally
disqualified from sitting, in a particular action or special proceed-
ing. Each justice [must], at all reasonable times, when not
engaged in holding court, must Leet such fudicial business
as may be done out of court.

[ode § 235, amended by adding the words “in any county,” in accordance

ath the decisions and § 6 of art, 6 of the constitution. Included by Board
in Judiciary Law, § 139b.]

§ 66. Grant by appellate division of orders refused by
court or justice. [and] The appellate division may grant, any
order or provisional remedy which has been applied for without
notice to the adverse party and refused by the supreme court or
.a justice thereof. .

[Code § 1348, last clause, without ee of substance. Included by Boaré
in Judiciary Law, § 120.] ! :

_ § 67. Jurisdiction of county court. The jurisdiction, of each
county court extends to the following actions and special pro-
ceedings, in addition to the jurisdiction, power and authority
conferred upon a county court in a particular case by special
‘statutory provision :

1. To an action for the partition of real property; for dower;
for the foreclosure, redemption or satisfaction of a mortgage upon
real property; or to procure a judgment requiring a specific per-
formance. of a contract relating to real property; where the real
property to which the action relates is situated within the county;
or to. foreclose a lien upon a chattel in a case specified in. section
two hundred and six of the lien law where the lien does not
‘exceed one thousand dollars in amount and the chattel is found
within the county, te and Ie <n
Crvit Praqrice Act 91

_ 2 To an action in favor of the executor, administrator or
assignee of a judgment creditor, or in a proper case in favor of the
judgment creditor, to recover a judgment for money remaining
aue upon a judgment rendered in the same court.

3. To an action for any;other cause, where the dtondant: is,
or if there are two or more ‘defendants, where all of them are, at
the time of the commencement of the action, residents of the
county, and wherein the complaint demands judgment for a sum
of money only not exceeding two thousand dollars; or to recover
one or more chattels the aggregate value of which does not exceed
one thousand dollars with or wa damages for ‘he taking or
detention thereof. .. oe

4. To the custody of the person ae he care of he property,
concurrently with the supreme court, of a resident of the county,
who is, incompetent to manage his ae -by reason of lunacy,
idiocy or habitual drunkenness, or by reason of imbecility arising
from old age or loss of memory and understanding or other cause;
and .to every special proceeding which the supreme court has
jurisdiction to entertain for the appointment of a committee of
the person or of the property of such an incompetent person or
for the sale or other disposition of the real property. situated
within the county of a person wherever resident who is so ineom-
petent for either of the reasons aforesaid, -or who is an infant;
or for the sale or other disposition of the real property, situated
within the county, of a domestic religious corporation.

[Code § 340, without change. Included by Board in Judiciary Law, § 181,
subs. 1-4.] pik cals baal :

§ 68. When domestic corporation or joint stock company
deemed resident for determining jurisdiction of county
court. For the purpose of determining the jurisdiction of a
county court in either of the cases specified in the last section,
a domestic corporation or joint-stock association whose principal
place of business is established, by or pursuant to a statute or by
its articles of association, or whose principal place of business or
any part of its plant or plants, shops, factories or offices is actually
located within the county, or in case of a railroad corporation
where any portion of the road operated by it is within the county,
it is deemed a resident of the county; and personal service of a
summons, made within the county, as prescribed in this act, or
personal service of a mandate whereby a special proceeding is

iT i RPS
92 Report or Joint LeqisiaTiveE CoMMITTEE

commenced, made within the county, as prescribed in this act for
personal service of a summons, is sufficient service thereof upon a
domestic corporation wherever it is located. [Provided, however,
that a] A city which shall include within its boundaries, how-
ever, more than one county shall not [for the purpose of conferring
jurisdiction on a county court] be deemed a domestic corporation
resident of any county so included, for the purpose of conferring
jurisdiction on a county court.

[Code § 341, without change. Included by Board in Judiciary Law, § 181.
sub. 5, the provision for service being omitted.]

§ 69. When jurisdiction of county court co-extensive with
supreme court. Where a county court has jurisdiction of an
action or a special proceeding, it possesses the same jurisdic-
tion, power and authority in and over the same, and in the course
of the proceedings therein, which the supreme court possesses in
a like case; and it may render any judgment, or grant either party
any relief, which the supreme court might render or grant in a
like case, and may enforce its mandates in like manner as the
supreme court. [And the county judge possesses the same power
and authority, in the action or special proceeding, which a justice
of the supreme court possesses, in a like action or special proceed-
ing, brought in the supreme court.]

[Code § 348, first sentence without change. Included by Board in Judi-
ciary Law, § 181, sub. 7. The last sentence is to be a separate section.]

§ 70. Sessions of: county court. The county court is always
open for the transaction of any business for which notice is not
required to be given to an adverse party, except where it is
specially prescribed by law that the business must be done at a
stated term.

[Code § 355, without change. Included by Board in Judiciary Law, § 187.]

§ 71. Application of provisions to county court. Each pro-
vision of law or rule [this act] conferring power upon or
authorizing a proceeding to be taken at a [general, special, or
trial] specified term of court, [which is] if the provision be ap-
plicable to a county court, is to be construed as applying to any
‘term of the county court held pursuant to an appointment made
as prescribed by law.

[Code § 3342, without change of substance. Included by Board in Judi-
ciary Law, § 202.)
Civit Practice Act 93

§ 72. Service of execution or process of county court in any
county. A county court has power in an action or special pro-
ceeding of which it has jurisdiction to send its process and other
mandates into any county of the state for service or execution,
and to enforce obedience thereto, with like power and authority
as the supreme court.

[Code § 347, without change. Included by Board in Juliciary Law, § 181,
sub. 6.]

§ 73. Incapacity of county judge or special county judge.
If the county judge is for any cause incapable to act in an
action or special proceeding pending in the county court, or
before him, he must make, and file in the office of the clerk, a
certificate of the fact; and thereupon the special county judge, if
any, and if not disqualified, must act as county judge in that action
or special proceeding. Upon the filing of the certificate, where
there is no special county judge or the special county judge is dis-
qualified, the action or special proceeding is removed to the su-
preme court, if it is then pending in the county court; if it is
pending before the county judge it may be continued before any
justice of the supreme court within the same judicial district.
[The supreme court, upon the application of either party, made
upon notice, and upon proof that the county judge is incapable to
act in an action or special proceeding pending in the county court,
may, and if the special county judge is also incapable to act, must,
make an order removing it to the supreme court. Thereupon the
subsequent proceedings in the supreme court must be the same
as if it had originally been brought in that court, except that an
objection to the jurisdiction may be taken, which might have been
taken in the county court.]

[Code § 342, first two sentences without change. The remainder of the

section is included under “Venue.” This section included by Board in Judi-
ciary Law, §§ 186, 194a, 194b, 31.]

§ 74. Power of county judge in matters before county
court. Where a county court has jurisdiction of an action or spe-
cial proceeding, [and] the county judge possesses the same power
and authority in the action or special proceeding which a justice
of the supreme court possesses in a like action or special proceeding
brought in the supreme court.

[Code § 348, last sentence without change of substance. . Included ny Board
in Judiciary Law, § 184.]
a ‘ ‘ : 5
940 Reporr or Jowwr Leatsiatiye Comuirren

§ 75.'Power of county judge in special proceedings. The
county judge also ‘possesses the same power and authority, in
a special proceeding, which can be lawfully instituted before him,
out of court, which a justice of the supreme court possesses in a
like special proceeding, instituted before him in like manner.

[Code § 349, without change. Included by Board in Judiciary Law, § 182.]

§ 76. Power of county judge when holding court in
another county.. During, the, period that,any county judge
shall be i in a county other than his own, for the purpose of holding ©
courts therein, he may exercise all the powers and perform all the
duties of the county judge of such other county, which said last-
mentioned judge is by law authorized to exercise and perform out
of court or in vacation; provided, however, that nothing herein
contained shall empower him to perform the duties of surrogate
in such other county,

[Code § 356, without change. Included by Board in Judiciary Law, § 188.]

§ 77. Power of county judge to perform duties of justice
of supreme court at chambers. A county judge within his_
county. possesses and upon proper application must exercise
the power conferred by law in general language upon an officer
authorized to perform the duties of a justice of: the supreme court
at chambers or out of court.

[Code § 241, without change. Poeiaaea by Board in Judiciary Law, § 185.]

§ 78. Continuance, of proceedings before: judges of same
court. In the counties within the firstyand second judicial dis-
tricts, a special proceeding instituted before a judge of a court
of record, or a proceeding commenced before a judge of the court,
out of court, in an action or special proceeding pending i in a court
of record may be continued from time to time, before one or more
other judges of the same court, with like effect as if it had been
instituted. or .commenced hefone the judge who last hears the
same. ¢

[Code § 26, without change. Included by Board in Judiciary Law, § 31b.]

§ 79. Vacancies or changes in judges; power of judge out
of, office. An action or special proceeding, civil or criminal, in
Ut

Cryin’ PRacrics ‘Act 9

a court of record, is not discontinued by a vacancy or change in
the judges of the court or by the re-clection or re-appointment of
a judge; but it must be continued, heard and determined by the
court as constituted at the time of the hearing or determination.
After a judge is out of office, he may settle a case or exceptions,
or make any return of proceedings, had before him while he was
in-office, and may be compelled so to do by the court in which the
action or special proceeding 1 is pending.

[Code § 25, ‘without change. Included by Board in Judiciary. Law, §§ 12a
and 31k, and Code Criminal Brocedure, § 10d.

§ 80. Powers of court exercisable by referees.. Where La
provision of this act authorizes] the court 7s authorized to approve
an undertaking or the sureties thereto, or to make an examination
or inquiry, or to appoint an appraiser, receiver or trustee, it may
direct a reference to one or more persons designated in the order,
either to make the approval, examination, inquiry or appointment,
or to report the facts to the court for its action thereupon. [And]
Where, according to the practice of the court of chancery on the
thirty-first day of December, eighteen hundred and forty-six, a
matter was referable to the clerk or to a master in chancery, a court
having authority to act thereupon may direct a reference to one or
more persons, designated in the order, with the powers which
were possessed by the clerk or the master in chancery, except
where it is otherwise specially prescribed by law.

[Code § 827, without change of substance. Included by Board in Judiciary
Law, § 240. See:Civil Practice Act, § 45.]

14 gah ‘ ‘ 1 u

§ 81:'Removal of referees and other officers and appoint:
ment of successors. <A referee, recewer, commissioner or
appraiser appointed by a court ori judge may be removed by the
court. In case of the death, resignation, neglect or refusal to
servejior removal. of any such officer, another person may be
appointed in his stead.

[New. This section makes general provision’ for removal and appointment
of successors of various officers. See Code § 1550 as to commissioners in par-
tition and § 2329 as to. commissioners in lunacy proceedings. See also Board’s
proposed Rule 34, covering the same idea as is set forth in the above section.]
96 Report or Jor Leotsnative Committee

ARTICLE 4
ABATEMENT AND CONTINUANCE

Section 82. Abatement of action or special proceeding.

83. Proceedings upon transfer of interest, or devolution
of liability.

84. Proceedings when sole party dies and action survives.

85. Proceedings when one of several parties dies.

86. Proceedings when part of cause of action survives.

87. New parties and cross-actions.

88, Abatement by order of court.

89. Abatement in action for a wrong.

90. Abatement by death or removal of public officer or
trustee.

91. Exception as to special provisions.

92. Abatement by failure or adjournment of term of court.

93. Continuance of special proceeding before another
officer.

94, Proceedings before substituted officer.

95. Continuance of proceedings on removal from one
court to another.

§ 82. Abatement of action or special proceeding. An action
does not abate by any event if the cause of action survives or
continues. A special proceeding does not abate by any event
if the right to the relief sought in such special proceeding
survives or continues[,, but this provision as to special proceeding
applies only to cases where a party dies after this act takes effect].

[Code § 755. See Board’s proposed Civil Rights Law, §§ 23 and 29, which
are identical. The last clause is omitted as unnecessary. ]

§ 83. Proceedings upon transfer of interest, or devolution
of liability. In case of a transfer of interest, or devolution of
liability, the action may be continued by or against the original
party, unless the court directs the person to whom the interest is
transferred or upon whom the liability is devolved to be sub-
stituted in the action or joined with the original party as the
case requires,

[Code § 756. See Board’s proposed Civil Rights Law, § 31, identical.]
Cryin Practier Act 9”

§ 84. Proceedings when sole party dies and action survives.
In case of the death of a sole plaintiff or a sole defendant, if the
cause of action survives or continues, the court [must], upon a
motion, must allow or compel the action to be continued by or
against his representative or successor in interest. In ease of the
death of a sole party to a special proceeding [after this act takes
effect], if the right to the relief sought in sueh proceeding sur-
vives or continues, the court [must], upon a motion, must allow
or compel sueli proceeding to be continued by or against his rep-
resentative or successor in interest. This provision as to a special
proceeding does not apply where provision for such cantina spe
has been otherwise made by law.

[Code § 757. Omitted by the ‘Board as covered by rule 220.]

§ 85. Proceedings whem one of several parties dies. In
case of the death of one of two or more plaintiffs, or one of two or
more defendants, if the entire cause of action survives to or against
the others, the action may proceed in favor of or against the sur-
vivors. [But] The estate of a person or party jointly liable upon
contract with others, however, shall not be discharged by his
death, and the court may make an order to bring in the proper
representative of the decedent when it is necessary so to do
for the proper disposition of the matter; and, where the liability is
several as well as joint, may order a severance cf the action so
that it may proceed separately against the representative of the
decedent and against the surviving defendant or defendants.

[Code § 758. ,Omitted by the Board as covered by. rule 220,]

§ 86. Proceedings. when part of cause of action survives.
In case of the death of one of two or more plaintiffs, or one
of two or more defendants, if part only of the cause of action,
or part or some of two or more distinct causes of action, survives
to or against the others, the action may proceed without bringing
in the successor to the rights or liabilities of the deceased party;
and the judgment shall not affect him or his interest in the sub-
ject of the action. [But] Where it appears proper so to do, the
court may require or compel the suecessor, or a person who chains
to be the suecessor, to be brought in as a party, upon his’ own
application or upon the application of a party to tlie action, ae

. [Code § 759. Omitted by the Board as covered by its rule 220.]
my : : i ey or
4
98 Rervorr or Jom Leastarive. Commirrer

§ 87. New parties and cross-actions. , In a case specified in
the foregoing sections of this [title] article, where such a
person applies in his own behalf, the court may direct that he
‘be made a party, by amendment of the pleadings, or otherwise as
the case requires. Where an application is made by the plaintiff
to:bring in such a person as defendant, the court may direct that
a pipplemental summons issue and that supplemental pleadings
be'made. Where an application is‘made by a defendant to bring
in such a person, the court may, and, where the protection of the
applicant’s rights requires it, must, permit the defendant to com-
mence a cross action for that purpose. The cross action must be
brought in the same court unless the order otherwise specially
directs. If it directs that the action be commenced in another
court, the latter court [may], by order at any time after the cross
action i is commenced, may remove to itself the original action, with
like effect as if its hed been brought therein. Unless the court
otherwise directs, the original action and the cross action must
be tried and judgment render ed therein as if they were one action.

[Code § 760.. Omitted by the Board as covered by rule. 220.) i

§ 88. Abatement by order of court. At any time after the
death of the plaintiff, or after the marriage of the plaintiff, where
it affects the rights of either party, the court [may], in its dis-
cretion, upon notice to such persons as it directs, and upon the
applieation of the adverse party, or of a person whose interest
is affected, may direct that the action abate, unless it is continued
by the proper parties, within a time specified in the order, not
less than six months nor more than one vear after the granting
thereof. ae

[Code § 761. See Board’s. proposed Civil Rights Law, § 26, identical ex-
cept that § 762 is combined with § 761 by the Board.]

§ 89. Abatement in action for a wrong. An action com-
menced by a father. to recover damages for the seduction of
his minor daughter does not abate by his death, but survives to
the mother of such daughter, who may recover both actual and
exemplary damages therein to the same extent as though the origi-
nal party plaintiff had lived. After verdict, report or decision in
an action to recover damages for a personal injury, the action
does not abate by the death of a party, but the subsequent pro-
ceedings are the same as in a case where the cause of action sur-
C1vir Praction Act 9g

vives, [And] In case said verdict, report or decision is reversed
upon questions of law only, said action does not abate. by the
-death of the party against whom the same was rendered.

[Code § 764. See Board’s proposed Civil Rights Law, §§ 27, 28, covering
the above section.] ;

§ 90. Abatement by death or removal of public. officer or
trustee. Where an action or special proceeding is authorized or
directed by law to be brought by or in the name of a public officer,
or by a receiver, or other trustee, appointed by virtue of a statute,
his death or removal does not abate the action or special proceed-
ing; but the same may be continued by his successor, who Pinust J,
upon his application or that of a party interested, must be sub-

stituted for that purpose by the order of the court, a copy of which
must be annexed to the judgment-roll.

[Code § 766. See Board’s proposed Civil Rights Law, § 25, identical ex-
cept as to the last clause.)

§ 91. Exception as to special provisions. The foregoing
provisions of this [title] article do not apply to a case where
special provision is otherwise made by law.

[Code § 762. This section was consolidated by the Board with Code § 761
in Civil Rights Law, § 26.]

§ 92. Abatement by failure or adjournment of term of
court. When a term of « court fails or is adjourned or: the time
or place of holding the same is changed, [as prescribed in this
chapter, J an action, special proceeding, writ, process, recogniz-
ance, or other proceeding, [civil or criminal,] returnable or to be
heard or tried at that term, is not abated, discontinued or rendered
void thereby; but all persons are bound to appear and all pro-
‘ceedings must be had at the time and place to which the term is
adjourned or changed, or, if it fails, at the next term, with like
effect as if the term was held as originally appointed.
| [Code § 44. Reference to criminal proceedings omitted and included in

Code of Criminal Procedure. See Board’s proposed Judiciary Law, § 12c,
which is identical. ] ba

§ 93. Continuance of special proceeding before another offi-
cer. In case of the death, sickness, resignation, removal from
office, absence from the county, or other disability of an
100 Report oF Joint Leatsiative' Committrr

officer before whom or in whose court a special proceeding has
been’ instituted; where no express provision is made by law for
the continuance thereof, it may be continued before the officer’s
‘successor, or any other officer residing in the same county before
whom it might have been originally instituted; or, if there is no
such officer in the same county or in case such officer be disquali-
fied, then before an officer in an‘adjoining county wlio would origi-
nally have had jurisdiction of the subject matter if it had oceurred
or existed in the latter county. [and] In case such special pro-
ceeding be pending in a county court and the county judge of the
county be disqualified to hear and decide the same, [then in such
ease] all further proceedings therein: may be had in the county
court of any adjoining county, which court shall have jurisdiction
to hear, try and determine the same and to enforce its:order..

[Code § 52. See Board’s proposed Judiciary Law, 8 12e, which is identical. ]

§ 94. Proceedings before substituted officer. 7. At the time
and place specified in a notice or order for a party to appear
or for any other proceeding'‘to be taker, or at the’ time and
place specified in ‘the notice to beigiven, as prescribed in
this section, the officer substituted as prescribed [in the last sec-
tion, or in any other provision of]. by. law, to continue a special
proceeding instituted before another, may act, with respect. to the
special, proceeding: as if it hail — otiginally peered aoe
him. | OB) Pee Say

2. rBut] A proceeding shall not be taken ais a pabeke
tuted officer at a time or place other than that specified in the
original notice or order, until notice ‘of the substitution and of
the time and place appointed for the proceeding to be taken has
been given, either by personal service or by publication, in such
manner and for. such time as the substituted officer directs, to

each party who may be affected mee and who has not appeared
‘before either officer. — i

3. Where, after a hearing has heen saeinee: it
is adjourned ‘to, the next judicial day, each day to which
it:is so adjourned is regarded for the purposes of this section as
the day specified in the original notice or order or in the notice
to appear hefore the substituted officer as the case requires.

[Code § 53. See Board 8 proposed Sanity Law, § Tf, which 4g identical
with first sentence ‘of | os '58. See Board’s note ma voi

given

a)
 

Civiz, Practice Act a ve AYO 2
<> | wey

§ 95. Continuance of proceedings on removal “Yeont cone
court to another. The removal of an Action or special proceed-
ing [as prescribed in this title,] from one court to another does
not invalidate or in any manner, impair, a process, provisional
remedy or other proceeding, or a bond, undertaking or recog-
nizance in the action or special proceeding so removed, each of
which continues to haye the same validity and effect as if the
removal had not been made. Where bail was given, the surrender
of the defendant in the supreme court has the same effect as a
surrender in the county, court would have had if the action or
special proceeding had ‘remained therein.

[Code § 346, without change of substance. Included by Board in Judiciary
Law, § 3la.].

\

ARTICLE 5
CONSOLIDATION AND SEVERANCE

Section 96. Consolidation and severance of actions.
97. Consolidation of actions pending in different courts.

§ 96. Consolidation and severance of actions. For the pur-
pose of expediting the determination of controversies, an action
may be severed and actions may be consolidated whenever it can
be done without prejudice toa substantial right.

[New. See Board’s proposed Civil Practice Act, § 13, practically identical.
See also first sentence of Board’s rule 5. This section will cover Code

§§ S17, 819, 1220, and last sentence of § 497. The first sentence of § 497 is
omitted as unnecesgary.]

§ 97. Consolidation of actions pending in. different courts.
Where one of the actions is pending in the supreme court and
another is pending in another court, the supreme court [may],
by order, may remove to itself the action in the other court and
consolidate it with that in the supreme court.

"Code § 818. Omitted by the Board as covered by rule 5.]

Y
102 Report or Jornt LeeisuativE CoMMITTEE
Rea Sy ty Bey

ARTICLE 6
. EXTENSION OF TIME

Section 98. Extension of time generally.
i 99. Limitation on extension of time.

§ 98. Extension of time generally. Except as otherwise
expressly provided by statute, the court,or a judge shall have
power after the commencement of an action or special proceeding
to enlarge the time appointed by statute or rules, or fixed by any
order enlarging time, for doing any act or taking any proceeding,
upon such terms as the justice of the case may require, and any
such enlargement may be ordered upon good cause shown al-
though the application for the same is not made until after the

expiration of the tame appointed or allowed.
Ee ea
{[New. Taken from English Practice Rules, order 64, rule 7. The provision
suggested by the committee does not give the court power to “ abridge” the
time for doing an act or taking a proceeding as does the English rule. The
committee’s provision also covers “ Special Proceedings,” which are not cov-
ered by Code §§ 781 and 783 upon this subject. Code §§ 781 and 783, omitted
as covered. See Board’ s rule 8, which includes Code §§ 781 and 783, practically
identical. ]

§ 99. Limitation on extension of time. 7. A court or a judge
is not authorized to extend the time fixed by law within which to
commence an action; or to ti ke an appeal ; or to apply to continue
an action where a aris thereto has died or has incurred a dis-
ability ; or the time fixed by the court within which a supple
mental complaint must be made in order to continue an action ;
or,an action is to abate unless it is continued by the proper parties.

_&. A court or a judge cannot allow either of those acts to be

one after the expiration of the time fixed by law, or by the
order, as the case may be, for doing it; except [in a case specified
in the next section] where a party ‘entitled to appeal from a
judgment or order, or to move to set aside a final judgment for
error in fact, dies [either before or after this chapter takes effect,
and] before the expiration of the time within which the appeal
may he taken or the motion made, the court may allow the appeal
to be taken or the motion to be made by the heir, devisee or per-
Civit Practice Act 1038

sonal representative of the ce at any time within four
months after his death. |

[Subd. 1, and subd. 2, to end of bracket, are Code § 784. From end of
bracket to end of subd. 2, is Code §:785. See Board’s proposed Civil Practice

Act, § 56, identical. See also Board’s rule 323 which refers to the “ four
months ” period mentioned in subd. 2.]

ARTICLE 7
FILING PAPERS

Section 100. Filing papers in an action.
101. Filing papers in a special proceeding.

§ 100. Filing papers in an action. The summons and each
pleading in an action must be filed with the clerk by the party
in whose behalf it is served within [ten] five davs after [the
service thereof] notice from the adverse party requiring such ftling,
and upon failure to comply with such notice, the court or a judge,.
im its or his discretion, may order that such summons or plead-
ing be deemed abandoned either absolutely or upon failure to file
within a time, if any, permiticd by the order. [If the party
fails so to file it, the adverse party, on proof of the failure, is
entitled, without notice, to an order from a judge, that it be filed
within a time specified in the order, or be deemed abandoned. ]

[Code § 824 rewritten and amended as indicated. The’ present requirement
of § 824 that the summons and each pleading be filed within ten days after
service is not observed. The section as here amended wil] provide a method

of. requiring the filing in any case when it shall appear necessary or proper
that there should be such filing. See Board’s proposed rule 12.]

§ 101. Filing papers in a special proceeding. <A return or
other paper in a special proceeding, where no other dispo-
sition thereof is prescribed by law, must be filed, and an order
therein must be entered, with the clerk of the county in which the
special proceeding is taken, if it is before a county officer or a
judge of a court established in a city; if before a justice of the
supreme court, with the clerk of a county designated by the jus-
tice ; or, if no designatiqn i is made by him, of a county where one
of the parties resides.

[Code § 825. See Board’s proposed rule 12.]
104: Report or Jotnt: LeqistAtive ComMMItTTEer

ARTICLE 8
ee ee MANDATES

ae ivy 1
Section 102. Duties of officer receiving mandate. _
103. Trial of claim of title to property seized by sheriff
* under a mandate.
104. Expenses of trial of claim of title by third person.

§ 102. Duties of officer receiving-mandate. A sheriff or other
officer to whom a mandate of any description is selivered to be
executed

‘1. Must give, without compensation, to the person jaiveting
the same, if required, a [minute-in writing, signed by the sheriff,
specifying the names of the parties, the general. nature of the
mandate, and} written receipt describing the mandate and speci-

fying the day and hour of receiving the same.

“TA sheriff, or other officer, to phions a mandate is directed vial
delivery 2: Must execute the same according to the command
thereof’ and: make return thereon of his proceedings [under his
handj. For a violation of this provision he is liable to the party:
agerievedifor the damages sustained by. him, in addition to any
fine or other punishment or proceeding authorized by law.

. ZA sheriff or other officer, serving a mandate,] 3. Must [upon
the request of the person served,] deliver, without compensation,
[to him] a copy [thereof, without compensation] of the mandate
to, the person served, upon his. request.

* 4. [[A mandate directed and delivered to a sheriff mav be re
turned, May return a mandate directed to himself by depositing
[the same] in the pest-office, properly inclosed in'a post-paid
wrapper, addressed to the clerk, at the place where his office is
situated, unless ‘the officer making the return in the name af the
sheriff resides in the place where the clerk’s office is situated.

[A sheriff, or other officer, to whom is delivered for service or
execution, a mandate, authorized by law to be issued, by a judge
or other officer, in a special proceeding. ] 5. Who wilfully neglects
to execute [the same] a mandate, suite iiod by law to be issued
by a judge er other officer, m a special proceeding, may be fined
hy the judge in a sum not exceeding twenty-five dollars and is
liable to the party aggrieved for his damages sustained thereby.
Crvit Practice Act 105

u[Subd, 1 is Code § 100. See Board’s proposed County Law, § 186¢, identical
in substance. Subds. 2 and 4 are Code § 102. See Board’s proposed County
Law, §§ 82 and 186g, and Board’s proposed Public Officers Law, § 77, iden-
tical in substance. Subd. 3 is Code § 101. Sec Board’s proposed County Law,
§ 186c, and Board’s Public Officers ‘Law, § 76, identical in substance. Subd.
5 is Code § 103. See Board’s proposed County Law, § 83, identical in sub-

stance. ] ;

§ 103. Trial of claim of title to property seized by sheriff
under a mandate. Where it is specially prescribed by law. that
a sheriff must or may, in his discretion, impanel a jury to try
the validity of a claim of title to or of the right of: possession
of goods or effects seized by him by virtue of a mandate in an ac-
tion, interposed by a person not a party to the action, the trial
must be conducted in the following manner, except as otherwise
specially prescribed by law:

‘1, The sheriff [must] from time to time must notify as many
persons to attend as [it is] may be necessary [in order] to form
a jury of twelve persons qualified to serve as trial jurors in the
county court of the county, or in the city and county of New York,
in the supreme court, to try the validity of the claim.

2. Upon the trial, witnesses may be examined in behalf of
the qlaimant and = the party at whose instance the property
claimed was taken by the sheriff. For the purpose of compelling
a witness to attend and testify, the sheriff, upow the application
of either party to the inquisition, must issue a subpoena, as pre-
seribed in section [854] four hundred and twenty-one: of this
act, and with like effect; except that a warrant to apprehend or
coramit a witness in a-case specified in such section [855 or
section 856 of this act] may be issued by a judge, of the court ia
which the action is brought or by the county judge. ©

3. The sheriff or under sheriff must preside upon the trial. A
witness produced by either party must be sworn by the presiding
officer and examined orally in the presence of:the jury. <A wit-
ness whe testifies falsely upon such an examination is guilty of
perjury in a like case and-is'punishable in like manner as upon
the trial of a civil action.

[Code § 108. See Board’s rule 386 for trial to claim of title to property
‘levied v upon under execution or seized under a warrant of attachment. See
also Code § 657 in this connection. Code §§ 2828 and 2330grelate to ‘sheriff’s
jury in incompetency cases. ]
106 Report or Jornt Leaisuative CoumrirrEe

§ 104. Expenses of trial of claim of title by third person.
Upon such a trial there are no costs; but the fees of the sheriff,
jurors and witnesses must be taxed by a judge of the court or the
county judge of the county and.must be paid as follows: ,

1, If the jury by their verdict find the title or the right. of
possession to the property claimed to be in the claimant, by the
party at whose instance the property was taken by the shorftf,

'2.<1f they. find adversely to the claimant with eee ‘to- all
the property claimed, by the claimant... © = et

8. If they find the title or right of possession to any a part
of the property claimed to be in the claimant, each party must
pay his own witnesses’ fees, and: the sheriffs and jurors’ . fees
must be paid, one-half by each party to the inquisition.

Before notifying the jurors, the sheriff [may], in his Jae
tion, may require cael of the parties to the controversy to deposit
with: him. such reasonable sum.as may be necessary to cover his
legal fees and. the}jurors’ fees. The sheriff must return to each
party the balance of the:sum so deposited by him, after deducting
his fees lawfully ae to that party, as prescviied in this
section.

[Code § 109. Omitted by the Board as covered by rule 386.1 ©

ACTICLE 9
MISTAKES, DEFECTS AND IRREGULARITIES

Bechan 105. Mistakes, omissions, defects or irregularities.
106. Error in ruling of rua court.
107. Omissions ‘in taking appeals.
108. Relief against default judgments and orders.
109. Mistake, defect or imeaulersty as een judg-
“= ment. i
110. Mistake. in court.
111. Mistake in. remedy demanded.
112. Supplying defects by appellate court.

§ 105. Mistakes, omissions, defects and irregularities. Af
any stage of any action, special proceeding or appeal, a mis-
take, omission, irregularity or defect may be corrected or supplied,
as the case may be, in the discretion of the court, with or without
Crvit Practice Act . 107

terms, or, if a substantial right of any party shall not be thereby
affected, such mistake, omission, irregularity or defect must be
disregarded.

[New. This section is adapted from « section proposed by a Special. Prae-
tice Committee of the New York County Lawyers’ Association (proposed Civil
Practice Act, § 8), and also by the Special Practice Committee of the New
York State Bar Association (proposed Civil Practice Act, § 8). The section
proposed by the latter committee, which is substantially identical with that
of the former, was as follows:

Ҥ 8. At any stage of any action, special proceeding or appeal, a mistake,
irregularity or defect, in the discretion of the court, may be corrected or
disregarded, provided that a substantial right of any party shall not be
thereby affected.”

See also Board’s proposed Civil Practice Act, § 10, as follows:

Ҥ 10. In the interest of justice, at any stage of the case, a mistake,
irregularity or defect in any of the proceedings in an action or proceeding
which does not affect a substantial right of a party shall be disregarded: ue

See also Board proposed rule 16, as follows:

“16. A mistake, defect or irregularity in the process, pleadings, papers,
appeal, judgment or other matters or proceedings in an action or a procced-
ing, at any stage thereof, not affecting a substantial right shall be disregarded
when necessary in the interest of justice and shall be supplied upon such
terms as justice requires.”

Under rule 16 an error or omission not affecting a substantial right shall
be disregarded only “ when necessary in the interest. of justice and shal] be
supplied upon such terms as justice requires,” and section 8 as proposed by
both the Special Committee of the State Bar Association and the Special
Committee of the County Lawyers’ Association an immaterial error or defect
“may, in the discretion of the court, be corrected or disregarded.” All of
these provisions are narrower than the language of present Code § 723, which
provides in terms that at all times “the court must disregard” such an
error or defect. This idea has been retained in the section proposed by this
committee as above, namely, that when a substantial right is not affected
the error or defect ‘ must” be disregarded. See also Board’s proposed rule 2
providing for an order to correct or supply an omission or defect. This rule
is not necessary if the section of this committee be. adopted.

The reference to supplying an “ omission” is inserted because of the latter
part of Code § 724.

The reference to ‘‘ appeal” is inserted because of the last sentence of Code
§ 1317, added in 1912, reading as follows:

“After hearing the appeal, the court must give judgment, without regard
to technical errors or defects or. to exceptions which do not affect the sub-

. stantial rights of the parties.”

The committee recommends the repeal of Code §. 723, as covered by the
section here proposed. Section 723, with amendments suggested in case the
committee’s substitute section is not adopted, is as follows:

(The court may, upon the trial, or] “an order may be made at any [other]
stage of [the] an action, before. or after’ judgment, in furtherance of justice,
108 Report or Joint Leaistative ComMitrer

and Jon. such] ,with or without terms [as it deems just, amend] amending
any process, pleading, or other proceeding, by adding or striking out the name
of a person as a party, or by correcting a mistake in the name of a party,
or a mistake, omission, defect or irregularity in any other respect, or by insert-
ing an allegation material to the case; or, where the amendment does not
change substantially the claim or defense, by conforming the pleading or other
proceedings to the facts proved. [And, in] At every stage of the action, [the
court must disregard] an error, omission, [or] defect or irregularity,-in the
pleadings or other proceedings, which does not affect the substantial rights of
the adverse party must be disregarded. {When amending a pleading or per;
mitting the service of an amended or supplemental pleading in.a case which is
on the general calendar of issues of fact, the court may direct that the case
retain the place upon such calendar which it occupied before the amendment
or new pleading was allowed, and that the proceedings had upon the amended
or supplemental pleadings shall not affect the place of the case upon such
calendar, or render necessary the service of a new notice. of trial.’’]
(Code § 723, amended as indicated.) Code § 728 omitted as covered.]

§ 106. Error in ruling of trial court. Upon @ motion for a
new trial or upon appeal, an error in a ruling of the trial court
must be disregarded if w substantial right of any party shall not
thereby be affected.

[New. See Code § 1003, last part of second sentence.] -

§ 107. Omissions in taking appeals. Where Line] an
appellant, seasonably and in good faith, serves [the] a notice of
appeal, either upon the dled. or upon the adverse party, or his
attorney, but omits, through mistake, inadvertence or excusable
neglect, to serve it upon the other, or to do any other act necessary
to perfect the appeal or to stay the execution of the judgment or
order appealed from; the court, in or to which the appeal is takén,
upon proof, by aiidavtt of the tried: may permit, in its diseretion,
[permit] the omission to be supplied, or an amendment to be
made, upon such terms as justice requires.

[Code § 1303. Omitted by Board as covered by its proposed Rule 16.]

§ 108. Relief against default judgments and orders. The
court [may likewise], in its discretion, and upon such terms as
justice requires, at any time within one vear after notice thereof,
may relieve a party from a judgment, order or other proceed-
ing, taken against him through his mistake, inadvertence, sur-
prise or excusable neglect[ ; ond may supply an omission in any
‘proceeding. Where a proceeding, taken by a party,.fails to con-
form to a provision of this act, the court may, in like manner,
-Crvrn. Practice Act 109

andi upon like terms, permit an amendment thereof, to conform
it to the provision].

[Code -§°724. , Bracketcd portion omitted: as covered by general section on
mistakes and omissions. See Board’s rule 6, practically identical.]

§ 109. Mistake, defect or irregularity as affecting judg-
ment. In a court of record, where a verdict, report or decision
has been rendered, the audement shall not be stayed, nor shall any
judgment of a court of record be impaired or atlected, by reason
of either of the following imperfections, omissions, defects, mat-
ters or things, in the process, pleadings or other proceedings:

1. For want of a summons or other writ.

2. For any fault or defect in process, or for misconceiving a
process, or awarding it to a wrong officer.

8. For an imperfect or cuaiticlent return of a sheriff or other
officer, or because an officer has not subscribed a return actually
made by him.

4. For a variance between the summons and complaint.

5. For a mispleading or insufficient pleading[, or jeofail].

6. For want of a warrant of attorney by either party.

7. For the appearance, by attorney, of an infant party, if the
verdict, report or decision, or the judgment, is in his favor.

8. For omitting to allege any matter without proof of which
the verdict, report or decision ought not to have been rendered.

9. For a mistake in the name of a party or other person; or
in.a sum-of money; or in the description of property; or in re
citing or stating a day, month or year; where the correct name,
sum, description or date, has been once rightly stated, in any of
the pleadings or other proceedings.

10. For a mistake in the name of a juror or officer.

11. For an informality in entering judgment or making up the
judgment-roll.

12. For an omission on the part of a referee to be sworn; or
for’ any other default or negligence of the clerk or any other
officer of the court or of a party, his attorney or counsel, by
which the adverse party has not been prejudiced.

-Each of the omissions, imperfections, defects and variances
specified in [the last] this section, and any other of like nature,
not being against the right and justice of the matter, and not
altering the issue between the parties, or the trial, must be sup-
plied when necessary, [be supplied,] and the proceeding amended,
110 Report or Jornt Leaisitative CoMMITTEE

by the court wherein the judgment is rendered or by an appellat:
court.

[All except last sentence is Code § 721. Last sentence is Code § 722. Se
Board’s rule 17, identical except § 722 omitted. Reference to “ jeofail” omit
ted as obsolete. Section 722 has been retained because it applies after judg
ment and is not limited in its terms as to time. The correction here migh
be made after the action itself was completed.

Code § 725 is omitted as covered as to amendment after a judgment b;
subd. 3 of Code § 721, which has been retained and as to amendment befor:
‘judgment,’ by the general rule on mistakes and defects at any stage of th
action.

Code § 728. has been omitted as covered by the general section on dis
regard of mistakes, defects and omissions. Code § 727 has been transferre
to Penal Law.)

§ 110. Mistake in court. No action or special proceedin
shall fail or'be dismissed on the ground of a mistake in the cour
in which the action or proceeding is brought, but in such case, «
justice of the supreme court, upon such terms as may be just
may remove the action or proceeding to the proper court, bi
order. Where an order for removal is made as prescribed in thi
section, the subsequent proceedings must be the same as if th
action or proceeding had been instituted in the court to which th
removal is made.

[New. See Board’s Civil Practice Act, § 11. Power to correct a mistak
in venue, remedy or procedure is granted elsewhere. ]

_§ 111. Mistake in remedy demanded. Whenever in ant
action or. special proceeding it shall appear at any stage of th
‘proceedings, or upon appeal, that the appropriate remedy upoi
the facts pleaded or alleged, or proved, is different from that aske
for in the pleadings or corresponding papers, the proceedings mai
be amended upon such terms as may be just, if jurisdiction exist
to grant the proper remedy, and may be continued and deter
mined by the court and at the term where then pending, or remit
ted to the proper term or court to be disposed of, in order that th
relief may be finally granted which is appropriate to the facts
to the same extent as if the application had been in the firs
stance for the relief granted. The court may correct by amend
ment all defects and irregularities in matters of form or procedur.
and nay bring in all parties necessary to completely determin
the matter and award the appropriate relief upon the fact

noftahlioh nd
-Civit Practice Act 111

[New. See Board’s Civil Practice Act, § 11. Power to correct a mistake in
court, venue or procedure is granted elsewhere. The above new section is
based largely upon and supersedes present Code § 2148a, added in 1915,
which relates to certiorari and mandamus proceedings  only.]

§ 112. Supplying defects by appellate court. Any court of
record exercising jurisdiction of an appellate nature may [issue
a writ of certiorari, requiring the] require, by order, a body or
officer whose proceedings are under review, to make a return to
the court [issuing the writ] granting the order, at a time and
place fixed by the court, and designated in the [writ] order, for
the purpose of supplying any diminution, variance or other
defect, in the record or other papers before the court [issuing
the writ] granting the order, in any case where justice requires
that the defect should be supplied, and adequate relief cannot be
obtained [by means of an order] in any other manner.

[Code § 2124, amended to provide for an order by the appellate court instead

of a writ of certiorari. The section was omitted by the Board as covered by
general rules. Sce Board’s note 1406.]

ARTICLE 10
MOTIONS

Section 113. Definition of motion.

114. Notice of motion where order required to commence
action or proceeding.

115. Motion, before whom made.

116. Motions before judge in first judicial distriet.

117. Application for alternative or general relief on
motion.

118. Subsequent application after denial or conditional
granting of prior motion.

119. Application for relief by affidavit or petition.

§ 113. Definition of motion. An application for an order is
a motion.

[Code § 768, first sentence. See Board’s proposed -General Construction
Law, § 31a.]

§ 114. Notice of motion where order required to commence
action or proceeding. If, by statute, an order is necessary to
118 Report or Jornt Lecistative' ComMITTEE

authorize a Berson to cemmence an action or proceeding, and the
statute does not, require notice of the application nor expressly
dispense therewith, the rules may authorize the court or judge to
require notice and to designate the persons to be notified.

ae Suggested by Code § 1758, transferred by the committee to rules.]

$1 115. Motion, before whom made. [Such application or]
1, 0A motion must be made to a court or to a judge or justice
thereof.

2. When the defendants have made default in appearing in an
action or proceeding, any application or motion therein may be
made to the court or to a judge or justice thereof out of court.

3. Where any of the defendants in an action or proceed-
ing have appeared, all motions or application thereafter made
in such action or proceeding, except a motion made for an
additional. extension of time to plead, on two days’ notice, [under
rule twenty-four of the general rules of practice} which may be
made to a judge, and except where it is otherwise authorized by
law, must be made to the court, unless such defendants consent to
the making of such motion or application to a judge or justice out
of court.

[Code § 768, second, third and fourth sentences, See Board’s proposed rule
22. The first sentence of § 768 is the first section under this article, The
fifth sentence is under “Affidavits”; the sixth and the last are elsewhere in
this ‘article, and the’ remainder of ‘the section is omitted. The portion of
§ 768 here quoted is omitted as unnecessary in view of the general rule on
mistales and defects. oe Board refers to rule 16.]

es 116. Motions before judge in first judicial district. In
the first judicial district, a motion which elsewhere must be
made in court, may be made to a judge out of court, except for a
new trial on the merits.

[Code § 770.’ Omitted by the Board as covered by rule 22

§ 117. Application for alternative or general relief on
wotion. The party making a motion may specify, 1 in the notice
thereof, [specify] one or more kinds of relief in the alternative
or otherwise, and the adverse party Emust], where at least eight
days’. notice ae the motion shall be given, must serve, at least. one
day prior to the time at which the motion is noticed to be heard,
[serve] upon the attorney for the moving party, copies of the
‘Cryin Practice Act 113

affidavits and papers which he expects to read in opposition to the
motion[; he may, at]. -(¢-least three days prior to the time at
which the motion is noticed to be heard, he may serve upon the
attorney for the moving party a notice, with or without affidavits
or other papers in support thereof, specifying any kind or kinds
of relief in the alternative or otherwise to,which he claims to be
entitled in the action, whether the relief so asked for be responsive
or not to the relief asked for by the moving party.

[Code § 768, sixth sentence. This provision in the nature of an “ omnibus
motion ” was.added to the Code by L. 1911, ch. 763. It is very broad in terms
and affords opportunity for much relief. in that on a single motion any kind
of relief may be asked “in the alternative or otherwise” and * whether the
relief asked for be responsive or not to the relief asked for by the moving
party.” See Board’s proposed rules 241-244, and its Civil Practice Act, §:32.|

§ 118. Subsequent application after denial or conditional
granting of prior motion. If an application for an order, made
to a judge of the court or to a county judge, is wholly or partly
refused, or granted conditionally, or on terms, a subsequent appli-
cation ia reference to the same matter and in the same stage of
le proceedings shall be made only to the same judge or to the
court. If it is made to another "judge, out. of court, an order
granted thereupon must be vacated by the judge who made it, or,
if he is absent, or otherwise unable to hear the application, by
any judge of the court, upon proof, by affidavit, of the facts. A
person making an application forbidden by [the last two sections]
this, section, with, knowledge of the previous application, [shall]
may be punished [by the court,J for a contempt.

[First two sentences are Code § 776. Last sentence is Code § 778.. See
Board rule 28, identical. Code § 778 refers to “the last two sections,” that
is, 8§ 776 and 777. Section 777 will be omitted.]

— § 119. Application for relief by affidavit or petition. Any
‘proceeding which is required by statute to be instituted by
petition may also be instituted by an affidavit setting forth the
matter which it is required that the petition shall contain, ac-
companying a notice of an application for the relief which prop
erly would [properly] be prayed for in the petition: and in like
manner a proceeding which, by statute, is required [by statute]
to be instituted by affidavit may be instituted by petition.

[Code § 768, fifth sentence. This section was omitted by the Board in view
“of the change in practice. The provision was added to the Code in .1911
together with the provision, contained in Code § 768 relating to the “ omnibus
motion.” Both of these provisions constituted reforms in practice and should

be kept as a part of the act.]
114 Report or, Jornt Leqgistative ComMirrer

ARTICLE 11
a _ NOTICE OF PENDENCY

‘

‘

Sorhen 120, ‘Notice of pendency by plaintiff.
121. Effect of notice:
122. Recording and indexing of notice.
123. Cancellation of notice.
124. Cancellation by deposit or undertaking.

ane

125. Notice, by defendant.

§ 120. Notice of pendency by plaintiff. Jn an action brought
to recover a judgment affecting the title to, or the possession, use,
Or enjoyment of real property, if the complaint is verified, the
plaintiff [may], when he files his complaint, or at any time after-
wards before final judgment, may file in the clerk’s office of each
county where the property is situated a notice of the pendency of
‘the action, stating the names of the parties and the object of the
action, and containing a brief description of the property in that
county, affected. thereby. Such a notice may be filed with the
complaint before the service of the summons; but, in that case,
personal service of the summons must be made upon a defendant,
within sixty days after the filing, or else, before the expiration
of the. same time, publication of he summons must be commenced,
‘or service thereof must he made without the state, pursuant to an
order obtained therefor[, as prescribed in chapter fifth of this
act]. 7

[Code § 1670. See Board’s rule 31.]

§ 121. Effect of notice. Where a notice of the pendency of
an action may be filed, [as prescribed in the last section,]
the pendency of the action is constructive notice, from the time
of so filing the notice only, to a purchaser or incumbrancer of the
property affected thercby, from or against a defendant with re
spect to whom the notice is directed to be indexed[[, as prescribed
‘in the next section]. A person whose conveyance or incumbrance
is subsequently executed or subsequently recorded is bound by
all proceedings taken in the action after the filing of the notice,
to the same extent as if he was a party to the action. After a
notice of pendency of action has been cancelled [as herein pro-
‘Civit’ Practricr Act 115

vided], neither the proceedings in the action nor any judgment
which may be rendered therein shall affect the real property
described in any such cancelled notice [of pendency which has
been cancelled pursuant to the provisions of this section].

[Code § 1671, first two sentences and last sentence. See Board’s proposed
Real Property Law, §§ 736 and 737, which are practically identical.]

§ 122. Recording and indexing of notice. Each county clerk
with whom such a notice is filed must immediately record it in a
book kept in his office for that purpose and index it to the name
of each defendant, specified in a direction appended at the foot
of the notice and subscribed by the attorney for the plaintiff.
The notice filed in partition suits must be indexed against the
name of each plaintiff and of each defendant having any interest
or estate in the premises. [The expense of procuring a new
book, when necessary, must be paid out of the county treasury,
as other county charges. ]

' [Code § 1672. Last sentence omitted as covered by the County Law pro-
visions on expense of procuring books.]

‘'§ 123. Cancellation of notice. After the- action is settled.
‘discontinued or abated, or final judgment is rendered therein
against the party filing the notice, and the time to appeal there-
from has expired, or if a plaintiff filing the notice unreasonably
neglects to proceed in the action, the court [may], in its discre-
tion, upon the application of any person aggrieved and upon such
notice as may be directed or approved by it, may direct that a
notice of the pendency of an action[, filed as prescribed in the last
four sections, } be canceled of record by a particular clerk, or by all
the clerks, with whom it is filed and recorded. The cancellation
“must be made by a note to that effect, on the margin of the record,
‘referring to the order. Unless the order is entered in the same
clerk’s office, a certified copy thereof must be filed therein before
the notice is canceled. [In a judgment creditor’s action, the court
may, at any stage of the proceeding. upon notice to the plaintiff
or to the judgment creditor to be affected thereby, direct that a
notice of the pendency thereof be canceled, upon payment into
‘court of the amount of the judgment or judgments sought to be en-
forced in such action, together with the accrued interest and such
sum in addition thereto as the court may deem sufficient to cover
116 Report or Jormr Lee@ispative ComMItTEE

interest likely to,accrue during the pendency of the action and
costs.. Or, in lieu thereof, the court may, in its discretion, order
that, an undertaking be given in a sum double the amount of. the
judgment or judgments sought to be enforced, with two sufficient
sureties to be approved by the court or a judge thereof, conditioned
that the defendant or defendants applying therefor ‘will pay ‘the
judgment or judgments sought to be enforced against said prop-
erty, with interest and costs in the event that a final judgment
shall be entered in such judgment ereditor’s action in favor of the
judgmeut creditor or creditors to the effect that such real estate
was, ut the time of the filing of said notices of pendency of action,
equitably chargeable therewith. A copy of said undertaking, with
notice of the fling of the same, shall be served upon the attorney
fur the judgment Graititos: and notice of not less than two days of
the justification of the sureties. Upon the approval of such under-

taking by the court or a judge thereof, the court may direct that the
notice of pendency of action be canceled of record, in the manner
above provided. Where a judgment creditor’s action is brought
by the plaintiff as well on his own behalf as on behalf of such
other creditors as may come in and contribute to the expense of
such action, notice of the application to cancel such lis pendens
shall be given, as wel] to the plaintiff as to such other judgment
creditors as‘ shall, be‘ure the service of the notice of motion or
order to show cause, have. served upon the attorney appearing for
‘the defendant in whose name the title shall stand at the time of
the commencement ‘of the action, a notice to the effect that such
judgment creditor elects to come in and contribute to the expenses
of such action, which notice. shall also describe the judgment by
giving the name of the court in which it was recovered, such recov-
‘ery and the amount thereof, and shall be accompanied by an aff-
davit of the judgment creditor or his attorney to the effect that
such judgment has been duly docketed, giving the date and place
of such docket, and that an execution has been issued thereon to
the sheriff of the proper county and has been returned unsatisfied,
‘and the amount claimed to be due thereon. In such case the court
shall provide for like deposit or like security, as the case may be,
for the benefit of the judgment creditor giving such notice before
the cancellation of such notice of pendency of action.]

[Code § 1674. Bracketed portion omitted as sufficiently covered by next
‘section. See Board’s rule 32, practically the same.]
Civin Practice Act 117

§ 124. Cancellation by deposit or undertaking. In an
action, other than an action to foreclose a mortgage or for the
partition of real property or for dower, in which a notice of the
pendency thereof has been filed and in which it shall appear to
the court that adequate relief can be secured to the party ‘filing the
same by a deposit of money or in the discretion of the court by
the giving of an undertaking, where the cancellation of such notice
is not otherwise expressly provided for or regulated, any person
having an interest in the property affected by the action may
apply for the cancellation thereof upon notice to all the parties to
the action and to such other persons as the court may direct; and
the court in which the action is pending may make an order for
deposit or for an undertaking upon such terms as to costs or other-
wise as may scem just.

[New. Board’s rule 33. Rewritten from Code § 1671 part, and intended
to cover all of § 1671 except first and last sentences. ]

§ 125. Notice by defendant. Where a defendant sets up in
his answer a counterclaim, upon which he demands an affirmative
judgment affecting the title to, or the possession, use or enjoyment
of real property, he may file a like notice at the time of filing
his answer or at any time afterwards before final judgment[, file
a like notice]. The last [three] five sections apply to such a
notice. For the purpose of such an application, the defendant
filing such a notice is regarded as a plaintiff and the plaintiff is
regarded as a defendant.

{Code § 1673. Board omits as covered by rule 31.]

ARTICLE 12
OATHS OF REFEREES AND OTHER OFFICERS
Section 126. Oath of referee and other officer.

-§ 126. Oath of referee and other officer. 4 referee, receiver,
commissioner or appraiser appointed by a court or judge, before
entering upon his duties, shall subscribe and take an. oath, which,
‘except as otherwise prescribed by statute or rule, shall be to the
effect that he will faithfully, honestly and impartially discharge
the trust committed to him. Where all the parties whose interest
118 Report or Joint LeGtsLaTive CoMMITTEE

will be affected by the result are of full age and are present or
are represented by attorneys, the oath may be waived, a record
thereof being duly made.

“[New. See Code § 1550, providing for oath by commissioners in partition,
and § 2329, providing for oath by commissioner in lunacy: proceedings. The
provision for the taking of an oath has been made general, as to referees,
receivers, commissioners and appraisers. The provisions in §§ 1550, and 2329
as to removals and appointment of successors has been covered elsewhere 80
that these two sections can be omitted as sufficiently covered. See Board’s
proposed rule 34, similar in some respects to the above section.]

ARTICLE 13
ORDERS

Section 127. Definition of an order.

128. Court may make chambers order.

129. Court orders made by supreme court justice out of
court.

130. Granting orders out of court. |

131. Vacation or modification of order.

132. Vacation or modification by appellate division of
ex pane order,

§ 127. Definition of an order. A direction of a court or judge,
made[,, as prescribed in this act,]] in an action or special pro-
ceeding, must be in writing unless otherwise specified in the
particular case. Such a direction, unless it is contained in a
judgment, is an order.

«4 Sky i?
[First two sentences of Code § 767. See similar provision in Board rule 35.]

§ 128. Court may make chambers order. ' [Except in’ the
first judicial department] An order which is authorized by statute
to be made at chambers may be made by the court.

[Code § 768, fourth sentence, with the present limitation excepting the first
department removed. ]

§ 129..Court orders made by supreme court justice out of
court. An order made by a justice of the supreme. court, out
of court, shall not be void on the ground that a statute or rule,
Crvit Practice Act 119

im terms or in effect, requires the motion therefor to be made to,
or authorizes the order to be made only by, such court, unless the
order be made outside of a county or judicial district in which
an application to the court for such order is authorized.

[New. This section perinits a justice uf the supreme court, out of court,
to make a “court” order. The section is not intended, however, to give a
county judge the power to make a “court” order in a supreme court action.
The section will practically abolish the distinction between “court” and
“ judges’ ” orders in the supreme court when made by supreme court justices.]

§ 130. Granting orders out of court. 7, An order in an
action or spectal proceeding in a county court which a county
judge may make out of court may be made without notice (except
an order to stay proceedings which may be made only upon notice)
by a justice of the supreme court, or by the county judge of any
other county.

2. Where an order, in an action im any other court, may be
made by a judge of the court, out of court, and without notice, and
the particular judge is not specially designated by law, it may be
made by any judge of the court in any part of the state; or, except
to stay proceedings after verdict, report or decision, by a justice
of the supreme court, or by the county judge of the county where
the action is triable or in which the attorney for the applicant
- resides. [Where such an order grants a provisional remedy, it
can be vacated only in the mode specially prescribed by law; in
any other case, it may be vacated or modified, without notice, by
the judge who made it, or, upon notice, by him, or by the court.]

[Subd. 1 is new. See Code § 354, omitted as covered by subd. 1. See also
first sentence of Board rule 39. Subd. 2 is Code § 772, except last sentence
which is omitted here and covered under “ vacating orders.” The words “in
any other court” are inserted to exclude orders in a county court action

which a county judge may grant out of court and which are covered by
subd. 1. Code § 773, omitted as unnecessary. ]

§ 131. Vacation or modification of order. Where such an
order grants a provisional remedy, it can be vacated only in the
mode specially prescribed by law; in any other case, it may be
vacated or modified, without notice, by the judge who made it, or,
‘upon notice, by him, or by the court.

[Code § 772, last sentence. See Board’s rule 42.]
124 Report or Jornt Leatsrative ‘ComMitree
§ 132. Vacation or modification by appellate division of
ex-parte order. The appellate division shall have power to
vacate or modify, without notice, or upon such notice ‘as it shall
deem proper, any order in an action or special proceeding made
by a justice of the supreme court or by the court without notice
to the adverse party.

[Code § 1348, first clause of second sentence, without change. Included’ by
Board i in Judiciary Law, 8 118.) / :

ARTICLE 14 : oS
PAYMENT INTO AND OUT OF COURT

Section 133. Party bringing money into court is discharged.
134, Payment into court.
135. Title to court funds.
186. Disposition of court funds.’
“187. Funds or property not to be surrendered without
, order, i“

§ 133. Party beinging money into court is = ipseharged: A
party bringing money into court pursuant to the direction of the
court is discharged thereby from all further liability to the extent
of the money so paid in.

[Code §'743, without change. Included by Board in Civil Rights Law, §'207.
‘Section 168 of the County Law provides that a county clerk shall keep.a regis-
_ter of court and trust funds. The section applies to funds deposited with the
chamberlain of the city of New York for the counties of New York, Queens
and Richmond. Section 744a of Code relating to the power of the state comp-
troller to examine books, etc., of depositaries of court funds, has been included
by the Committee in State Finance Law, § 44a.]

§ 134. Payment into court. All moneys and securities paid,
transferred, or deposited into court, must be paid or transferred,
either directly or by the officer sale is réquired by law first to
receive it, to the county treasurer of the county where the action
is triable or to such other county treasurer as ‘the court specially
directs. Where money is paid or a security is delivered to an
officer other than the county treasurer, he must pay or transfer it
to the county treasurer within two days after he receives it. In the
city of New York he must pay it to the chamberlain within two
Civit Practice Act 121

days afterthe receives it. A bond, mortgage or other security, or
a. certificate or transfer of stock, taken upon the investment of
money paid into court, must be taken to: the county treasurer of the
county where the fund belongs, in his name of office, or to such
other county treasurer .as the court specially directs.

[Code § 745, Without change. Board Rule 47.]

§ 135. Title to court funds. A county treasurer or other
officer, or a guardian, committee, or other trustee, in whose name
is tuken a hond, mortgage, public stock, or other security[, or
public stock, representing money paid into court in an action,
or to whom stock or a security, or an account, deed, voucher,
receipt or other paper, representing or relating to sunk money,
is transferred, delivered, made or given, pursuant to law, is vested
with title for the purposes of the trust, and may bring an action
upon or in relation to the same, in his official or representative
character. |

[Code § 749, without change of substance. The Board included the section
in Civil Rights Law, § 240.]

§ 136. Disposition of court funds. Each court of record may
direct that money paid into that court in any action or pro-
ceeding brought therein, or any bond, mortgage or other security
which represents property belonging to any suit or party
interested therein, may, after having been deposited with the
county treasurer or city chamberlain. fag required by section seven
hundred and forty-five of this act], be paid out, transferred,
invested or reinvested in any manner or form that appears to it
best for the interests of the owners thereof. [But] Such direc-
tions must be embodied in an order or decree of such [said] court,
founded upon proper and sufficient evidence satisfactory to the
court that such disposition of the property is best for the interests
of the owners thereof or parties interested therein. When the
whole of an original deposit of money, or the whole of a distrihu-
tive share ther eo, or any security or other property, is directed to
be paid or transferred out‘of court, the order must direct the pay-
ment of all accrued interest or other income belonging to the party
or parties to whom [said] such deposit or distributive share or
sectirity i is ordered to be paid, transferred or delivered.

[Code §§ 747 and 748, _without change of substance, Board Rule 49.]
122 Reporr or Joint Leqisuative ComMitTEeE

§ 137. Funds or property not to be surrendered without
order. No money, security or other property which shall have
been placed in the custody of the court shall be surrendered
without the production of a properly certified copy of an order of
the court in whose custody said money, security or other property
shall have been placed, duly made and entered, directing such dis-
position. Each order must be countersigned by the [presiding]
judge by whose direction it is entered [made].

[Code § 751, without change of substance. Included by Board in Rule 49.]

ARTICLE 15
PREFERENCES

Section 138. Preferences among civil actions.
139. Preference of certain actions by the people.
140, Preferenee of mandamus or prohibition orders in
appellate courts.
141. Manner of obtaining preference.
142. Preference, of second. and: subsequent appeals to
court of appeals.
143. Preference in hearing of appeals when title to pub-
lic office involved.

§ 138. Preferences among civil actions. Civil causes are
entitled to preference. among themselves, in the trial or hearing
thereof, in the following order, next after the causes specified in
ce last] section [but one] hundr ed and thirty-nine:

An action or special proceeding brought by or against the
oo of the state, or brought by the pearle of the state on the
relation of a party, or brought by or against any state officer or
board of state officers as such; where the attorney of the said
people, state officer or board of state officers or attorney for the
plaintiffs:in such action or special proceeding has given notice.
at the time of the service of the notice of trial or argument, of
the particular day in the term at which he will move it. If the
action or special proceeding is not moved by said attorney for
trial or argument on that dav, or as soon thereafter in the same
term as the court can hear it, the other party may then move
the trial or argument; otherwise it shall not be moved out of its
order at that term except by the special order of the court.
Crviz Practice Act 123

2. An action ‘or special proceeding in which The City of New
York[, or a board of officers, exercising powers conferred by a
statute for the protection of public health or public or private
property, or for the prevention or punishment of violations of a
statute relating to either of those subjects, or the commissioners of
pilots in The City of New York, are parties;] ts @ party, where a
notice similar to the notice prescribed in the last subdivision has
been served by [their] its attorney at the time of service of the
notice of trial or argument. The provisions of the last subdivision,
relating to moving the trial or argument, apply to a cause within
this subdivision.

8. An action or special proceeding in which [the city of New
York, or] a board of officers, exercising powers conferred by a
statute for the protection of public health or public or private
property, or for the prevention or punishment of violations of a
statute relating to either of those subjects, are parties; where
a notice similar to the notice prescribed in [the last] subdivision
one has been served by their attorney at the time of the service
of the notice of trial or argument. The provisions of [the last]
subdivision one, relating to moving the trial or argument, apply
to a cause within this subdivision.

[3}4. In the court of appeals or the supreme court, an appeal
taken by either party in an action or special proceeding other
than as specified in subdivision [first] one of this section, where
the people of the state, or a board of state officers, are sole parties,
or a state officer is sole party, plaintiff or defendant.

[8a]5. In the court of appeals or the supreme court, on motion
of the appellant, an appeal taken by either party in an action or
special proceeding from a judgment or order declaring a legis-
lative enactment unconstitutional[[, is entitled on motion of the
appellant, to a preference over any business irrespective of its
place upon the calendar, except as to preferences provided for in
sections seven hundred eighty-nine, seven hundred ninety and the
preceding subdivisions of this section].

[4]6. In the court of appeals, an action, a party to which has
died, pending the action, where the pendency of the action pre-
vents.a final settlement of the estate of the-deceased partv.

[5]7. In any court, an action or special proceeding in which
an executor or an. administrator, or testamentary trustee, or an
infant. or a trustee of a fund for the support and maintenance of
an infant, or a receiver appointed by the court, or by the comp-
troller of the currency of the United States, or a trustee in
194 Report or Jornt LeaisLtative CoMMITTEE

bankruptcy, or a general assignee for the benefit of creditors, ‘or
the committee of a lunatic or an idiot, or a creditor of a deceased
insolvent debtor suing for the benefit of himself and other creditors
interested in the estate or property of such deceased debtor where
a tight of action is given by express provision of law, is the sole.
plaintiff or sole defendant; an action or special proceeding for the
construction of, or an adjudication upon or to determine the valid-.
ity of the probate of a will, in-which the administrator with the
will annexed, or the executor of the will, is joined as plaintiff
or defendant with one or more other parties[[, and an appeal from
the judgments or decision in any of the foregoing actions or pro-
ceedings and}. .

- &. In the court ‘of appeals or the supreme court, an appeal frony
the decree or decision of a surrogate’s court determining a will to
be valid and admitting it to probate, or determining an instrument.
offered for probate as a will to be invalid or not entitled to probate
as such, or granting general letters of administration or directing
the distribution of a fund or payment of money by an executor
or an administrator in pursuance of an order or decree made on
an intermediate, final.or judicial ee or otherwise by an
administrator or an executor.

‘2699. An action for: dower where the: plaintiff makes proof by
affidavit to the satisfaction of the court or a judge thereof that
she has no sufficient: means of support aside from the estate in
controversy[, an action for the partition of real property].

10. An action for the partition of real property.

. [7]i7. An action against a. corporation or joint-stock associa-
tion, issuing bank notes or any kind of. paper eredits, to circulate
as monev; or by or against a receiver of such a corporation or
association[[: an action in which a county or town is sole plaintiff
or defendant].

12. An action in es a-county or town is sole pinta or
defendant, it

[s8}/3. An action against a corporation, founded upon a note
or other evidence of debt for the absolute payment of money.
[An action upon an undertaking given upon an appeal to the
court of apveals or to stay the execution on an appeal to the court
of appeals. ]

14. An action upon an undertaking given upon an appeal to
the court of appeals or to stay the execution on an appeal to ue
court of appeals
Crytt Practice Act 195

(925. In an action against a sheriff in his official capacity, or
an action by a sheriff or late sheriff, to recover for a breach of
the obligation of a bond or bonds, or an instrument or instruments
ot indemnity, or an undertaking or undertakings given to him in
his official capacity. . )

[116. [in any court] An action for libel or slander.

([12]17. In the court of appeals, all appeals from judgments of
-affirmance rendered by the appellate division of the supreme court
[in cases enumerated in subdivision two of section one hundred
and ninety-one of this act,] where the decision of the appellate
division has been unanimous and an appeal wpon a question of
law has been taken upon a certificate of the appellate division or
‘allowed [as in said subdivision of said section provided] by the
court of appeals.

[13]18. An action for absolute divorce in which an order has
been made granting temporary alimony.

19. Any action whenever an issue shall have been joined, if the
defendant be imprisoned under an order of arrest in the action
or if the property of the defendant be held under attachment.

_ [[10920. A cause entitled to preference by the general rules of
practice or by the special order of the court, in the particular ease.

Where an issue of law and an issue of fact, or two or more other
questions of different natures, come before the same term of the
court for trial or hearing, the preferencé given by this. section
affects only the order in which the issues or questions of the same
nature are to be disposed of.

[Code § 791, except subd. 19 which is General Rule of Practice 36, part.
Section 791 has been disposed of as follows: Subd. 1 is made new subd. 1,
without change. Subd. 2 as to New York City actions is new subd. 2; part
of subd. 2 relating to actions by certain boards is made new subd. 3; part of
subd. 2 relating to commissioners of pilots of New York has been omitted as
unnecessary; subds. 3, 3a, and 4, become new subds. 4, 5, and 6, without
change, except the omission of the last part of former subd. 3a, as unnecessary
in view of the language of Code §§ 789, 790; subd. 5, first part, is made new
subd. 7, without change except as to the bracketed matter omitted as unneces-
sary; subd. 5, last part is made new subd. 8; bracketed matter in new subd. 7

is omitted as unnecessary and inconsistent; subd. 6, first part is made new

subd. 9 and last part is made new subd. 10; subd. 7, first part is made new
subd. 11, and last part is new subd. 12; subd. 8, first sentence is new subd. 13,
and last sentence is new subd. 14; subds. 9, 11, 12 and 13, are made new
subds. 15, 16, 17 and 18, without change of substance; subd. 10 is made new
subd. 20; General Rule of Practice 36, part is included as new subd. 19. Last
paragraph of § 791 is made last paragraph of new section. All of Code
8 791 omitted by Board as sufficiently covered by its proposed Rule 252.]
196 Report or Jowr Learstative Comeirint

§ 139. Preference of certain actions by the people. A trial,
motion, appeal or hearing, in an action by the people to recover
money, funds, credits or other property, held or owned by the
state or held or owned, officially or otherwise, for, or in. behalf
of, a public or governmental interest, by a municipal or other
public corporation, or by a board,’ officer, custodian, agency or
agent of the state, or of a city, county, town, village or other
division, subdivision, department. or portion of the state, which
‘the defendant [has], without right, has obtained, received, con-
verted or disposed of; or to recover damages, or other compensa-
tion, for so obtaining, receiving, paying, converting or disposing
of the same; or the aiding or abetting thereof; is entitled, on the
application ae the attorney-general,, to a preference over-any other
business at a term or sitting of any court of the state, irrespective
of its place upon the calendar. © é %

h

[Code § 789, without change.’ Omitted’ by Board as sufficiently covered by
its proposed Rule 252.] :

§ 140. Preference of mandamus or prohibition orders in
appellate courts. Where a [writ of] mandamus order or [of]
a prohibition.order has been: issued from the appellate division
of the supreme court, to a special term, or a judge of the same
court, the cause [may], in the discretion of the court, or, where
an appeal is taken therein to the court of appeals, in the dis-
eretion of that court, may be preferred over any of the causes
specified in [the last] section one hundred and thirty-eight.

[Code § 792, amended to agree with new practice wherein “writs ” of

mandamus and prohibition are abolished and “ orders ” substituted. Omitted
by the Board as sufficiently covered by its proposed Rule 252.]

§ 141. Manner of obtaining preference. 7. Where the right
to a preference depends upon’ facts which do not appear in the
pleadings or other papers upon which the cause is to be tried
or heard, the party desiring a preference must procure an order
therefor from the court, or a judge. thereof, upon notice to the
adverse party. A copy of the order must be served with or before
the notice of trial or argument. Such an order is not appealable,
but it may be vacated by the judge or judges holding the term at
which the preferred cause is noticed for trial or co or by
such other justice, or at such other term of court, or at such other
time as shall be prescribed’ by the general or special rules of prac-
tice. But a preliminary order is not requisite in a case ‘embraced
Crvin Practior Act: a $99

within subdivision [first or second] one, two or three of [the
last] section [but one] one hundred and thirty-eight, and the
order in a case embraced within subdivision [six] nine thereof
may be made ex parte, and is conclusive.

2, Where no order is required, a claim for preference, specify-
ing the provision. of law under which the claim is made, may be
inserted in the note of issue to be filed with the clerk, and it. shall
then be the duty of such clerk to place such cause in its proper
.place among the preferred causes at the head of the calendar;
except [that] as prouided in the next subdivision.

3. In the counties of New York, Bronx, Kings, Queens and
Erie, and the seventh judicial district, no action or special pro-
ceeding shall be placed as a preferred cause upon the calendar of
any circuit court or trial term or special term of any court as
herein provided, but the party desiring a preference of any cause
shall serve upon the opposite party, with his notice of trial, a notice
that an application will be made tothe court at the opening thereof,
or to such justice or other term of court or at such other time as
shall be prescribed by the general or special rules of practice, for
leave to move the same as a preferred cause, and if the right to a
preference depends upon facts which do’ not appear in the plead-
-ings or other papers upon which the case is to be tried the notice
must be accompanied by an affidavit showing such facts. In said
counties of New York, Bronx, Kings, Queens and Erie and in the
seventh judicial district, the application for a preference shall be
made at the opening of the court, or to such justices or other term
of court, or at such other time as shall be prescribed by the general
or sreaal rules of practice, and if it shall appear that the cause
is entitled to a preference and is intended to be moved for trial
at or for the term for which the application is made, the court or
justice must designate a day certain, during that term, on which
day the said cause shall then be heard; if there be two or more
causes so designated for trial for the same day, the said causes
shall be heard in the order of their date of issue.

[Code §.793, without change except that the section has been subdivided.
Omitted by the Board as sufficiently covered by its proposed Rule 252.]

§ 142. Preference of second and subsequent appeals to
court of appeals. Upon a second and each subsequent appeal
to the court of appeals, including a case where a former appeal has
been dismissed for a defect or irregularity, the time of filing the
. : rm ms
138 Report or Jor Leatstative Commirrié

return upon the first-appeal delemitnes the place nt the cause upon
the calendar. g .

[Code § 195, wAthout change. Omitted by the Board ‘as sufficiently caves
by its t proposed Rule 366.] , = 7
iy

§ 143. Preference in hearing of appeals when title to public
office involved. An appeal from a judgment or [decrec] order
in any ease in which the question of the title to a public office is
directly or collaterally at issue or in ‘any manner involved, may be
placed on the calendar and noticed for hearing on any day in the
appellate division of the supreme court in the first department,
or in the court of appéals, and shall be heard on said any

[Code § 229, ‘without change. Omitted by the Board 2 as sufficiently covered
by its proposed Rule 252.] a a SS

ARTICLE 16
PUBLICATION

Section, 144. Time for pantheon, of notice ; how computed. |
- 145. Publication in another county or city.
146. Publication where printers in county refuse, to pub
ox ish owed eco
147. “Affidavit of refusal io nabligh, : ead

§ 14, Time for “aubbeation of ‘notice; how computed. The
period of publication. of a legal. notice in an action or special
proceeding brought. in, a, court, either of record or not, of record,
or before.a ‘judge of such a court, must be computed so as to
exclude the first day of publication and include the day on which
the act or event of which notice is given is to happen, or which
completes the’ full period of publication.

[Code § 787, without change. ]

§ 145. Publication in another county or city. 1. Where
a notice or other proceeding is required by law to he published
in a newspaper published in a, county, and no newspaper is pub-
lished therein, or to be published oftener than. any new spaper
is regularly published therein, the publication may he rhade in ‘a

newspaper of an adjoining county, except where epectil provision
is otherwise made by law.
Crvit Pracrice Act 129

‘2. Where a notice or other proceeding is required by law to be
published in a newspaper in a county which contains a city having
no newspaper, or to be published in a newspaper in such city, the
publication, if so required to be made in the county, may be made
either in the county or in a city, outside the county, adjoining such
city in which no newspaper is published; or, if so required to be
made in the city in which no newspaper is published, the publica-
tion may be made in such adjoining city of another county.

[Code § 826, without change. See Board Rule 215, subd. 9.]

§ 146. Publication where printers in county refuse to
publish. Jf the proprietor of each newspaper, published in a
city or county, in which any notice, order, citation or other paper
is required by law to be published, refuses to publish the same
for the fees prescribed by law for the publication, it may be pub-
lished in the newspaper printed at Albany in which legal notices
are required by law to be published. If it is required by law
to be published in that newspaper, and also in another newspaper
published in a city or county, and the proprietor of each news-
paper in that city or county refuses to publish it for the fees
so prescribed, it may be published in the newspaper published
nearest to the place where a person is required to appear or where
an act is to be done, pursuant thereto, the proprietor of which
will publish the same for those fees. Publication, made as pre-
scribed in this section, is as valid as if it was made in the city
or county where the publication thereof is so required by law.

[Code § 3293. See Board’s proposed Rule 215, subd. 9, providing that
where publication in a specified newspaper cannot be made as provided by law,
the court or a judge may designate another newspaper for such publication.]

§ 147. Affidavit of refusal to publish. Where publication
is made, as prescribed in the last section, elsewhere than in the
city or county where it is otherwise required by law to be made,
the affidavit of publication must either be accompanied with an
affidavit, or contain a statement, to the effect that an application
to publish the advertisement was, before such publication, made
to the proprietor of each newspaper published in the city or
county; that the amount of the legal fees for such publication
was at the same time tendered; and that the application was
refused. Such an affidavit is presumptive evidence of the facts
stated therein.

[Code § 3294. Board included first sentence in its proposed Rule 219,
subd. 7, and last sentence in its proposed Evidence Law, § 97.]

5
130 Report or Joint LecisLaTIvE CoMMITTEE

ARTICLE 17
SECURITY

Section 148. Condition; effect of change of parties.

149 Additional security.

150. Substantial compliance as to form; amendment.

151. Justification.

152. Justification of several sureties in smaller sum.

153 Deposit to protect surety.

154. Security for infant or incompetent.

155. Security for the people.

156. Surety company bond or undertaking.

157. United States bonds in lieu of cash bail.

158. Discharge of surety.

159. Action on bond or undertaking to people or public
officer.

160. Action upon a penal bond.

161. Limitation as to action upon undertaking on appeal.

162. Security by people, municipal corporation or public
officer.

§ 148. Condition; effect of change of parties. Unless other-
wise provided by statute or rule, whenever a bond or undertaking
is required in a civil action or special proceeding, it shall be to
the effect that the principal shall faithfully and fairly discharge
the duties and fulfill the obligations imposed by law or rules and
the special order of the court. A bond or undertaking given in
an action or special proceeding[[, as prescribed in this act, con-
tinues in force after [the substitution of a new party in place
of an original party, or any other] a change of parties; and
has thereafter the same force and effect as if then given anew in
conformity to the change of parties.

[Code § 815, amended. The first sentence is new, from Board Rule 51.]

§ 149. Additional security. Where a bond or an undertaking
has been o1 shall be given in an action or a proceeding, further
or other security may be ordered in addition to such security.
Upon cause shown an examination or re-examination of any
surety upon any such undertaking may be ordered and upon such
eyamination or re-examination, a new surety or sureties may be
Civit Pracrice Act 131

required to be furnished or further or other security to be given
in addition to the security already given. Such order may be
enforced by any disposition of the action or proceeding as may be
proper. In the case of an undertaking upon an appeal, the
order may be made only by the court in which the appeal is pend-
ing, except that if the undertaking be given to stay execution on
a judgment for a sum of money or a judgment or order directing
the payment of a sum of money, from which an appeal is taken
to the court of appeals the order may be made only by the court
below.

[Code §§ 813a, 13808 and 1327, last two sentences, rewritten without change
of substance. ]

§ 150. Substantial compliance as to form; amendment.
A bond or undertaking in an action or special proceeding [required
by statute to be given by a person, to entitle him to a right or
privilege, or to take a proceeding, } is sufficient if it conforms sub-
stantially to the form therefor prescribed by the statute or rule
and does not vary therefrom to the prejudice of the rights of the
party to whom or for whose benefit it is given.

Where such a bond or undertaking is defective, the court, officer
or body that would be authorized to receive it, or to entertain a
proceeding in consequence thereof, if it was perfect, may amend
it accordingly, on the application of the persons who executed
itl, amend it accordingly]; and it shall thereupon be valid from
the time of its execution.

[Code §§ 729, 730, combined without change of substance. Covered by Board
Rule 54.]

§ 151. Justification. [It is not necessary that the under.
taking should be approved; but the attorney for the respond-
ent] Where a party desires to except to the sufficiency of the
sureties to a bond or undertaking in an action or special proceed-
mg, he may serve a written notice, within ten days after the
service of a copy of the bond or undertaking, [with notice of the
filing thereof, serve upon the attorney for the applicant, a writ-
ten notice] that he excepts to the sufficiency of the sureties.
Within ten days thereafter, the sureties, or other sureties in
a new bond or undertaking to the same effect, must justify
before the court in which the action or proceeding is pending
[below,] or a judge thereof, or a referee appointed by the same. or
a county judge. At least fi ¢ auys’ notice of the justification
132 Report oF Jornt Lzoistative CommirrEee

must be given. A referee may be appointed upon the motion
of either party or upon the court’s own motion to take the
justification of such sureties and to report the evidence upon
the same to the court or judge with his opinion. The court
may further direct that either party shall pay the expenses of
such reference. If the court or judge finds the sureties
sufficient, he must indorse his allowance of them upon the bond
or undertaking or a copy thereof, and a notice of the allowance
must be served upon the attorney for the exceptant. The
effect of a failure so to justify and procure an allowance is the
same as if the bond or undertaking had not been given. The court
shall also have power, in case it shall be made to appear to its
satisfaction, upon motion, that the exception was taken unneces-
sarily or for purposes of vexation or delay, to set the same aside
and approve the bond or undertaking, with costs.

[Code § 1335, applicable to undertaking on appeal to the court of appeals,
extended, as amended, to bonds and undertakings generally in actions or spe-
cial proceedings. Included by Board in Rule 55.]

§ 152. Justification of several sureties in smaller sum.

[But] Where the penalty of the bond, or twice the sum specified
in the undertaking, is five thousand dollars or upwards, the court
or judge [may], in its or his discretion, may allow the sum in
which a surety is required to justify to be made up by the justiti-
cation of two or more sureties each in a smaller sum. But in
that case'a surety cannot justify in a sum less than five thousand
dollars, and when two or more sureties are required by law or
rule to justify the same person cannot so contribute to make up
the sum for more than one of them.

[Code § 813, first sentence. Included by Board in Rule 35.]

§ 153. Deposit to protect surety. [It shall be lawful
for any] A party of whom a bond or undertaking is required
[to] may agree with his sureties for the deposit of any or all
moneys for which such sureties are or may be held responsible,
with a trust company authorized by law to receive deposits, if such
deposit is otherwise proper, and for the safe-keeping of any or all
other depositable assets for which such sureties may be held respon-
sible, with a safe-deposit company authorized by law to do business
as such, in such a manner as to prevent the withdrawal of such
Civin Practice Act 133

moneys and: assets or any part thereof, except with the written
consent of such sureties, or an order of the court made on such
notice to them as it may direct.

[Code § 813, last sentence, without change of substance. Included by Board
in Rule 56.]

§ 154. Security for infant or incompetent. Where in the
course of an action or proceeding security shall be required for
protecting the interests of an infant, lunatic, idiot or habitual
drunkard zt shall be in the form of a bond of an approved surety
company, or the bond of individuals secured by an approved mort-
gage on real estate, in an amount double that of the property
imvolved, including the interest or income during the menority
of the infant or during the incompetency as the case may be, and
approved as to form and sureties by the court in which the action
or proceeding is pending or by a judge thereof. Upon a breach
of the conlition of Fa any such bond, [given as prescribed in
either of the last two sections,] the court must direct it to be
proseented for the benefit of the person injured.

[See Board Rule 57. The Board states in Note 123, that the rule is new.
See General Rule of Practice 51 as to bond of guardian ad litem of infant, and
Rules 54 and 57 as to bonds of general and special guardians. The last sen-
tence is Code § 2353, now applicable to bonds mentioned in Code §§ 2351 and

2352, bonds of committees of lunatics and other incompetents, and also bonds
of guardians of infants in proceedings to dispose of infants’ real estate.]

§ 155. Security for the people. Where an action is brought
by the people for the benefit of a person having an interest in
the question. the attorney-general, as a condition of bringing the
action, shall require the relator to give satisfactory security to
indemnify the people against the costs and expenses thereof.

[Board Rule 58. Code § 1986, second sentence, in substance.]

§ 156. Surety company bond or undertaking. [Where
a provision of this act requires a bond or undertaking, with sure-
ties, to be given by, or in behalf of, a party or other person, he need
not join with the sureties in the execution thereof, unless the pro-
vision requires him to execute the same; and the execution thereof
by one surety is sufficient, although the word “ sureties,” is used,
unless the provision expressly requires two or more sureties: and]
The execution of any [such] bond or undertaking, zn an action or
134 Rervorr or Joint Leaisitative ComMMIrrEr

special proceeding, by a [any] fidelity or surety company aut
ized by the laws of this state to transact business, shall be equ
lent to the execution of said bond or undertaking by two sure
and such company, if excepted to, shall justify through its offi
or attorney in the manner required by law of fidelity and su
companies. Any such company may execute any such bonc
undertaking as surety by the hand of its officers, or attorney, «
authorized thereto by resolution of its board of directors, a certi
copy of which resolution, under the seal of said company, shal
filed with each bond or undertaking.

(Code § 811, in part, without change of substance. The remainder of
section is included in rules.]

§ 157. United States bonds in lieu of cash bail. Where
this act or the rules authorize or require cash bail or secur
unregistered bonds of the United States may be delivered to
proper officer or person in lieu of cash to the amount of the j
value of the bonds.

[New.]

§ 158. Discharge of surety. 1. The surety or sureties
the representatives of any surety or sureties upon the bond h
tofore or hereafter executed, of any trustee, committee, guard
assignee, receiver, executor, administrator or other fiduciary, s
be entitled as a matter of right to be, and shall be, dischar
from liability as hereinafter provided, and to that end, [may]
notice to the principal named in such bond, may apply to the ec
that accepted such bond or to the court of which the judge t
accepted such bond was a member or to any judge thereof, pray
to be relieved from liability as such surety or sureties for the
or omission of such principal occurring after the date of the oz
relieving such surety or sureties hereinafter provided fer and {
such principal be required to account and give new sureties.

2. Such notice of such application mav be served on said p
cipal personally within or without the state. [or,] not less t
five days prior to the date on which such application is to be mé
unless it satisfactorily appears to the court. or a judge ther:
that personal notice cannot be given with due diligence within
state, in which case notice may be given in such manner as
court or a judge thereof directs. Pending the hearing of s
Crvit Practice Act 135

application the court or judge may restrain such principal from
acting exvept to preserve the trust estate until further order.

8. Upon the hearing of such application, if the principal does
not file a new bond in the usual form to the satisfaction of the
court or judge, the court or judge must make an order requiring
the principal to file a new bond within such reasonable time not
exceeding five days as the court or judge in such order fixes. If
such new bond shall be filed upon such hearing or within the time
fixed by said order, the court or judge must thereupon make a
decree or order requiring the principal to account for all his acts
and proceedings to and including the date of such order or to file
such account within a time fixed, not exceeding twenty days, and
releasing the surety or sureties making such application from lia-
bility upon the bond for any act or default of the principal, subse-
quent to the date of such decree or order. If the principal fail so
to file such new bond within the time specified, a decree or order
must be made revoking the appointment of such principal or
removing him and requiring him to so account and file such
account within twenty days.

J. If the principal fail to file his account as in this section
provided, such surety or sureties, or representatives thereof, may
make and file such account with like force and effect as though
made arid filed by such principal, and upon the settlement thereof
eredit shall be given for all commissions, costs, disbursements,
and allowances to which the principal would be entitled were he
accounting, and allowance shall be made to such surety or sureties
or representative for the expense incurred in so filing such account
and procuring the settlement thereof. [And]

5. After the filing of an account as required or permitted in
this section, the court or judge [must], upon the petition of the
principal or surety or sureties or the representatives of any such
surety or sureties, must issue an order requiring all persons
interested in the estate or trust funds to attend a settlement of
such account at a time and place therein specified, and upon
the trust fund or estate being found or made good and paid over
or properly secured, the surety or sureties shall be discharged
from any and all further liability, and the court or judge shall
settle, determine and enforce the rights and liabilities of all
parties to the proceedings in like manner and to the same extent
as in actions for an accounting in the supreme court. [And]
Upon demand made in writing by the principal, such surety or
136 Report or Joint Lzea@istativE ComMITTEE

sureties, or representatives thereof, shall return any compensation
that has been paid for the unexpired portion of such suretyship.

[Code § 812, in part. Included by Board in Civil Rights Law, § 225. The
first part of the section is to be included in rules.]

§ 159. Action on bond or undertaking to people or public
officer. Where a bond or undertaking has been given as pre-
scribed by law, in the course of an action or a special proceed-
ing, to the people or to a public officer, for the benefit of a
party or other person interested, and provision is not specially
made by law for the prosecution thereof, the party or other
person so interested may maintain an action in his own name
for a breach of the condition of the bond or of the terms of the
undertaking, upon procuring an order granting him leave so to
do. [The order may be made by the court, in which the action
ig or was pending; the city court of the city of New York, or a
county court, if the bond or undertaking was given in a special
proceeding, pending before a judge of that court; or, in any other
case, by the supreme court. Notice of the application therefor
must be given, as directed by the court or judge, to the person:
interested in the disposition of the proceeds.

[Code § 814. Included by Board in Civil Rights Law, § 93. The sentence
in brackets is omitted as unnecessary. ]

§ 160. Action upon a penal bond. A bond in a penal sum,
executed within or without the state and containing a condition
to the effect that it is to be void upon performance of anv act.
has the same effect, for the purpose of maintaining an action
or special proceeding or two or more successive actions or special
proceedings thereupon, as if it contained a covenant to pay the
sum or to perform the act specified in the condition thereof. Rut
the damages to be recovered for a breach or successive breaches
of the condition, cannot exceed, in the aggregate, Lexceedy the
penal sum, except where the condition is for the payment of
money; in which ease, they cannot exceed the penal sum, with
interest thereupon from the time when the defendant made default
in the performance of the condition.

[Code § 1915, without change.]

§ 161. Limitation as to action upon undertaking on appeal.
An action shall not be maintained upon an undertaking given
upon an appeal, taken as prescribed [[in title third, fourth or fifth
of this chapter,] for appeals to the supreme court from infertor
Civit Practice Act 187

courts, to the appellate division of the supreme court and from
determinations in special proceedings until ten days have expired,
since the service upon the attorney for the appellant and upon the
sureties on such undertaking, of a written notice of the entry of a
judgment or order affirming the judgment or order appealed from
or dismissing the appeal. Such service may be made by mailing
such notice in a postpaid wrapper addressed to said surety or
sureties at the last known post-office address of such surety or
sureties. Where an appeal to the court of appeals from that judg-
ment or order is perfected, and security is given thereupon to stay
the execution of the judgment or order appealed from, an action
shall not be maintained upon the undertaking given upon the pre-
ceding appeal until after the final determination of the appeal to
the court of appeals.

[Code § 1309. New matter covers references omitted. See Board’s pro-
posed Civil Rights Law, §§ 89, 90, identical.]

§ 162. Security by people, municipal corporation or public
officer. Each provision of [this act] statute or rule requiring
a party to give security for the purpose of procuring an order of
arrest, an injunction order, or a warrant of attachment, or as a
condition of obtaining any other relief, or taking any proceeding;
or allowing the court or a judge to require such security to be
given, is to be construed as excluding an action brought by the
people of the state, or by a domestic municipal corporation; or
by a public officer, in behalf of the people or of such a corporation ;
except where the security to be given in such an action is specially
regulated by the provision in question[,, J.

[Code § 1990, part, without change of substance. Included by Board in
General Municipal Law, § 2e, improperly, for the section applies to actions by

the people as well as by municipal corporations. Last part of § 1990 is
covered under Provisional Remedies.]

ARTICLE 18
SERVICE OF PAPERS

Section 163. Service upon attorney.
164. Service through post office.
165. Access to prisoner for purpose of serving personally.
166. Delivery to prisoner of paper served on officer.

§ 163. Service upon attorney. Where a party has appeared,
a notice or other paper required to be served in an action must
138 Report oF Jornt Leaisuative ComMiItTEE

be served upon his attorney. If a defendant has not appeared,
service of a notice or other paper in the ordinary proceedings in
an action need not be made upon him, unless he is actually con-
fined in jail for want of bail. This [article, except the last]
section does not apply to the service of a summons or other process,
or of a paper to bring a party into contempt; or to a case where
the mode of service is specially prescribed by law.

[First sentence is Code § 799. Last sentence is Code § 802. See Board’s
proposed Rule 60.]

§ 164. Service through post-office. Where it is prescribed
by statute [in this act] or in the general rules of practice that a
notice must be given or a paper must be served, within a specified
time before an act is to be done; or that the adverse party has a
specified time after notice or service within which to do an act;
if service is made through the post-office, pursuant to statute or
rule, three days shall be added to the time specified, except that
service of notice of trial may be made through the post-office not
less than sixteen days before the day of trial, including day of
service. Deposit in a branch post-office is equivalent to deposit
in a general post-office.:

[The first sentence is Code § 798, without change of substance. The last

sentence is Code § 801 in substance, now applicable only to New York City.
extended generally. Included by Board in Rule 62.]

§ 165. Access to prisoner for purpose of serving person-
ally. Subject to reasonable regulations, which the sheriff may
establish for that purpose, a sheriff, jailor or other officer who has
the custody of a prisoner must permit such access to him as is
necessary, for the personal service of a paper in an action or
special proceeding to which the prisoner is a party and which
must be personally served.

[Code § 132. Present section applies only to civil prisoners, by Code § 3347,

subd. 1. Proposed section covers all prisoners. See Werckman v. Werckman,
4 Civ. Pro. 146. Included by Board in Prison Law, § 22.]

§ 166. Delivery to prisoner of papers served on officer.
A sheriff or jailer upon whom a paper, in an action or special
proceeding, directed to a prisoner in his custody, is lawfully
served, or to whom such a paper is delivered for a prisoner, must
[within two days thereafter,] deliver the same to the prisoner
Crvin PRAcTICE AoT 139

within two days thereafter, with a note thereon of the time of the
service thereof upon or the receipt thereof hy him. For a neglect
or violation of this section, the sheriff or jailer guilty thereof is
liable to the prisoner for all damage occasioned thereby.

[Code § 131. See note to preceding section. Included by Board in County
Law, §§ 186d, 186e.]

ARTICLE 19
STAY

Section 167. Stay generally.
168. Stay upon application for removal of action from
county to supreme court.
169. When stay of proceedings not to exceed twenty
days.

§ 167. Stay generally. Except as otherwise provided the court
in which an action or proceeding is pending, or a judge of such
court, in a proper case may grant a stay of proceedings upon such
terms as to notice, security or otherwise, as may be just.

[See Board Rule 64. See Code § 805, last clause, omitted as covered.]

§ 168. Stay upon application for removal of action from
county to supreme court. An order to stay proceedings for
the purpose of affording an opportunity to make [the] applica-
tion for removal of an action from the county court to the supreme
court may be made by the county judge, or by a judge authorized
to make such an order in the supreme court, and with like effect
and under like circumstances.

[Code § 345, without change of substance.]

§ 169. When stay of proceedings not to exceed twenty
days. An order to stay proceedings in an action for a longer time
than twenty days shall not be made by a judge out of court, except
to stay proceedings under an order or judgment appealed from, or
where it is made upon notice of the application to the adverse
party, or in cases where special provision is otherwise made by law.

[Code § 775, without change. The Board states that Rule 64 covers this
section.]
140 Reposr or Jomr Lagwiative Commirrer

ARTICLE 20
STIPULATION

Section 170. Stipulation in lieu of certification.

§ 170. Stipulation in lieu of certification. Where
attorneys for all the parties interested, other than parties
default or against whom a judgment or a final order has been tal
and has not been appealed, stipulate in writing that a paper i
copy of a paper whereof a certified copy is required by law
rules, the stipulation shall take the place of a certificate, as
the parties so stipulating, and the clerk shall not be required
certify the same or be entitled to any fee therefor, and the paj
so proved by stipulation shall be received, used and filed with
same effect as if certified.

[Board Rule 66, covering last two sentences of Code § 3301, with
change of substance.]

ARTICLE 21
TENDER AND OFFER

Section 171. Tender after suit.

172. Amount to be paid into court.

1738. Effect of tender.

174. Tender on counterclaim.

175. Offer to liquidate damages conditionally.

176. Effect of refusal of offer.

177. Defendant’s offer to compromise; proceedii
thereon.

178. Plaintiff’s offer to compromise counterclaim; f
ceedings thereon.

179. Offer and acceptance; by whom subscribed.

[Code §§ 731-734 provide for a tender of money after suit brought
for payment into court in case of refusal to accept the tender. The Bc
omitted these sections except as to actions for foreclosure and_ act:
founded on nonpayment of rent. See Board Rule 70 and note 136.
“offer of judgment” now covered by Code §§ 738-740, was retained hy
Board in its Rules 72 and 73. Under the Board’s rules there is no provi
for the tender of a definite sum of actual cash. In the opinion of the Bc
the retention of the provisions relating to offer of judgment and tende
cash was “a duplication of methods for securing the same result.” W
this is true to w certain extent the Committee feels that the two met]
of endeavoring to secure a concession and stop the litigation are in m
Civit Practice Act 141

respects different and in particular instances one method may be preferred
to the other. The Committee recommends that both methods be retained.
The sections here proposed on the subject of tender provide, however, that
in case the plaintiff accepts the defendant’s tender he cannot then proceed
with the action. The practice in New Jersey has been followed in this
respect. See N. J. Practice (1912), §§ 41-45.

Heretofore in this state when a defendant paid a sum of money into court
as a tender in an action, it has been held that “the moneys belonged to the
plaintiff from the moment of their deposit, by force of their payment into
court.” Taylor v. Brooklyn Elec. R. R. Co., 119 N. Y. 561, 563.

Resort to the present Code provisions as to. tender as construed by the
courts will seldom be had by litigants. Lhe Committee has therefore, in its
proposed sections, changed the rule that title to moneys when paid into
court as a tender vests immediately in the plaintiff. Under the Committee’s
suggestions, if a plaintiff accepts a tender he will not be permitted to con-
tinue the action and if he refuses to accept and subsequently fails to recover
judgment he will not be entitled to take out of court the moneys paid in by
defendant as a tender but if he recovers judgment the sum paid into court
shall apply on the judgment and the surplus if any will be refunded to
defendant.

‘The Committee has also extended the rule as to tender by permitting a
plaintiff to make a tender to defendant after a counterclaim has been inter-
posed in like manner and with like effect as a tender by a defendant. This
rule is taken from N. J. Practice (1912), § 44.]

§ 171. Tender after suit. Where the complaint demands
judgment for a sum of money only, and the action is brought to
recover a sum certain, or which may be reduced to certainty by
calculation, or to recover damages for a casual or involuntary
personal injury or a like injury to property, the defendant or his
attorney, [may,} at any time before the trial, may tender to the
plaintiff or his attorney such a sum of money as he conceives to
be sufficient to make amends for the injury or to pay the plaintiff’s
demand, together with the costs of the action to that time.

[Code § 731, without change. See preliminary note.]

§ 172. Amount to be paid into court. A tender made as
prescribed in the last section does not avail the defendant, unless
the money is accepted or is paid into court and notice thereof in
writing served upon the plaintiff’s attorney before the trial and
within ten days after the tender. In making such a payment into
court the defendant shall file therewith a memorandum specifying
the portion thereof deposited on account of costs. If, before the
trial and within ten days after such notice, the plaintiff takes out
the amount paid in, he accepts the tender.

[Code § 732, amended as indicated.]
142 _Rerorr or Joint Lecistative CommirtTre

§ 173. Effect of tender. If the plaintiff accept a tenc
it shall be deemed in satisfaction of the cause of action
respect of which the tender was made, and the defendant n
move for a judgment dismissing the complaint, without co
Where money constituting a tender shall have been paid into co
and not accepted,

1. If the defendant recover judgment. the money shall be p
to him;

2. If the plaintiff recover judgment, the money shall be appl
upon his judgment, and the surplus, if any, paid to the defenda:

8. If the plaintiff’s judgment exclusive of costs 1s not in exc
of the tender exclusive of the portion thereof deposited on accor
of costs, the plaintiff cannot recover costs or interest from the ti
of the tender, but must pay the defendant’s costs from that tin

4, The plaintiff’s right to costs is determined by the excess
his judgment exclusive of costs over the amount of the ten
exclusive of the amount thereof deposited on account of costs.

[New, superseding Code §§ 733, 734, and changing the effect of tender,
accordance with the N. J. Practice. See preliminary note.]

§ 174. Tender on counterclaim. A tender may be ma
by the plaintiff in respect of a counterclaim, in the same cases.
the same manner, and with the same effect as to the counterclai
as in case of a tender by a defendant on account of a demand {
payment in a complaint.

[New. See N. J. Practice (1912), § 44.]

§ 175. Offer to liquidate damages conditionally. Ip
action to recover damages for breach of a contract, the defendan
attorney may serve, with the answer [serve] upon the plaintif
attorney, a written offer that if the defendant fails in his defer
the damages may be assessed at a specified sum. If the plaint
serves notice, [that he accepts the offer,J with or before the not)
of trial, that he accepts the offer, and damages are awarded
him on the trial, they must be assessed accordingly.

[Code § 736, without change.]
§ 176. Effect of refusal of offer. If the plaintiff does »

accept the offer, he cannot prove it upon the trial. [But] If t
damages awarded to [him,] the plaintiff do not exceed the su
Crvit Practice Act 14%

offered, the defendant is entitled to recover the expenses neces-
sarily incurred by him in preparing for the trial of the question
of damages. The expenses must be ascertained and the amount
thereof determined by the judge, or the referee, [by or] before
whom the cause is tried.

{Code § 737, without change of substance.]

§ 177. Defendant’s offer to compromise; proceedings thereon.
[The] Before the trial, the defendant may[, before the trial,]
serve upon the plaintiffs attorney a written offer to allow judg-
ment to be taken against him for a sum, or property, or to the effect,
therein specified, with costs. If there be two or more defendants,
and the action can be severed, a like offer may be made by one or
more defendants against whom a separate judgment may be taken.
If the plaintiff, within ten days thereafter, serve upon the defend-
ant’s attorney a written notice that he accepts the offer, he may file
the summons, complaint, and offer, with proof of acceptance, and
thereupon the clerk must enter judgment accordingly. If notice of
acceptance be not thus given, the offer cannot be given in evidence
upon the trial; but, if the plaintiff fail to obtain a more favorable
judgment, he cannot recover costs from the time of the offer, but
must pay costs from that time.

[Code § 738, without change. See Board’s Rules 71-73.]

§ 178. Plaintiff’s offer to compromise counterclaim; proceed-
ings thereon. Where the defendant sets up a counterclaim to an
amount greater than the plaintifl’s claim, or sufficient to reduce the
plaintiff’s recovery below fifty dollars, the plaintiff may serve upon
the defendant’s attorney a written offer to allow judgment to be
taken against him for a specified sum, with costs, or against the de-
fendant for a specified sum and against the plaintiff for costs. If
the defendant, within ten days thereafter, serve upon the plaintiff’s
attorney notice that he accepts the offer, either party may file the
summons, complaint, answer, and offer, or copies thereof, and
proof of acceptance; and thereupon the clerk must enter judgment
accordingly. If notice of acceptance be not thus given, the offer
cannot be given in evidence upon the trial; but, if the recovery be
not more favorable to the defendant than that so offered, he will
not be entitled to recover costs from the time of the offer, but must
pay costs from that time.

[Code § 739, without change. See Board’s Rules 71-73.]
144 Rerorr or Jornrt Leaisuative CommirTre

§ 179. Offer and acceptance; by whom subscribed. Unless
an offer or an acceptance, made as prescribed in either of the last
four sections, is subscribed by the party making it, his attorney
must subscribe it and annex thereto his affidavit to the effect that
he is duly authorized to make it in behalf of the party.

[Code § 740, without change.]

ARTICLE 22
WANT OF PROSECUTION

Section 180. Dismissal of complaint for neglect to serve summons.
181. Dismissal of complaint for neglect to proceed.

§ 180. Dismissal of complaint for neglect to serve sum-
mons. Where, in an action against two or more defendants,
the plaintiff unreasonably neglects to serve the summons upon one
or more of them, without whose presence a complete determination
of the controversy cannot be had, the court [may], in its dis-
cretion, upon the application of a defendant who has appeared in
the action, may dismiss the complaint as against him and render
judgment accordingly.

{Code § 821, without change. Included by Board in Rule 75.]

§ 181. Dismissal of complaint for neglect to proceed. Where
the plaintiff unreasonably neglects to proceed in the action against
the defendant, or one or more defendants against whom a separate
judgment may be taken, the court [may], in its discretion, upon
the application of the defendant or defendants or any of them
against whom he so neglects to proceed, may dismiss the com-
plaint as against the moving party or parties and render judgment
accordingly.

[Code § 822, without change. Included by Board in Rule 75.]

ARTICLE 23
VENUE

Section 182. Place of trial at residence.
183. Place of trial of real property action.
184. Place of trial where cause of action arose.
185. Place of trial of issue triable by court.
Civin Practice Act 145

Section 186. Place of trial if proper county not designated.
187. Change of place of trial.
188. Effect of change of place of trial.
189. Change of place of trial of actions pending in other
courts.
190. Removal of action to supreme court from county
court.

§ 182. Place of trial at residence. An action in the supreme
court not specified in the Plast}} two following sections must be
tried in the county in which one of the parties resided at the
commencement thereof. If neither of the parties then resided in
the state it may be tried in any county which the plaintiff desi¢-
nates for that purpose in the title of the complaint.

[Code § 984, without change of substance. See Board’s proposed Rule 76.

Reference to ‘‘ supreme court” inserted because of Code § 991. Section 982a
omitted as covered by Real Property Law, proposed § 536.]

§ 183. Place of trial of real property action. Each of the
following actions in the supreme court must be tried in the county
in which the subject of the action or some part thereof is situated:

An action of ejectment;

For the partition of real property ;

For dower;

To foreclose a mortgage upon real property, or upon a
chattel real;

To compel the determination of a claim to real property;

For waste;

For a nuisance; [or]

8. To procure a judgment directing a conveyance of real prop-
erty; [and]

9. Every other action to recover or to procure a judgment es-
tablishing, determining, defining, forfeiting, annulling or other-
wise affecting an estate, right, title, lien or other interest in real
property or a chattel real. [But where all the real property to
which the action relates is situated without the state the action
must be tried as prescribed in section nine hundred and eighty-
four of this act.]

G2 boo

aN

[Code § 982 without change, except the omission of the last sentence as
unnecessary. See Board’s proposed Rule 77.]
146 Reporr or Joinr. Leaisuative ComMirrer

§ 184. Place of trial where cause of action arose. An action
m the supreme court for [either] any of the following causes
must be tried in the county where the cause of action or some
part thereof arose:

1. To recover a penalty or forfeiture imposed by statute, except
that where the offence for which it was imposed was committed
on a lake, river or other stream of water situated in two or more
counties, the action may be tried in any county bordering on the
lake, river or stream and opposite [to] the place where the offence
was committed; but in an action where the people of the state are
a party to recover a penalty for trespass upon the lands of the
forest preserve, the action may be tried in a county adjoining the
county where the cause of action arose;

2. Against a public officer or a person specially appointed to
execute his duties for an act done [in] by virtue of his office or
for an omission to perform a duty incident to his office; or against
a person who, by the command or in the aid of a public officer,
has done anything touching his duties;

3. To recover a chattel distrained, or damages for distraining a
chattel.

[Code § 983 without change. See Board’s proposed Rule 78, which is prac-
tically identical. For reference to “ supreme court” see Code § 991.]

§ 185. Place of trial of issue triable by court. Jn an
action in the supreme court an issue of law, or an issue of fact
triable by the court without a jury, [arising in a county where no
special terms distinct from trial terms are appointed to be held for
the trial of such cases,} may be tried, in the discretion of the court
or upon stipulation by the parties, at a special term in any county
within the judicial district embracing the county wherein the
action is triable, but after the trial, the decision and all other
papers relating to the trial must be filed, and the judgment ren-
dered must be entered, in the last named county.

[Code § 990. The limitation in Code § 990, restricting the application of
the section to cases where no special terms distinct from trial terms are
appointed, has been removed and the section broadened so that in any ‘“ court ”
cause the court, in its discretion, may send the cause to any county in the
district for trial, or the parties may stipulate for such trial. See Board’s
proposed Rule 80.]

§ 186. Place of trial if proper county not designated. [it]
In an. action in the supreme court, notwithstanding that the county
Crvit Practice Act 147

designated in the complaint as the place of trial is not the proper
county, the action may[[, notwithstanding,] be tried therein
unless the place of trial is changed to the proper county upon the
demand of the defendant, followed by the consent of the plaintiff
or the order of the court.

[Code § 985, without change. Omitted by Board. See Board’s note 150.]

§ 187. Change of place of trial. The court [may], by order,
may change the place of trial of an action in the supreme court[,]
in either of the following cases:

1. Where the county designated for that purpose in the com-
plaint is not the proper county ;

2. Where there is reason to believe that an impartial trial can-
not be had in the proper county ; or

3. Where the convenience of material witnesses and the ends
of justice will be promoted by the change.

[Code § 987, without change. See Board’s proposed Rule 82. The last pat
tence of General Rules of Practice No. 48 has been omitted and the word

“material” inserted in subdivision 3 of the above section. This leaves the
procedure under subdivision 3 in the hands of the court.]

§ 188. Effect of change of place of trial. Where the place
of trial of an action in the supreme court is changed to another
county, the subsequent proceedings shall be had in the county to
which the change is made the same as if it ‘had been desig-
nated in the complaint as the place of trial, except as other-
wise directed by the court or provided by the written consent of
the parties. [And] The clerk of the county from which it is
changed must forthwith deliver to the clerk of the county to which
it is changed all papers filed in the action and certified copies
of all minutes and entries relating thereto, which must be filed,
entered, or recorded, as the case requires, in the office of the last
named clerk.

[Code § 988, without change. See Board’s note 150.)

§ 189. Change of place of trial of actions pending in other
courts. The supreme court upon the application of either
party may, and in a proper case must, make an order directing that
an issue of fact joined in an action or special proceeding pending
in any other court of record, except the city court of the city of
New York, or except an action in a county court relating to real
148 Revorr or Jornr Leaisuative Commrrrer

property, [to] be tried at a term of the supreme court in another
county on such terms and under such regulations as it deems just
[, and thereupon the issue must be tried accordingly]. After
the trial the clerk of the county in which it has taken place must
certify the minutes thereof, which must be filed with the clerk
of the court in which the action or special proceeding is pending.
The subsequent proceedings in the last mentioned court must be
the same as if the issue had been tried therein.

[Code § 218. Under the existing language of Code § 218, all county court
actions are in terms excepted from its provisions. New York city court
actions are also excepted. These two exceptions were contained in Code
§ 218 because the removal of county court actions to the supreme court
is regulated by Code §§ 343-346, and New York city court actions by Code
§ 319. The actions embraced within the scope of Code §§ 343-346 are those
specified in subdivisions 2 and 3 of Code § 340. They do not include real
property actions or foreclosure of liens on chattels, covered by Code § 340,
subd. 1. Code § 218 has been here amended so that the only county court
exception refers to real property actions, as specified in Code § 340, subd. 1.
This change in § 218 contemplates the repealing of §§ 343-346, omitting the
details of procedure contained in ‘those sections. If it is desired to omit the
restriction as to real property actions in the county court contained in
§ 218 as here presented, all reference to the county court can be omitted,
and the section would then permit the removal of all county court actions.

It will be noted that §§ 343-346 relate to the change of venue of an action
to another county, and after the change has been made all subsequent proceed-
ings are had in the new county. Section 218 provides only for a change fer
the purpose of the trial, and thereafter the action is returned to the original
county.

The Board retained Code § 218 as proposed Judiciary Law, § 194-d. The
Board made the following disposition of Code §§ 343-346: Section 343 was
placed in Judiciary Law as § 194-c; § 344 was covered by Judiciary Law,
§ 194-c, and County Law, § 179-e; § 345 was omitted as covered by proposed
Rule 64; § 346 was placed in Judiciary Law, § 31-a.]

§ 190. Removal of action to supreme court from county
court. The supreme court, upon the application of either party,
[made] upon notice and upon proof that the county judge is in-
eapable [to act] of acting in an action or special proceeding pend-
ing in the county court, may, and if the special county judge is
also incapable [to act] of acting must, make an order removing
it to the supreme court; such order to take effect from the entry
thereof in the county clerk’s office. Thereupon the subsequent
proceedings in the supreme court must be the same as if it had
originally been brought in that court, except that an objection
to the jurisdiction may be taken which might have been taken
in the county court. An order to stay proceedings for the purpose
Civin Pracrion Act 149

of affording an opportunity to make the application for removal
may be made by the county judge or by a judge authorized to
make such an order in the supreme court and with like effect and
under like circumstances.

[First two sentences are last two sentences of Code § 342. Last sentence
is Code § 345, which is applicable. See Board’s proposed Judiciary Law,
§§ 31 and 194-b, which are identical with the first two sentences as here
given. Remainder of section 342 is under * gencral provisions — county
court.” The new matter inserted at the end of first sentence is taken from
Code § 344. See Constitution, art. 6, § 14, last sentence, as follows: “A
county judge of any county may hold county courts in any other county
when requested by the judge of such other county.”

ARTICLE 24
PARTIES

Section 191. Parties to a civil action.

192. Nonjoinder and misjoinder.

193. Determination of rights of parties before the court.

194. Joinder of parties in interest.

195. Suing for benefit of others.

196. Leave to sue as poor person.

197. Costs in former action no bar.

198. Leave to defend as poor person.

199. Poor person defined.

200. Married woman as party.

201. Infant as a party.

202. Guardian ad litem generally.

203. Application for guardian ad litem.

204. Notice of application for appointment.

205. Liability for costs as guardian ad litem.

206. Guardian for absent infant defendant.

207. Guardian of infant or incompetent person without
application.

208. Guardian ad litem for incompetent person in certain
cases.

209. Joinder of plaintiffs generally.

210. Action to be brought in name of real party in
interest.

211. Joinder of defendants generally.
150 Rerorr or Jornt LecistuativE ComMItTTEE

Section 212. Defendant need not be interested in all the relief

claimed.

218. Where doubt exists as to who is liable.

214. People as defendants in certain real estate actions.

215. Unknown defendant.

216. Joinder as defendants of persons severally liable.

217. Defendant when allowed to defend after substituted
service.

§ 191. Parties to actions and special proceedings. The party
prosecuting a civil action is styled the plaintiff; the adverse party
is styled the defendant. Wherever by statute or rule provisions
in terms applicable to an action are made applicable. to a special
proceeding, the prosecuting party other than the people or, if the
special proceeding is instituted in the name of the people upon
the relation of a private corporation or individual, the relator, is
deemed a plaintiff and the adverse party a defendant.

[First sentence is Code § 3338, without change. See Board’s proposed Gen-
eral Construction Law, § 37-b, identical. Last sentence is last clause of Code
§ 3279, made general. ]

§ 192. Nonjoinder and misjoinder. No action or special pro-
ceeding shall be defeated by the nonjoinder or misjoinder of
parties. New parties may be added or substituted and parties
misjoined may be dropped by order of the court at any stage of
the cause as the ends of justice may require.

[New. Reference to “substitution” covers Code § 1588, omitted. See
Board’s proposed Rule 94, and also proposed Civil Practice Act, § 22. This
provision is from the New Jersey Practice Act of 1912, § 9. See also English
practice, Order 16, x. 11.]

§ 193. Determination of rights of parties before the court.
The court may determine the controversy as between the
parties before it where it can do so without prejudice to the rights
of others or by saving their rights; but where a complete deter-
mination cannot be had without the presence of other parties the
court must direct them to be brought in. [And] Where a person
not a party to the action has an interest in the subject thereof, or
in real property the title to which may in any manner be affected
by the judgment, or in real property for injury to which the com-
plaint demands relief, and makes application to the court to be
Crvitn Practice Act 151

made a party, it must direct him to be brought in by the proper
amendment.

[Code § 452 without change. See Board’s proposed Rule 95, which is
identical. See also Board’s proposed Civil Practice Act, § 22.
See Practice Act (N. J.), 1912, § 8.]

§ 194. Joinder of parties in interest. Of the parties to
the action those who are united in interest must be joined as plain-
tiffs or defendants except as otherwise expressly prescribed in this
act. [But] If the consent of any one who [ought to] should
be joined as a plaintiff cannot be obtained he may be made a
defendant, the reason therefor being stated in the complaint.
[And where the question is one of a common or general interest
to many, persons ; or where the persons, who might be made parties,
are very numerous and it may be impracticable to bring them all
before the court, one or more may sue or defend for the benefit

of all.J

[Code § 448 without change, except last sentence omitted and made a
new section. See section following. See Board’s proposed Rule 96 which
is identical with the second sentence of § 448. See also proposed Civil
Practice Act, § 20.]

§ 195. Suing for benefit of others. [And] Where the ques-
tion is one of a common or general interest of many persons or
where the persons who might be made parties are very numerous
and it may be impracticable to bring them all before the court,
one or more may sue or defend for the benefit of all.

[Code § 448, last sentence, without change. See Board’s proposed Rule 97
which is identical.]

§ 196. Leave to sue as poor person. A poor person whether
an adult or infant not being of ability to sue who alleges that
he has a cause of action against another person may [apply
dy petition to the court in which the action is pending, or in which
it is intended to be brought, for leave to}. by order of the court,
prosecute as a poor person and [to] have an attorney [and
counsel] assigned to conduct his action.

[Code § 458 without change of substance. See Board’s proposed Civil

Rights Law, § 222, which includes all of § 458. The portion omitted above
is transferred to rules.]
152 Report oF Joint Leeistative CommitTEE
Be)

§ 197. Costs in former action no bar. A person so [admitted
may] permitted to prosecute [his action, without paying fees
to an officer; and he} as a poor person shall not be prevented
from prosecuting [the same} his action by reason of his
being liable for the costs of a former action brought by him
against the same defendant. [[If judgment is rendered against
him, or his complaint is dismissed, costs shall not be awarded
against him. }

[Code § 461. ‘The omitted portions are covered under “ Costs and fees.”
See Board’s proposed Costs, Fees, Disbursements and Interest Law, § 125,
which contains practically the identical language of § 461.]

§ 198. Leave to defend as poor person. A defendant in
an action involving his right, title or interest in or to real or
personal property may petition the court in which the action is
pending for leave to defend the action as a poor person and to
have an attorney [and counsel} assigned to conduct his defense.

[Code § 463 without change. See Board’s proposed Civil Rights Law, § 222,
which includes all of § 463.]

§ 199. Poor person defined. A poor person within the
meaning of this article shall be a person who is not worth one
hundred dollars besides the wearing apparel and furniture neces-
sary for himself and his family, and the subject matter of the
action.

[Adapted from Code § 459, subd. 2. Inserted here to limit the scope of the
sections giving in general terms a right to poor persons to prosecute and
defend. Section 459 has been placed in rules.]

§ 200. Married woman as party. A married woman may
be a party in the same manner as if she were single. Her
husband is not a necessary or proper party solely because of his
relationship as such husband. {[In an action or special proceed-
ing a married woman appears, prosecutes or defends alone or
joined with other parties as if she was single. It is not necessary
or proper to join her husband with her as a party in any action
or special proceeding affecting her separate property. The hus-
band is not a necessary or proper party to an action or special
proceeding to recover damages to the person, estate or character
of his wife. The husband is not a necessary or proper party to
an action or special proceeding to recover damages to the person,
Crvit Practice Act 153

estate or character of another on account of the wrongful acts of
his wife committed without his instigation.

[New. Bracketed matter is Code § 450, omitted as covered by above new
section. See Board’s proposed Rule 101. See also Domestic Relations Law,
§§ 50, 51, 55, 57, 60.]

§ 201. Infant as a party. Where an infant has a right of
action he is entitled to maintain an action thereon, and the same
shall not be deferred or delayed on account of his infancy.

[Code § 468 without change. See Board’s proposed Domestic Relations
Law, § 66-a, which is identical.]

§ 202. Guardian ad litem generally. When an infant is
a party he must appear by a guardian ad litem who shall be
appointed by the court in which the action is brought or about to
be brought or a judge thereof ; [or] and if the action is [brought]
in the supreme court the guardian may be appointed by the county
judge of the county where the action is triable, may appoint
a guardian ad litem for an infant either plaintiff or defendant
as prescribed in this article. The clerk must act in that capacity
for an infant defendant where the court or judge appoints him.
No person other than the clerk shall be appointed as guardian ad
litem unless his written consent, duly acknowledged, is produced
to the court or judge making the appointment]; provided, how-
ever, that in an action for partition, the guardian ad litem can be
appointed by the court. Rules shall be made governing the
appointment, qualifications, security, powers, duties and com-
pensation of such guardian.

[The first sentence down to the second semi-colon is Code § 472. The
remainder of the sentence covers Code § 1535. The omitted portions are
covered elsewhere. The words “or about to be brought” are inserted to
cover the first part of Code § 469.]

§ 203. Application for guardian ad litem. The guardian
must be appointed upon the application of the infant if he is
of the age of fourteen years or upwards, or if he is under that
age upon the application of his general or testamentary guardian
if he has one, or of a relative or friend ; and in the case of an in-
fant defendant if no such application shall have been made the
application may be made by any other party to the action. [It
the application is made by a relative or friend notice thereof
154 Report or Jornt Lra@sLative ComMMITrEer

must be given to his general or testamentary guardian, if he has
one; or if he has none, to the person with whom the infant resides. ]
[Code § 470, except last sentence which has been omitted as covered

generally by the next section. The new matter is from Code § 471 and
covers a case where an infant is a defendant but makes no appearance.]

§ 204. Notice of application for appointment. 1. If the
application for the appointment of a guardian ad litem for an
infant plaintiff is made by a relative or friend notice thereof
must be given to his general or testamentary guardian if he has
one, or if he has none to the person with whom the infant resides.

2. Where the application for the appointment of a guardian
ad litem for an infant defendant is made by a person other than
the infant, notice thereof must be given to his general or testa-
mentary guardian if he has one within the state, or if he has
none to the infant himself if he is of the age of fourteen years
or upwards and within the state, or if he is under that age and
within the state to the person with whom he resides.

[Subd. 1 is Code §, 470, part; subd. 2 is Code § 471, part.]

§ 205. Liability for costs of guardian ad litem. 4 guardian
ad litem for an infant is not liable for costs unless specially
charged therewith by the order of the court.

[See Code §§ 477 and 469. This section is re-written from Code § 477 and
last part of Code § 469. The language of the Code provisions have been
changed by placing the matter of the responsibility of a guardian ad litem
for costs in every case in the hands of the court. Code § 469 provides that a
guardian ad litem for an infant plaintiff shall be responsible for costs
“except where such infant prosecutes as a poor person.” Code § 477 provides
that a guardian ad litem for an infant defendant “is not liable for the costs
of the action, unless specially charged therewith by the order of the court, for
personal misconduct.” Code § 3249 omitted in view of the provisions of this
section.]

§ 206. Guardian for absent infant defendant. Where an
infant defendant resides out of the state or resides within the state
and is temporarily absent therefrom, the court [may], in its dis-
cretion, may make an order designating a person to be his guard-
ian ad litem unless [he] the infant or some one in his behalf pro-
cures such a guardian to be appointed as prescribed in [the last
two sections] this article within a specified time after service
of a copy of the order. The court must give special directions
in the order respecting the service thereof, which may be upon the
infant. [The summons may be served by delivering a copy to
Crviz Practice Act 155

the guardian so appointed with like effect as where a summons
is served without the state, upon an adult defendant, pursuant to
an order for that purpose, granted as prescribed in section 438
of this act; except that the time to appear or answer is twenty
days after the service of the summons, exclusive of the day of
_ service. J

[Code § 473 without change except omission of last sentence which is
covered under “ Service ” and ‘‘ Appearance.”’]

§ 207. Guardian of infant or incompetent person without
application. The supreme court may appoint a guardian ad
litem or special guardian for an infant or an incompetent person,
at any stage in any action or proceeding, when it appears to the
court necessary for the proper protection of the rights and interests
of such infant or incompetent person and fix the fees and com-
pensation of such guardians, except when it is otherwise expressly
provided by law.

[Code § 477-a, without change. This section was added to the Code in 1916,
and is retained because there should be some such broad power for courts
to exercise when proper for the protection of an infant or incompetent.
The section was not a part of the Code at the time the Board made its
report and hence was not dealt with by the Board.]

§ 208. Guardian ad litem for incompetent person in certain
cases. In [a case specified in subdivision second, the court
may, the case of a defendant judicially declared to be incom-
petent to manage his affatrs, in consequence of lunacy, idiocy or
habitual drunkenness, and for whom a committee has been ap-
pointed, where the court, in its opinion, has reasonable ground
to believe that the interest of the committee ts adverse to that of
the defendant, or that for any reason he is not a fit person to
protect the rights of the defendant, the court, with or without appli-
cation therefor and in the defendant’s interest, [as a part of the
same order or} by [a separate] order made [in like manner and
upon like ground,] at any stage of the action, may appoint a
special guardian ad litem to conduct the defence for the incom-
petent defendant, to the exclusion of the committee, and with the
same powers, and subject to the same liabilities, as a committee
of the property.

[Code § 428, last sentence. The new matter is taken from the first sentence

of § 428 and from § 426, subd. 2, and is inserted to cover “in like manner
and upon like ground,” which words are here omitted.]
156 Report or Jornt LeaisuativeE Commirrer

§ 209. Joinder of plaintiffs generally. All persons may be
joined in one action as plaintiffs, in whom any right to relief
in respect of or arising out of the same transaction or series of
transactions is alleged to exist whether jointly, severally or in
the alternative, where if such persons brought separate actions
any common question of law or fact would arise; provided that
if upon the application of any party it shall appear that such
joinder may embarrass or delay the trial of the action, the court
may order separate trials or make such other order as may be
expedient, and judgment may be given for such one or more of
the plaintiffs as may be found to be entitled to relief, for the
relief to which he or they may be entitled.

[New. See Board’s proposed Rules 110 and 123. The above section is Eng-
lish Practice Act, order 16, rule 1, except that the last sentence of the latter
relating to costs has been omitted. Code § 446 omitted, being covered by the
provisions relating to joinder of parties plaintiff.

The English practice on this subject is as follows:

Joinder of parties under English practice. ‘All persons may be joined in
one action as plaintiffs, in whom any right to relief in respect of or
arising out of the same transaction or series of transactions is alleged to
exist, whether jointly, severally, or in the alternative where if such persons
brought separate actions any common question of law or fact would arise;
provided that, if upon the application of any defendant it shall appear
that such joinder may embarrass or delay the trial of the action, the court
or a judge may order separate trials, or make such other order as may be
expedient. And judgment may be given for such one or more of the plaintiffs
as may be found to be entitled to relief, for such relief as he or they may
be entitled to without any amendment. But the defendant, though unsuccess-
ful, shall be entitled to his costs occasioned by so joining any person who
shall not be found entitled to relief, unless the court or a judge in disposing
of the costs shall otherwise direct.’”” (English Practice Act, order 16, r. 1.)

The New Jersey practice provides as follows:

Joinder of parties under New Jersey practice. “Subject to rules, all per-
sons claiming an interest in the subject of the action and in obtaining the
judgment demanded, either jointly, severally or in the alternative, may join
as plaintiffs, except as otherwise herein provided. And persons interested
in separate causes of action may join if the causes of action have a common
question of law or fact and arose out of the same transaction or series of
transactions.” (Practice Act, N. J., 1912, § 4.)

“Tf one who may join as plaintiff declines to do so, he may be made a
defendant, the reason therefor being stated in the complaint.” (Id., § 5.)]

§ 210. Action to be brought in name of real party in
interest. Every action must be prosecuted in the name of the
real party in interest, except that an executor or administrator, a
trustee of an express trust, a person with whom. or in whose name
a contract 1s made for the benefit of another, or a person ex-
Oivin Pracricr Aot 157

pressly authorized by statute, may sue without joining with him
the person for whose benefit the action is prosecuted. [[A person
with whom or in whose name a contract is made for the benefit
of another, is a trustee of an express trust, within the meaning of
this section. ]}}

[Code § 449 without change of substance. New matter in first sentence is

taken from second sentence. See Board’s proposed Civil Practice Act, § 21
and Rule 111 being practically identical.]

§ 211. Joinder of defendants generally. All persons may
be joined as defendants against whom the right to any relief
as alleged to exist, whether jointly, severally or in the alternative ;
and judgment may be given against such one or more of the de-
fendants as may be found to be liable, according to their respective
liabilities.

{New. Identical with English Practice Act, order 16, rule 4, except that
such rule contains the words “without any amendment” at the end of the
section. See Code § 447, first sentence, omitted as covered. See Board’s pro-

posed Rule 123, which is identical, and Civil Practice Act, § 20. This section
broadens the rule as to parties defendant.]

§ 212. Defendant need not be interested in all the relief
claimed. I[¢ shall not be necessary that each defendant shall
be interested as to all the relief prayed for, or as to every cause of
action included in any proceeding against him; but the court may
make such order as may appear just to prevent any defendant from
being embarrassed or put to expense by being required to attend
any proceedings in which he may have no interest.

{[New. See Board’s proposed Rule 124 and English Practice, order 16, r. 5,

which are identical with the above section. This provision is necessary in
view of the preceding section. See also next section.]

§ 213. Where doubt exists as to who is liable. Where
the plaintiff 1s in doubt as to the person from whom he is entitled
to redress, he may join two or more defendants, to the intent that
the question as to which, if any, of the defendants is liable, and to
what extent, may be determined as between the parties.

[New. See Board’s proposed Rule 114 which is identical, and English
Practice, order 16, rule 7, practically identical.

The following illustration for the reason for the above provision is given in
the notes to the English practice rules:

“The typical case for the application of the rule which is of most frequent
occurrence in practice is where a person, assuming to act as agent for a
disclosed principal, makes a contract with plaintiff, the breach of which gives
158 Repvorr oF Jomnr Leaisuative CoMMITTEE

rise to the action. The principal repudiates the agent’s authority. Plaintiff
is in the dark as to the authority of the agent. He may join both principal
and agent under this rule, claiming against the principal such relief as he
may be entitled to upon the footing that the agent had the authority which
he assumed to have, and alternatively claiming against the agent damages
for breach of warranty of authority.”]

§ 214. People as defendants in certain real estate actions.
In any action brought affecting real estate upon which the
people of the state of New York have or claim to have a lien under
the transfer tax act, the [said] people of the state of New York
may be made a party defendant in the same manner as a private
person.

[Code § 447, first part of second sentence.]

§ 215. Unknown defendant. Where the plaintiff is ignorant
of the name or part of the name of a defendant, he may desig-
nate that defendant, in the summons and in any other process
or proceeding in the action, by a fictituous name or by as much ot
his name as is known, adding a description identifying the person
intended. Where the plaintiff demands judgment against an
unknown person, he may designate that person as unknown, adding
a description tending to identify him. In either case the person
intended is thereupon regarded as a defendant in the action and
as sufficiently described therein for all purposes, including swbstz-
tuted service of the summons[L, as prescribed in article second of
the last title]. When the name or the remainder of the name
of the person becomes known, an order must be made by the court
upon such notice [and such], with or without terms, as it pre
scribes, that the proceedings already taken be deemed amended by
the insertion of the true name in place of the fictitious name or
part of name or the designation as an unknown person, and that
all subsequent proceedings be taken under the true name.

[Code § 451 without change of substance. See Board’s proposed Rule 125
which is identical with the first three sentences. Word “substituted” is

inserted to cover the omitted reference. Words “with or without” sub-
stituted for “and such,” thus leaving terms to the discretion of the court. |

§ 216. Joinder as defendants of persons severally liable.
1. Two or more persons severally lable wpon the same writ-
ten instrument, including the parties to a bill of exchange or
a promissory note, whether the action is brought upon the instru-
ment, or by a party thereto to recover against other parties liable
Crvitz Practice Act 159

over to him, may all or any of them be included as defendants in
the same action at the option of the plaintiff.

2. The joinder of a person, as a defendant in an action, with
another person, as prescribed in the last section, does not affect
his right to any order or other relief to which he would have been
entitled if he had been separately sued in the action.

[The last three sections do] 3. This section does not affect
a defence or other objection of a defendant, growing out of the
failure to join in the action two or more persons jointly liable;
and, as regards the other parties to the action, persons jointly
liable are regarded as one party for every purpose contemplated
by [those sections] this section.

[Subd. 1 is Code § 454. Subd. 2 is Code § 455. Subd. 3 is Code § 457, also

included under “ Judgments” with Code §-456. See Boar'd’s proposed Rule
113.]

§ 217. Defendant when allowed to defend after substituted
service. Where the summons is served, pursuant to an order
for substituted service [made as prescribed in this article],
in any other manner than personally without the state, and
the defendant so served does not appear; he or his representa-
tives, on application and sufficient cause shown, at any time before
final judgment, must be allowed to defend the action; and, except
in an action for divorce or wherein the contrary is expressly pre-
scribed by law, such defendant or his representatives, [must,] in
like manner, upon good cause shown and upon just terms, must be
allowed to defend, after final judgment, at any time within one
year after personal service of written notice thereof; or, if suca
a notice has not been served, within seven years after the filing
of the judgment-roll. If the defence is successful and the judg-
ment or any part thereof has been collected or otherwise enforced,
such restitution as the court directs may thereupon be compelled
[as the court directs]; but the title to property sold to a pur-
chaser in good faith, pursuant to a direction contained in the
judgment or by virtue of an execution issued upon the same, shall
not be affected thereby. So much of this section [445 of this
act, as requires the court to allow a defendant to defend an
action, after final judgment, does not apply to an action for
partition.

[All except last sentence is Code § 445, without change. The Board classi-

fied this section to Civil Rights Law, § 236, and Real Property Law, § 19.
Last sentence is Code § 1557, subd. 1, last sentence.]
160 Rerorr or Joint Le@isLative CoMMITTEE

Section 218

219,
220.
221.
222.
2238.
224.

225.
226.

227.
228.
229.
230.
281.
232.
238.
284.

235,

ARTICLE 25
SJMMONS

Summons generally.

Supplemental summions.

Service of summons.

Service of summons where people a party.

Service of summons in action for penalty by com-
mon informer,

Service of summons upon partnership using name of
deceased person.

Service of summons upon non-resident infant by
delivery to guardian.

Personal service of summons upon a natural person.

Personal service of summons where defendant in-
competent.
Designation by resident of person upon whom a
summons may be served during his absence.
Personal service of summons upon domestic corpora-
tion.

Personal service of summons upon a foreign
corporation.

Order for substituted service of summons in certain
cases.

Manner of making substituted service.

Order for service of summons by publication.

Service without the state in lieu of publication.

Order for service of summons by publication; by
whom made.

Personal service out of the state without order.

§ 218. Summons generally. A civil action is commenced by
the service of a summons, which is a mandate of the court.
[But from the time of the granting of a provisional remedy
the court acquires jurisdiction and has control of all the subse-
quent proceedings. Nevertheless, jurisdiction thus acquired
is conditioned, and liable to be divested, in a case where the
jurisdiction of the court is made dependent, by a special pro-
vision of law, upon some act, to be done after the granting of
Civin Practicr Act 161

the provisional remedy.] Rules may be made respecting the
requisites and form of a summons and notice and indorsements
thereon.

[Code § 416. The second and third sentences are omitted here and covered
elsewhere. The Board covered these two sentences in proposed Judiciary Law,
§ 31-j. The new matter inserted in first sentence is taken from Code § 418.
See Board’s proposed Rule 89. The last sentence is new.]

§ 219. Supplemental summons. Where the court directs
a new defendant to be brought in and the order is not made upon
his own application, a supplemental summons directed to him
must be issued[[, directed to him, and in the same form as an
original summons; except that, in the body thereof, it must require
the defendant to answer the original or amended complaint, and
the supplemental complaint, or either of them, as the case requires.
And each provision of this chapter, relating to personal service,
or a substitute for personal service of an original summons, applies
to such a supplemental summons].

[Code § 453, part of first sentence, without change. Last part of first
sentence is omitted as a proper provision for rules. Last sentence is covered
elsewhere. See Board’s proposed Rules 91 and 200.]

§ 220. Service of summons. The summons may be served
by any person of the age of eighteen years or over, other than
a party to the action, except where it is otherwise specially pre-
scribed by law. The plaintiff’s attorney [may], by an indorse
ment on the summons, may fix a time within which the service
thereof must be made; in that case, the service cannot be made
afterwards. Where a summons is delivered for service to the
sheriff of the county wherein the defendant is found, the sheriff
must serve it, and return it, with proof of service, to the plaintiff’s
attorney, with reasonable diligence. [[And each provision of this
chapter] The provisions of this article relating to personal serv-
ice, or a substitute for personal service, of an original summons
apply to a supplemental summons.

[Code § 425. The last sentence is the last sentence of § 453. The words
“of the age of 18 years or over” in the first sentence cover the limitation in
General Rule of Practice 18. Board Rule 200, in part.]

§ 221. Service of summons where people a party. In a
case in which the people of the state are by law a proper party
6
162 Reporr oF Jormnr Leaistative ComMirrEer

defendant, the summons shall be served on the attorney-general,
who may appear in behalf of the people. The delivery of a copy
of the summons to a deputy attorney-general in person at the office
of the attorney-general shall be equivalent to personal service on
the attorney-general.

[Board Rule 202, derived from Code § 447, last sentence, § 1594 pt., § 1598
pt., 1627 pt., extended and made general. The last sentence is new.]

§- 222. Service of summons in action for penalty by com-
mon informer. The summons in an action [brought as pre
scribed in the last section] for a penalty or forfeiture given by a
statute to any person who sues therefor can be served only by an
officer authorized by law to collect an execution issued out of the
same court. The summons when issued cannot be countermanded
by the plaintiff before the service thereof[; and]. Immediately
after it has been served, the officer who served it must file it with
his certificate of service in the office of the clerk or deliver it with
a like certificate to the magistrate by whom it was issued, as the
case requires.

[Code § 1895, without change of substance. See Board Rule 203.]

§ 223. Service of summons on partnership using name of
deceased person. In case any action or proceeding shall be
brought, founded in whole or in part upon any transaction grow-
ing out of a business conducted under the name of a deceased
person, as provided by subdivision three of section twenty and
section twenty-one of the partnership law, and the name of the
deceased person is stated as a defendant, the process and papers
therein may be served on any person or persons using such name
with like effect as though all such persons were served with
process, and the process and all papers may be amended by sub-
stituting the name or names of the person or persons using the
name of such deceased, and no action or proceeding shall fail,
abate or be in any manner hindered by the name of such deceased
being so used.

[Code § 801l-a, without change of substance. Board Rule 205, identical.]

§ 224. Service of summons upon non-resident infant by
delivery to guardian. Where a guardian ad litem has been
appointed for an infant residing out of the state or residing within
the state but temporarily absent therefrom, the summons may
Crvit Practice Act 168

be served by delivering a copy to the guardian so appointed,
with like effect as where a summons is served without the State
upon an adult defendant, pursuant to an order for that purpose[,
granted as prescribed in section four hundred and thirty-eight
of this act; except that the time to, appear or answer is twenty
days after the service of the summons, exclusive of the day of
service].

[Code § 473, third sentence. The last clause, relating to time to appear or
answer, is covered elsewhere in separate section.]

§ 225. Personal service of summons upon a natural person.
Personal service of the summons upon a defendant being a
natural person must be made by delivering a copy thereof within
the state as follows:

1. If the defendant be an infant, [under the age of fourteen
years,] to his father, mother or guardian, or if there be none
within the state, to the person having the care and control of him,
or with whom he resides, or in whose service he is employed, and
if the infant be of the age of fourteen years, or over, also to the
infant in person. [If the defendant be an infant over the
age of fourteen years, to the infant in person, and also to his
father, mother or guardian; or, if there be none within the state,
to the person having the care and control of him, or with whom
he resides, or in whose service he is employed.J Where the
defendant is an infant under the age of fourteen years, the
court [shall], in the defendant’s interest, shall make an order
requiring a copy of the summons to be also delivered in behalf
of the defendant to a person designated in the order, and that
service of the summons shall not be deemed complete until it is
so delivered. Where the defendant is an infant [over] of the
age of fourteen years, or over, a similar order may be made by
the court, in its discretion, with or without application therefor.

2. If the defendant be a person judicially declared to be
incompetent to manage his affairs, in consequence of lunacy, idiocy
or habitual drunkenness, and for whom a committee has been
appointed, to the committee, and also to the defendant in person ;
but the court, in its discretion, may make an order dispensing with
delivery to the defendant in person.

[3. If the action is against a sheriff, for-a cause specified: i in
section one hundred and fifty-eight of this act, by delivering it to
the defendant in person, or to his andér-sheriif in person, or at the
164. Report or Joint Leaisiative Commirrer

office of the sheriff during the hours when it is required by law to
be kept open, to a deputy sheriff or a clerk in the employment of
the sheriff, or other person in charge of the office. ]

[4]9. In any other case, to the defendant in person.

[Code § 426, omitting subd. 3, which is to be included in prison law in con-
nection with § 158 of the Code.

The Field Code, § 134, provided that service of the summons upon @ minor
under the age of fourteen years shall be made by delivering a copy to such
minor personally and also to his father, mother or guardian, and if there be
none within the state, then to any person having the care and control of such
minor, or with whom he shall reside, or in whose service he shall be employed.
In all other cases, including infants over fourteen years, the summons shall be
delivered to the defendant personally. The same rule was originally enacted
in Throop Code, § 426.

Section 426, however, amended in 1913 by chapter 279, dispensed with the
requirement of delivery of the copy of the summons to an infant under four-
teen personally and provided that where the infant is under that age the court
shall make an order designating a person to whom the summons shall be deliv-
ered, retaining the requirement that the summons shall be delivered also to
the father, mother or guardian.

Under the amended section service is required to be made on an infant over
fourteen and also on his parent or guardian. The amendment also permits the
court to require additional service in case of an infant over fourteen on a
person designated by the court. This latter provision was formerly in § 427
and was taken out by such amendment and transferred to § 426.

Subd. 2 has been amended by the committee authorizing the court in its
discretion to dispense with the delivery of a copy of the summons to a defend-
ant who is a lunatic, idiot or habitual drunkard. Section 429 authorizes the
court to dispense with such delivery in the case of a lunatic if the delivery to
him will tend to aggravate his disorder, or to lessen the probability of his
recovery. Under § 2320 the jurisdiction of the court extends to the custody of
the person and. the care of the property of a person incompetent in consequence
of lunacy, idiocy, habitual drunkenness or senility. There seems to be no
reason why the court should not in any case be authorized to dispense wit!
the delivery of a copy of the summons to such incompetent under proper cir
cumstances. ]

§ 226. Personal service of summons where defendant incom-
petent. The court [may], in its discretion, with or without an
application therefor, and in the defendant’s interest, may make an
order requiring a copy of the summons to be also delivered in
behalf of the defendant to a person designated in the order, and
that service of the summons shall not be deemed complete until it
is so delivered, in either of the following cases:

1. Where the court has reasonable ground to believe that the
defendant by reason of habitual drunkenness, or for any other
Crvit Practice Act 165

cause, is mentally incapable adequately to protect his rights,
although not judicially declared to be incompetent to manage his
affairs; or

2. In a case where the defendant is a person judicially
declared to be incompetent to manage his affairs in consequence
of lunacy, idiocy or habitual drunkenness, where the court has
reasonable ground to believe that the interest of the committee
is adverse to that of the defendant, or that for any reason he is
not a fit person to protect the rights of the defendant.

[Code § 427 and first sentence of § 428 combined and rewritten, without
intended change of substance. The last sentence of § 428 has been covered
under “ Parties ” and under “ Trial.”

The reference in § 428 to subd. 1 of § 426 was rendered obsolete by the
amendment of subd. 1 of § 426 by Laws of 1913, chapter 279.]

§ 227. Designation by resident of person upon whom a
summons may be served during his absence. A resident of
the state, of full age, may execute[[, under his hand,] and
acknowledge, in the manner required by law to entitle a deed to
be recorded, a written designation of another resident of the state,
as a person upon whom to serve a summouis, or any process or
other paper for the commencement of a [civil] special proceed-
ing, in any court or before any officer, during the absence from the
state of New York of the person making the designation; and may
file the same, with the written consent of the person so designated,
executed and acknowledged in the same manner, in the office of
the clerk of the county where the person making the designation
resides. The designation must specify [the occupation or other
proper addition, and] the residence of the person making it and
also of the person designated; and it remains in force during the
period specified therein, if any; or, if no period is specified for
that purpose, for three years after the filing thereof. But it is
revoked earlier by the death or legal incompetency of either of
the parties thereto, or by the filing of a revocation thereof, or of
the consent, executed and acknowledged in like manner. The
clerk must file and record such a designation, consent or revoca-
tion, and must note upon the record of the original designation
the filing and recording of a revocation. While the designation
remains in force, as prescribed in this section, a summons, or any
process or other paper for the commencement of a [civil] special
_ proceeding, against the person making it, in any court or before
any officer, may be served upon the person so designated, in like
166 Report or Jornt LeGistativeE ComMItTEE

manner and with like effect, as if it were served personally upon
the person making the designation, notwithstanding the return of
the latter to the state of New York.

[Code § 430. The word “ civil” is omitted as surplusage, without intended
change of meaning. The Board re-enacted this section in the Civil Rights
Law, § 234, and County Law, § 179f.]

_ § 228. Personal service of summons upon domestic corpora-
tion. Personal service of the summons upon [a defendant, being]
a domestic corporation must be made by delivering a copy thereof,
within the state, as follows:

1. If the action be against the [mayor, aldermen, and com-
monalty of the] city of New York, to the mayor, comptroller or
counsel to the corporation.

2. If the action be against any other city, to the mayor, comp-
troller, treasurer, counsel, attorney or clerk; or, if the city lack
either of those officers, to the officer performing corresponding
functions under another name.

3. In any other case, to the president or other head of the cor-
poration, the secretary or clerk to the corporation, the cashier,
the treasurer or a director or managing agent.

[Code § 431, amended as indicated. Board rule 209.]

§ 229. Personal service of summons upon foreign corpora=
tion. Personal service of the summons upon a [defendant, being
a] foreign corporation must be made by delivering a copy thereof,
within the state, as follows:

1. To the president, vice-president, treasurer, assistant treas-
urer, secretary or assistant secretary; or, if the corporation lack
either of those officers, to the officer performing corresponding
functions under another name.

2. To a person designated for the purpose as provided in section
sixteen of the general corporation law.

3. If such a designation be not in force, or if neither the per-
son designated, nor an officer specified in subdivision first of this
section, can be found with due diligence and the corporation has
property within the state, or the cause of action arose therein, to
the cashier, a director or a managing agent of the corporation,
within the state.

4. If the person designated as provided in section sixteen of
the general corporation law dies or removes from the place where.
the corporation has its principal place of business within the state
Crvin Practice Act 167

and the corporation does not within thirty days after such death
or removal designate in like manner another person upon whom
process against it may be served within the state, the swmmons
[process against the corporation] in an action against the cor-
poration upon any liability incurred within this state, or if the
corporation has property within the state, may be served, after
such death or removal, [or revocation] and before another
designation is made, [be served upon the secretary of state.

[Code § 432, without change of substance. Board rule 210.]

§ 230. Order for substituted service of summons in certain
cases. Where a summons is issued in any court of record,
an order for the service thereof upon a defendant, whether a
domestic corporation other than a municipal corporation, a joint-
stock or other unincorporated association having a president or
treasurer residing within the state, or a natural person residing
within the state, may be made by the court, or a judge thereof, or
the county judge of the county where the action is triable, upon
satisfactory proof[[, by the affidavit of a person not a party to the
action, or by the return of the sheriff of the county where such
defendant resides, or has its principal office or place of business,
that proper and diligent effort has been made to serve the sum-
mons upon the defendant and that none of the persons mentioned
in subdivision three of section four hundred and thirty-one, nor
the president or treasurer of such association, can be found, or if
the defendant is a natural person, that the place of his sojourn
cannot be ascertained, or if he is within the state, that he avoids
service, so] that the plaintiff has been or will be unable, with due
diligence, to make personal service of the summons within the
state [cannot be made].

[Code § 435 amended as indicated. The limitation as to service on a joint-
stock or other unincorporated association having a president or treasurer
within the state is inserted to clarify the distinction between the procedure
under this section and the obtaining of an order for publication against such
an association whose president or treasurer does not reside in the state.]

- § 231. Manner of making substituted service. The order
must direct that the service of the summons be made (1) by
leaving a copy thereof, and of the order, if the defendant is a
domestic corporation or joint-stock or other unincorporated asso-
ciation, at its principal office or place of business, or if a natural
person, at the residence of the defendant, with a person of proper
168 Rerort or Joint Leaistative CoMMITTEE

age, if upon reasonable application admittance can be obtained
and such person found who will receive it; or (2) if admittance
cannot be so obtained nor such person found, by affixing the same
to the outer or other door of the defendant’s said place of business
or office, or of his residence, and by depositing in a postoffice
another copy thereof, properly inclosed in a post-paid wrapper,
addressed to the defendant at its said principal office or place of
business, or to him at his place of residence, [in the postoffice at
the place where he resides, or where said office, place of business
or residence is located,] or (3) im the case of a natural person,
upon proof [being made} by affidavit that no such residence can
be found, service of the summons may be made in such manner
as the court may direct.

[Code § 436, amended as indicated.

The requirement of posting at the postoffice where defendant resides is not

observed in practice, and seems to serve no useful purpose and is therefore
omitted.]

§ 232. Order for service of summons by publication. An
order directing the service of a summons upon a defendant, by
publication, may be made in either of the following cases:

1. Where the defendant to be served is a foreign corporation ;
or is [an] @ joint-stock association or other unincorporated asso-
ciation [consisting of seven or more persons] having a president
and treasurer neither of whom is a resident of this state; or, being
a domestic corporation, where after diligent effort service cannot
be made.within the state upon the president or other head of the
corporation, the secretary or clerk to the corporation, the cashier,
the treasurer or a director or managing agent; or, being a natural
person, is not a resident of the state; or where, after diligent
inquiry, the defendant remains unknown to the plaintiff or the
plaintiff is unable to ascertain whether the defendant is or is not
a resident of the state.

2, Where the defendant, being a resident of the state, has
departed therefrom with intent to defraud his creditors or to
avoid the service of a summons or keeps himself concealed therein
with like intent.

3. Where the defendant, being an adult and a resident of the
state, has been continuously without the state of New York more
than six months next before the granting of the order and has not
made a designation of a person upon whom to serve a summons in
his behalf as prescribed by law [in section four hundred and
thirty of this act]; or a designation so made no longer remains in
Crvin Practice Act 169

force; or service upon the person so designated cannot be made
within the state after diligent effort.

4. Where complete personal service of the summons cannot
be made within the state, after due diligence, upon an infant or
incompetent defendant, whether a resident or non-resident of the
state, by delivering a copy to the person or persons to whom and
each of whom a copy is required to be delivered by the provisions
of section two hundred and twenty-five.

[4]5. Where the complaint demands judgment annulling a
marriage, or for a divorce, or a separation.

[5]6. Where the complaint demands judgment that the defend-
ant be excluded from a vested or contingent interest in or lien upon
specific real or personal property within the state; or that such an
interest or lien in favor of either party be enforced, regulated,
defined or limited ; or otherwise affecting the title to such property.

[6]7. Where the defendant is a resident of the state or a domes-
tic corporation and an attempt was made to commence the action
against the defendant [as required by chapter fourth of this act]
before the expiration of the limitation applicable thereto [as fixed
in that chapter,] and the limitation would have expired within
sixty days next preceding the application if time had not been
extended by the attempt to commence the action.

[7]8. Where the action is against the stockholders of a corpora-
tion or joint-stock company and is authorized by law of the state
and the defendant is a stockholder thereof. [When a copy of the
summons is required by subdivision first or subdivision second of
section four hundred and twenty-six of this act, or by section four
hundred and twenty-nine of this act, to be delivered to a person
other than the defendant, an order directing the service of the
summons upon such person by publication may be made as pre-
scribed in this section, as if such person was the defendant in the
action, and upon a verified complaint and the same proof with
respect to such person, as required in the next succeeding section
with respect to a defendant. And section four hundred and forty
to four hundred and forty-four, both inclusive, apply to the pro-
ceedings in like manner as if such person was a defendant.]

The order must be founded upon a verified complaint showing
a sufficient cause of action against the defendant to be served and
proof by affidavit of the additional facts required by this [the
last] section; and also, where the application is made upon the
ground that the defendant is a foreign corporation or not a resi-
dent of the state, or in a case specified in subdivision) [fourth,]
170 Revorr or Jownt Lecistative CoMMITTEE

fifth, sixth or eighth [or seventh of the last section], that the
plaintiff, with due diligence, has been or will be unable [with due
diligence]. to make personal service of the summons. —

If the defendant be an infant, the affidavit shall also set forth
the name, and the last known residence, within or without the
state, of the father, mother or guardian of such infant, or person
having the care or control of him, or with whom he resides, or in
whose service he is employed, or that the name and such residence,
or either, of such person is unknown to the applicant.

[Code § 438, amended as indicated. Last paragraph but one is Code § 439
without change of substance. Subd. 4 is new. Last paragraph of section is
also new.]

§ 233. Service without the state in lieu of publication.
In all cases when publication of the summons is ordered, service
of the copy of the summons and complaint and of any accompany-
ing notice required by rules by the delivery thereof to the de
fendant personally without the state is equivalent to notice by
publication and deposit in the post-office. The service must be
made by a resident or citizen of the state of New York, or a
sheriff, under-sheriff, deputy sheriff or constable of the county
or other political subdivision in which the service is made, or an
officer authorized by the laws of this state to take acknowledg-
ments of deeds to be recorded in this state, or an attorney and
counselor at law duly qualified to practice in the state where
such service is made, or by a United States marshal.

[Code § 443, subds. 2 and 5, rewritten without intended change of sub-
stance, except that the provision that the proof of service must show who
served the summons is placed in a rule on proof of service of summons
generally.

Subd. 1 is included in a rule covering also form of notice where service is by
publication.

Subd. 3 relates to service without the state without an order and is therefore
made a separate section.

Subd. 4 is included in a rule, covering also service by publication.

Subd. 6 is included in a section under the head of “ Judgments.”

See Board rules 216 and 218.

Prior to the amendments to § 443 and other sections by chapter 346 of the
Laws of 1914 plaintiff was required to obtain either an order for publication
or an order for service without the state; or an order providing for publica-
tion or such service in the alternative.

In the interest of simplification the chapter of the Laws of 1914, referred
to above, permitted service without the state in lieu of publication after the
plaintiff had obtained an order for publication.]
be

Crvi, Practice Act 171

§ 234. Order for service of summons by publication; by
whom made. The order for service of a summons by publica-
tion may be made by the court or by a judge thereof or the county
judge of the county where the action is triable or in which the
attorney for the applicant resides.

[Code § 440, first sentence, amended as indicated.]

§ 235. Personal service out of the state without order.
Where the complaint demands judgment that the defendant be
excluded from a vested or contingent interest in or lien upon
specific real or personal property within the state or that such an
interest or lien in favor of either party be enforced, regulated,
defined or limited, or otherwise affecting the title to such prop-
erty, the summons may be served without an order, upon a defend-
ant without the state in the same manner as if such service were
made within the state, except that a copy of the complaint shall
be annexed to and served with the’summons.

{Code § 448, subd. 3, without intended change of substance.- Board rule 217,

except that the rule does not require the copy of complaint to be “ annexed to ”
the summons. ]

ARTICLE 26
APPEARANCE

Section 236, Appearance in person or by attorney.
287. Defendant’s appearance.
238. Effect of defendant’s appearance.
239. Appearance of guardian ad litem for infant.
240. Death, removal or disability of attorney.

§ 236. Appearance in person or by attorney. <A party
[to a civil action] who is of full age may prosecute or defend
[the same] a civil action in person or by attorney[[, at his elec-
tion, unless he has been judicially declared to be incompetent
to manage his affairs. [Each provision of this act] Wherever
in a statute or rule relating to the conduct of an action[[, wherein
the} a reference is made to an attorney for [the] a party [is
mentioned, includes] 2¢ shall be deemed to include a party prose-
cuting or defending in person unless otherwise specially prescribed
therein or unless that construction is manifestly repugnant to the
AQ Report oF Joint Leaisuative CoMMITTEE

ontext. If.a party has an attorney in the action he cannot appear
0 act in person [where an attorney may appear or act either
'y special provision of law or by the course and practice of] except
vith the consent of the court.

[Code § 55. See Board’s proposed rule 132, which is the same in substance.
teference to “each provision of this act” omitted and “statute or rule”
aserted because of removal of various code sections and provisions to rules
nd consolidated laws. The language of the last sentence is changed to broaden
he right of appearance by a party.]

§ 237. Defendant’s appearance. The defendant’s appearance
nust be made by serving upon the plaintiff’s attorney, within
wenty days after service of the summons exclusive of the day
of service, a notice of appearance, [or] a copy of [a demurrer
wr of J an answer or a notice of motion raising an objection to the
complaint in point of law. [A notice or pleading, so served,
nust be subscribed by the defendant’s attorney, who must add
‘o his signature his office address, with the particulars prescribed
n section 417 of this act, concerning the office address of the
olaintiff’s attorney.] A voluntary general appearance of the
lefendant is equivalent to personal service of the summons upon

um. cry

[Code § 421, first sentence, substituting notice of motion on the pleadings
‘or demurrer. Last sentence is code § 424 without change. See Board’s
sroposed rule 133. Second sentence of code § 421 omitted as covered by rule
-elating to papers and their subscription.]

§ 238. Effect of defendant’s appearance. [A defendant,
upon whom the plaintiff has served, with the summons, a copy
of the complaint, must serve a copy of the demurrer or answer
upon the plaintiff’s attorney, before the expiration of the time,
within which the summons requires him to answer.] If a copy
of the complaint is not [so] served with the summons a notice of
appearance entitles [him] the defendant only to notice of the
subsequent proceedings unless [within the same time] with the
notice he demands the service of a copy of the complaint [as pre-
scribed in section 479 of this act].

(Code § 422 without material change, except that the first sentence has been
omitted and is covered under “answer.” The wording in the last sen-
tence has been simplified and the omitted portions are covered under
‘answer.” See Board’s proposed rule 134, which is identical.]
Civin Pricrice Act 173

§ 239. Appearance of guardian ad litem for infant. Where
a@ summons is served upon a guardian ad litem for an infant
residing out of the state or residing within the state but tempo-
rarily absent therefrom,[[; except that] the time within which
to appear [or answer] is twenty days after the service of the
summons exclusive of the day of service.

{Code § 473, last part of last sentence. See also Board’s proposed rule 136,
which is identical except that in the rule a reference is included to responding
to a “ summons to appear.”

§ 240. Death, removal or disability of attorney. If an
attorney dies, is removed or suspended or otherwise becomes dis-
abled to act at any time before judgment in an action, no further
proceeding shall be taken in the action against the party for whom
he appeared until thirty days after notice to appoint another at-
torney has been given to that party either personally or in such
manner as the court directs. [If after such notice given as herein
provided no attorney appears for the party notified within the
time specified in this section, the party serving the notice may
proceed with the cause and take a dismissal of the complaint or
a verdict, decision or judgment as the case requires, and it is not
necessary to give any further notice. ]

[Code § 65 without change, except that the last sentence is omitted because
it is too drastic a provision and does not afford sufficient protection to the
party to whom notice has been given under the first sentence. The last sen-
tence was added in 1913. See Board’s proposed rule 139.]

ARTICLE 27
PLEADINGS

GENERAL RULES OF PLEADING

Section 241. Pleadings; what to ‘contain.
242. Certain facts to be pleaded.
243. Allegations not denied; when to be deemed true.

AMENDED AND SUPPLEMENTAL PLEADINGS

244. Amendments of course.
245. Supplemental pleadings.
174 Reporr or Joinry Leocistarive Commirrer

: 246,
247,

248.
249,
250.

251.
252.

253.

254.
255.
256.

257.
258.
259.

260.
261.
262.
263.
264.
265.

266.
267.
268.

269.

270.
271.

BILL OF PARTICULARS

Account, how pleaded; bill of particulars.
Bill of particulars by order in any case.

VERIFICATION

Verification of pleading generally.

Verification of counterclaim.

Verification of answer where fraud is charged in
complaint.

Verification of dilatory defenses.

Verification in action against corporation to recover
on note or other evidence of debt.

Remedy for defective verification.

COMPLAINT

First pleading to be complaint.

Contents of complaint.

When interlocutory and final judgment may be
demanded.

Service of complaint.

Joinder of causes of action.

Pleading interest of the people.

ANSWER

Defendant’s pleading.

Contents of answer.

Pleading several defenses or counterclaims.
Time within which to answer or appear.
Controversy between defendants.

Defense of contributory negligence.

COUNTERCLAIMS

Counterclaim defined.

Rules respecting the allowance of counterclaims.

Counterclaim when defendant is sued in a repre
sentative capacity.

Counterclaim when plaintiff is an executor or
administrator.

When defendant to demand affirmative judgment.

New parties set up in counterclaim.
Civi, Practics Act 175

REPLY

272. Contents of reply.
273. Service of reply.
274. Compelling reply.

CONSTRUCTION OF PLEADINGS

275. Construction of pleading.
276. Construction of allegations in verified pleadings.

OBJECTIONS TO PLEADINGS

277. Demurrer abolished; objections to pleadings, how
taken.

278. Certain objections; when waived.

279. Certain objections not waived.

280. Objections; how stated.

281. Objections to pleadings; election of remedies.

282. Effect of serving answer or reply pending a motion.

283. Pleading after disposition of motion.

284. Disposition of points of law.

GENERAL RULES OF PLEADING

§ 241. Pleadings; what to contain. Every pleading shall
contain a plain and concise statement of the material facts,
without unnecessary repetition, on which the party pleading re
lies, but not the evidence by which they are to be proved.

[This is part of Board rule 141, derived from English practice, order 19,
r. 4 pt., which reads:

“ very pleading shall contain, and contain only, a statement in a summary
form of the material facts on which the party pleading relies for his claim
or defense, as the case may be, but not the evidence by which they are to
be proved.”

Also from New Jersey practice (1912, amended 1913), r. 17 pt., which
reads:

“All pleadings must contain a plain and concise statement of the issuable

facts on which the pleader relies (and no others) but not of the evidence by
' which they are to be proved.” ;

The provision that the pleading shall “contain only ” a plain and concise
statement, etc., is omitted from committee’s proposed ‘section.

The clause regarding admissions and denials in. Board rule 141 is from
New Jersey practice (1912), r. 33 pt., as follows:
176 Rerort or Jornt Leaisuarive ComMitrreE

“Express admissions and denials must be direct, precise, specific and not
argumentative, hypothetical or in the alternative.”

The committee has not adopted this provision. It is an unnecessary inno-
vation as an express rule of pleading. An admission or denial which is in-
definite or uncertain may be corrected by motion.

The section proposed by the committee is a substitute for similar provi-
sions of the Code in §§ 481, 500 and 514. Code § 518 omitted as unnecessary.

The Board in note 212 calls attention to the interesting fact that the legis-
lature in 1904 amended the sections of the Code relating to the contents of
complaint, answer and reply, to read: “A plain, precise and unequivocal
statement,” but restored the former language as above indicated in 1905.

It will also be noticed that the provision from New Jersey relating to
admissions and denials, contains the word “ precise” which was abandoned
after a year’s trial in this state.

The rule as prepared by the Board does not contain the provision relating
to “unnecessary repetition ” in connection with the general statement as to
the manner in which facts should be alleged. We have retained it in respect
of the pleading as a whole, and by proposed rule expressly stated the method
whereby allegations in the statement of one cause of action may be incor-
porated by reference in another cause of action.]

' § 242. Certain facts to be pleaded. The defendant or plain-
tiff, as the case may be, shall raise by his pleading all mat-
ters which show the action or counterclaim not to be maintainable,
or that the transaction is either void or voidable in point of law,
and all such grounds of defense or reply, as the case may be, which
if not raised would be likely to take the opposite party by surprise
or would raise issues of fact not arising out of the preceding plead-
ings, as, for instance, fraud, statute of limitations, release, pay-
ment, performance, facts showing illegality either by statute, com-
mon law or statute of frauds. The application of this section shall
not be confined to the instances enumerated.

[Board rule 147, derived from English practice, order 19, r. 15, almost ver-
batim, “ must” being changed to “shall”. The last sentence is new.

This section confirms a rule of pleading as fixed by the courts. Under
existing practice a defendant is always bound to plead affirmatively any mat-
ter which the plaintiff is not required to negative in his complaint, if he
wishes to rely upon such matter.]

§ 243. Allegation not denied; when to be deemed true. Each
material allegation of the complaint not controverted by the
answer, and each material allegation of new matter in the answer
not controverted by the reply where a replv is required, must be
taken as true for the purposes of the action[[, be taken as true].
Civit, Practice Act 177

[But] An allegation of new matter in the answer to which a reply
is not required, or of new matter in a reply, is to be deemed con-
troverted by the adverse party, by traverse or avoidance, as the
case requires.

[Code § 522, same as Board rule 149, except that the Board rule omits the
words “by traverse or avoidance, as the case requires.”]

AMENDED AND SUPPLEMENTAL PLEADINGS

§ 244. Amendments of course. Within twenty days after
a pleading, or the answer, demurrer] or reply thereto, is
served, or at any time before the period for answering it expires,
the pleading may be once amended by the party, of course, without
vosts and without prejudice to the proceedings already had. But
if it is made to appear to the court that the pleading was amended
for the purpose of delay and that the adverse party will thereby
lose the benefit of a term for which the cause is or may be noticed,
the amended pleading may be stricken out, or the pleading may be
restored to its original form, and such terms imposed as the court
deems just. .

[Code § 542, omitting reference to “demurrer”. Board rule 167 was pro-
posed as a substitute for § 542.]

§ 245. Supplemental pleadings. Upon the application of
‘either party, the court may, and in a proper case must, upon
such terms as are just, permit him to make a supplemental com-
plaint, answer or reply alleging material facts which occurred
after his former pleading or of which he was ignorant when it
was made, including the judgment or decree of a competent court
rendered after the commencement of the action determining the
matters in controversy, or a part thereof. The party may apply
for leave to make a supplemental pleading, either in addition to
or in place of, the former pleading. In the former event, if the
application is granted, a provisional remedy or other proceeding
already taken in the action, is not affected by the supplemental
pleading; but the right of the adverse party to have it vacated or
set aside depends upon the cases presented by the original and
supplemental pleadings. ‘

[Code § 544. See Board rule 168.]
es
178 Report or Joint Lecisuative ComMirrer

BILL OF PARTICULARS

§ 246. Account, how pleaded; bill of particulars. It is
not necessary for a party to set forth in a pleading the items of an
account therein alleged; but in that case, he must deliver to the ad-
verse party, within ten days after a written demand thereof, a
copy of the account, which, if the pleading [is] be verified, must be
verified by his affidavit to the effect that he believes it to be true;
or, if the facts are within the personal knowledge of the agent or
attorney for the party, or the party is not within the county where
the attorney resides, or capable of making the affidavit, by the
affidavit of the agent or attorney. If he fail so to do, he is pre
cluded from giving evidence of the account. The court, or a
judge authorized to make an order in the action, may direct the
party to deliver a further account where the one delivered is
defective.

[Code § 531, first two sentences. See Board rule 169.]

§ 247. Bill of particulars by order in any case. Upon appli-
cation in any case, the court, or a judge authorized to make an order
in the action, [may,] upon notice, may direct a bill of the par-
ticulars of the claim of either party to be delivered to the adverse
party, and in case of default the court shall preclude him from
giving evidence of the part or parts of his affirmative allegation
of which particulars have not been delivered.

[Code § 531, last sentence, without change.] 5

VERIFICATION

§ 248. Verification of pleading generally. Where a pleading
is verified, each subsequent pleading, except [a demurrer, or]
the general answer of an infant by his guardian ad tem and
except as otherwise specially prescribed by statute, must also be
verified. But the verification may be omitted, in a case where
it is not otherwise specially prescribed by law, where the party
pleading would be privileged from testifving as a witness con-
cerning an allegation or denial contained in the pleading. [A
pleading cannot be used, in a criminal prosecution against the
patty, as proof of a fact admitted or alleged therein. J

[Code § 523, amended as indicated. See Board rule 171. The last sentence
of the Code section is to be included in the Code of Criminal Procedure.]
Civin Pracrice Acr 179

§ 249. Verification of counterclaim. Where the complaint
is not verified and the answer sets up a counterclaim and also
a defense by way of denial or avoidance, the [affidavit of] veri-
fication may be made to refer exclusively to the counterclaim,
and the provisions of statute or rules relating to the construction
of the allegations, their effect, the person by whom the verification
is to be made and the form of the verification apply to the counter-
claim as if tt were [In that case, the last three sections are ap-
plicable to the affidavit and the counterclaim, as if the latter was]
a separate pleading.

[Code § 527, without change of substance. See Board rule 173.]

§ 250. Verification of answer where fraud is charged in
complaint. A defendant is not excused from verifying his answer
to a complaint charging him with having confessed or suf-
fered a judgment, [or] executed a conveyance, assignment or
other instrument, or transferred or.delivered money or personal
property, with intent to hinder, delay or defraud his creditors; or
with being a party or privy to such a transaction by another per-
son, with like intent towards the creditors of that person; or with
any fraud whatever affecting a right or the property of another.

[Code § 529. See Board rule 174, except that the Board omitted the words
“right or the property of ” in last clause.]

§ 251. Verification of dilatory defenses. A defense which
does not involve the merits of the action shall not be pleaded unless
it is verified [as prescribed in title second of this chapter].

[Code § 513. See Board note 246.]

§ 252. Verification in action against corporation to recover
on note or other evidence of debt. In an action against
a foreign or domestic corporation to recover damages for the
non-payment of a promissory note, or other evidence of debt,
for the absolute payment of money, upon demand, or at a par-
ticular time, [an order, extending the time to answer or demur,
shall not be granted, except by the court, upon notice to the
plaintiffs attorney. In such an action, unless the defendant
serves, with a copy of his answer or demurrer, a copy of an order
of a judge, directing that the issues presented by the pleadings be
tried, the plaintiff may take judgment, as in case of default in
pleading, at the expiration of twenty days after service of a copy
180 Rervorr or Jornt Lecisuative CoMMITTEE

of the complaint, either personally with the summons, or upon the
defendant’s attorney, pursuant to his demand therefor; or, if the
service of the summons was otherwise than personal, at the expira-
tion of twenty days after the service is complete] the answer must
be verified. .

[Code § 1778, amended as indicated. The provision as to “ extension of
time” is covered under that subject in General Practice Provisions. The
committee believes that the technical provisions of § 1778 should be repealed.
An order allowing a corporation to defend such an action is usually granted
as a matter of course and upon proof no stronger than a verification.]

§ 253. Remedy for defective verification. The remedy for
a defective verification of a pleading is to treat the same as an
unverified pleading. Where the copy of a pleading is served
without a copy of a sufficient verification, in a case where the ad-
verse party is entitled to a verified pleading, he may treat it as
a nullity, provided he gives notice, with due diligence, to the at-
torney of the adverse party, that he elects so to do.

[Code § 528, verbatim. Board rule 177, verbatim.]

COMPLAINT

§ 254. First pleading to be complaint. The first pleading,
on the part of the plaintiff, is the complaint.
[Code § 478, without change.]}

§ 255. Contents of complaint. The complaint must contain:

1. The title of the action, specifying the name of the court in
which it is brought; if it is brought in the supreme court, the name
of the county which the plaintiff designates as the place of trial;
and the names of all the parties to the action, plaintiff and de
fendant.

2. A [plain and concise] statement of [the facts constituting]
each cause of action [without unnecessary repetition].

3. A demand of the judgment to which the plaintiff supposes
himself entitled.

[Code § 481, amended as indicated to conform to general section on con-
tents of pleading. See Board rule 178.]

§ 256. When interlocutory and final judgment may be
demanded. In an action triable by the court without a jury,
Civit Practice Act 181

the plaintiff [may], in a proper case, may demand an interlocu-
tory judgment and also a final judgment, distinguishing them
clearly.

[Code § 482, without change.]

§ 257. Service of complaint. A copy of the complaint may
be served with the summons. If a copy of the complaint is not
delivered to a defendant at the time of the delivery of a copy of the
summons to him, either within or without the state, his attorney
[may], at any time within twenty days after the service of the
summons is complete, may serve upon the plaintiff’s attorney a
written demand of a copy of the complaint, which must be served
within twenty days thereafter. The demand may be incorporated
into the notice of appearance. [But] Where the same attorney
appears for two or more defendants, only one copy of the com-
plaint need be served upon him[[; and if, after service of a copy of
the complaint upon him, as attorney for a defendant, he appears
for another defendant, the last defendant must answer the com-
plaint within twenty days after he appears in the action]. If the
plaintiff's attorney fails to serve a copy of the complaint the de-
fendant may apply to the court for a dismissal of the com-
plaint.

[Code § 479. The first sentence is the first sentence of Code § 419, without
change.

The last sentence is Code § 480, without change, except the words “as
prescribed in the last section” which are omitted as unnecessary.

The clause in brackets in next to last sentence is included in subsequent
section.

This section as here amended is Board rule 179.]

§ 258. Joinder of causes of action. The plaintiff may unite
in the same complaint two or more causes of action, whether
they are such as were formerly denominated legal or equitable, or
both, where they are brought to recover as follows:

1. Upon contract, express or implied.

2. For personal injuries, except libel, slander, criminal con-
versation or seduction.

3. For libel or slander.

4. For injuries to real property.

5. Real property in ejectment, with or without damages for the
withholding thereof.
182 Report or Jornt Leeisuatrve CoMMITTEE

6. For injuries to personal property...

7. Chattels, with or without damages for the taking or deten-
tion thereof.

8. Upon claims against a trustee, by virtue of a contract, or by
operation of law.

9. Upon claims arising out of the same transaction, or trans-
actions connected with the same subject of action, [and] whether
or not included within one or more of the [foregoing] other sub-
divisions of this section.

10. For penalties incurred under the [forest, fish and game]
conservation law.

11. For penalties incurred under the agricultural law.

12. For penalties incurred under the public health law.

[ButJ It must appear upon the face of the complaint that all
the causes of action so united belong to one of the foregoing sub-
divisions of this section; that they are consistent with each other;
[and, except as otherwise prescribed by law, that they affect all
the parties to the action;] and it must appear upon the face of
the complaint, that they do not require different places of trial.

A provision of statute authorizing a particular action, or regu-
lating the practice or procedure therein, shall not be construed
to prevent the plaintiff from wniting in the same complaint two
or more causes of action pursuant to this section.

[Code § 484, amended. Board rule 180 is as follows:

“Joinder of causes of action. Subject to these rules, the plaintiff may
unite in the same action several causes of action whether against the de-
fendants jointly, severally or in the alternative; but if it appear to the
court that any such causes of action cannot be conveniently tried or disposed
of together, the court may order separate trials of any of such causes of
action to be had or may strike out any alleged cause of action or may make
such other order as may be necessary or expedient.”

Jn view of the adoption of Board rules enlarging the possible parties to an
action, including the right of two or more plaintiffs claiming in severalty
against the same defendant, it is necessary to eliminate from § 484 the words
“and except as otherwise prescribed by law that they affect all the parties
to the action.”

Board rule 180 is almost verbatim, English practice, order 18, r. 1.

The practice in England in regard to the joinder of causes of action is much
broader than in New Jersey, as « comparison of the rules of the two juris-
dictions will indicate.

“The transactions referred to in sections four and six of the Practice Act
(1912), include any transactions which grew out of the subject matter in
regard to which the controversy has arisen; as, for instance, the failure of
a bailee to use the goods bailed for the purpose agreed, and also an injury
to them by his fault or neglect; the breach of a covenant for quiet enjoyment,
Crvit Practice Act 183

by the entry of the lessor, and also a trespass to goods committed in the
course of the entry; or several torts committed simultaneously as a battery
accompanied by slander. (N. J. P. (1912), r. 13.)

The plaintiff may join separate causes of action against several defendants
if the causes of action have a common question of law or fact and arose out
of the same transaction or series of transactions.” (N. J. P. [1912], § 6 pt.)

The N. J. practice act, § 11, provides that “ subject to rules, the plaintiff
may join any causes of action.” It will be observed, however, that the rule
itself limits such joinder. Last paragraph is inserted to cover Code § 1687,
relating to joinder of real property actions with others, and Code § 1689, as
to joinder of replevin actions with others, and the provision is made general.
Code §§ 1687 and 1689 are therefore omitted as covered. See Code §§ 1687
and 1689, as follows:

Ҥ 1687. Joinder of real actions with others. Nothing contained in this
title is to be construed, as to prevent the plaintiff from uniting in the same
complaint two or more causes of action, in any case specified in section 484
of this act.”

Ҥ 1689. Joinder of action with others. Nothing in this title is to be
so construed, as to prevent the plaintiff from uniting, in the same complaint,
two or more causes of action, in any case specified in section 484 of this
act.”]

§ 259. Pleading interest of the people. [Any person may
be made a defendant who has or claims an interest in the
controversy adverse to the plaintiff or who is a necessary party
defendant for the complete determination or settlement of a ques-
tion involved therein, except as otherwise expressly prescribed in
this act. In any action brought affecting real estate upon which
the people of the state of New York have or claim to have a lien
under the transfer tax act, the said people of the state of New
York may be made a party defendant in the same manner as a
private person, but where] Where the people of the state of New
York are made a party defendant [as herein provided,] in an
action affecting real property, the complaint shall set forth [in
addition to the matters required to be set forth by the code of
civil procedure, ] detailed facts showing the particular nature of
the interest in or lien on the real property and the reason for
making the people a party defendant, and where the lien is one
under the transfer tax act, the name or names of the decedent or
decedents against whose estate there is an unpaid transfer tax, the
place of residence of decedent at the time of death, the heirs at
law and next of kin of decedent and if decedent left none that fact
shall be stated, whether decedent died testate or intestate, and
whether the estate of decedent has been administered, and if so
where; and if not administered, such fact[s] shall be stated; and
also that the people [of the state of New York] are made a party
184 ReErorr oF Joint Leaistative CoMMITTEE

defendant for no other reason than the lien of [said] such trans-
fer tax. Upon failure to state such facts, the complaint shall be
dismissed as to the people of the state of New York. [In such
a case the summons must be served on the attorney-general, who
may appear in behalf of the people.]

[Code § 447, amended to conform to Board rule 182. The first part of
section is included under “ Parties.” The rule supersedes the following pro-
visions of the Code relating to complaints where the people are a party in
actions for partition, dower and mortgage foreclosure, whether the interest
of the state be a transfer tax lien or otherwise. See Code §§ 1594, 1598, 1627 \

ANSWER

-§ 260. Defendant’s pleading. The only pleading, on the part
of the defendant, is [either a demurrer or] an answer.

[Code § 487, eliminating demurrer. See the first sentence of Board rule
183. The Board states that demurrer has been abolished in the Federal]
equity practice, the English practice, the New Jersey practice and in many
other jurisdictions, relief being provided for by the answer. The effect of
a demurrer as involving the tial of an issue of law has been practically
abolished in this state.

Demurrer may be brought on for hearing in three ways — under the original
provision of the Code, which requires that the issue be noticed for trial at
special term, put on the calendar and reached in regular order; under § 547
of the Code which authorizes a motion for judgment upon the pleadings;
under § 976 of the Code which provides that the demurrer may be
brought on and tried as a contested motion. Keyes v. Lestershire Heights
Realty Co. (1916), 173 App. Div. 336; National Park Bank v. Billings, 144
App. Div. 536; Kramer v. Barth, 79 Mise. 80.

Upon such a motion under § 547 defendant may be allowed to answer, on
terms. Gilleran v. Colby, 164 App. Div. 608.

Under the present practice if the issues raised by a demurrer are disposed
of at special term on motion the successful party only recovers motion costs
and does not get the regular trial costs. Taishoff v. Elkema, 171 N. Y. 295.

It has been held that a plaintiff is not entitled to a judgment dismissing
w counterclaim on a motion under § 547 where other issues remain undeter-
mined. Sayre v. Progressive Construction & Leasing Co., 159 App. Div. 799.

But it does not seem that this rule applies to a motion under § 976. It
is thus apparent that the delays resulting from demurrer are practically
eliminated by recent amendments to the Code.]

§ 261. Contents of answer. The answer of the defendant
must contain:

1. A general or specific denial of each material allegation of
the complaint controverted by the defendant, or of any Knowledge
or information thereof sufficient to form a belief.
Crvit Practice Act 185

2. A statement of any new matter constituting a defense or:
counterclaim[, in ordinary and concise language without repeti-
tion]. Subject to statute and rules the answer also may contain

‘ objections to the complaint in point of law.

[Code § 500, amended to conform to general provision relating to contents
of pleading. The last sentence is new, and is inserted in view of the abolition
of demurrer and the method proposed in the article on “ Objections to Plead-
ings” for disposing of questions of law. See Board rule 183.

It has been suggested to the committee that the words “but such state-
ment of new matter shall not contain any denial of any allegation of the
complaint,” be added after the word “counterclaim” in subd. 2 of the
above section. The object of the amendment is to change a rule of plead-
ing adopted in certain cases in the First and Second Departments of the
Appellate Division. The committee believes the suggestion should be con-
sidered by the residents of all departments before final action is taken.]

§ 262. Pleading several defenses or counterclaims. <A
defendant may set forth in his answer as many defenses or
counterclaims, or both, as he has, whether they are such as were
formerly denominated legal or equitable. [[Each defense or
counterclaim must be separately stated, and numbered.]_ Unless
[it] the answer is interposed as an answer to the entire complaint,
it must distinctly refer to the cause of action which it is intended
to answer. 1 bo ES

A partial defense may be set forth, [as prescribed in the last sec-
tion ;J but it must be expressly stated to be a partial defense to
the entire complaint, or to one or more separate causes of action
therein set forth. [Upon a demurrer thereto, the question is,
w] Whether it is sufficient for that purpose presents a question of
law, upon seasonable objection taken thereto. Matter tending
oniy to mitigate or reduce damages[[, in an action to recover
damages for the breach of a promise to marry, or for a personal
injury, or an injury to property,] is a partial defense, within the
meaning of this section.

[Code §§ 507 and 508 combined. The first paragraph is § 507, without
change of substance, except that the second sentence in brackets is omitted
and covered in general provisions relating to pleadings. The second para-
graph is Code § 508, amended as indicated.

See Board rule 185.

The last sentence has been amended in accordance with Board rule 185, so
as to make matter tending only to mitigate or reduce damages a partial
defense in all cases.

The Board contends that this is substantially the law as derived from the
decisions. ]
186 Revorr or Jornt Leaisnative CoMMITTEE

§ 263. Time within which to answer or appear. A defend-
ant upon whom the plaintiff has served[[, with the summons, a
copy of the complaint,]] must serve a copy of his [demurrer or]
answer upon the plaintiff’s attorney within twenty days thereafter
[before the expiration of the time within which the summons
requires him to answer]. Jf after service of a copy of the com-
plaint upon [him as] an attorney [for a defendant], he appears
for another defendant, the latter must answer the complaint
within twenty days after [he appears] such appearance in the
action. Except where an order of arrest can be granted only by
the court, a defendant arrested before answer has twenty days
after the arrest in which to answer the complaint[[; and judgment
must be stayed accordingly].

[Code § 422, first sentence; Code § 479, last clause of last sentence, amended

as indicated. Code § 520, last sentence. Code § 566, omitting last clause as
unnecessary. See Board rule 189.]

§ 264. Controversy between defendants. Where the judg-
ment may determine the ultimate rights of two or more defendants
as between themselves, a defendant who requires such a determina-
tion must demand it in his answer, and [must] at least twenty
days before the trial must serve a copy of his answer upon the
attorney for each of the defendants to be affected by the determi-
nation, and personally, or as the court or judge may direct, upon
defendants so to be affected who have not duly appeared therein
by attorney. The controversy between the defendants shall not
delay a judgment to which the plaintiff is entitled, unless the
court otherwise directs.

[Code § 521, Board rule 190, except that the Board change “ must” to
“shall” in two instances.]

§ 265. Defense of contributory negligence. On the trial
of [any] an action to recover damages for causing death, the con-
tributory negligence of the person killed shall be a defense to be
pleaded and proven by the defendant.

[Code § 841b, Board rule 191, except the Board omitted the words “ and
proven’, This section is inserted also in Decedent Estate Law § 131.]
Civiz Practice Act 187

COUNTERCLAIMS

§ 266. Counterclaim defined. [The] A counterclaim, except
as otherwise provided by statute [specified in the last sec-
tion], must tend[, in some way,] to diminish or defeat the plain-
tiff’s recovery, and must be one of the following causes of action
against the plaintiff, or, in a proper case, against the person whom
he represents, and in favor of the defendant, or one or more de-
fendants, between whom and the plaintiff or the plaintiff and
another person or persons alleged to be liable a separate judgment
may be had in the action: ,

1. A cause of action arising out of the contract or transaction
set forth in the complaint as the foundation of the plaintifi’s claim
or connected with the subject of the action ;

2. In an action on contract, any other cause of action on con-
tract existing at the commencement of the action.

[Code § 501, amended to conform to the change in practice by allowing
counterclaims against the plaintiff and third persons to be interposed.]

§ 267. Rules respecting the allowance of counterclaims.
[But] The counterclaim, specified in subdivision second of the
last section, is subject to the following rules:

1. If the action is founded upon a contract which has been
assigned by the party thereto, other than a negotiable promissory
note or bill of exchange, a demand existing against the party
thereto or an assignee of the contract at the time of the assign-
ment thereof, and belonging to the defendant, in good faith,
before notice of the assignment, must be allowed as a counterclaim
to the amount of the plaintiff’s demand, if it might have been so
allowed against the party, or the assignee, while the contract be-
longed to him.

2. If the action is upon a negotiable promissory note or bill of
exchange which has been assigned to the plaintiff after it became
due, a demand existing against a person who assigned or trans-
ferred it after it became due must be allowed as a counterclaim
to the amount of the plaintiff’s demand, if it might have been so
allowed against the assignor while the note or bill belonged to him.

3. If the plaintiff is a trustee for another, or if the action is in
the name of a plaintiff who has no actual interest in the contract
upon which it is founded, a demand against the plaintiff shall not
be allowed as a counterclaim; but so much of a demand existing
against the person whom he represents, or for whose benefit the
188 Report oF Joint LecGisLativE CoMMITTEE

action is brought, as will satisfy the plaintiff’s demand, must be
allowed as a counterclaim, if it might have been so allowed in an
action brought by the person beneficially interested.

[Code § 502, without change.]

§ 268. Counterclaim when defendant is sued in a repre-
sentative capacity. In an action against an executor or an
administrator or other person sued in a representative capacity,
the defendant may set forth as a counterclaim a demand belong-
ing to the decedent, or other person whom he represents, where the
person so represented would have been entitled to set forth the
same in an action against him.

[Code § 505, without change.]

§ 269. Counterclaim when plaintiff is an executor or admin-
istrator. In an action brought by an executor or adminis-
trator in his representative capacity, a demand against the dece-
dent. belonging at the time of his death to the defendant, may
be set forth by the defendant as a counterclaim as if the action
had been brought by the decedent in his life-time; and if a bal-
ance is found to be due to the defendant, judgment must be ren-
dered therefor against the plaintiff in his representative capacity.
Execution can be issued upon such a judgment only in a case
where it could be issued upon a judgment in an action against the
executor or administrator.

[Code § 506, without change.]

§ 270. When defendant to demand affirmative judgment.
Where the defendant deems himself entitled to an affirmative
judgment [against the plaintiff] by reason of a counterclaim
interposed by him, he must demand the judgment in his answer.

[Code § 509. The words “against the plaintiff” are omitted in view of

the extension of counterclaim to include those affecting other defendants
and new parties. See next section.]

§ 271. New parties set up in counterclaim. Where a defend-
ant sets up any counterclaim which raises questions between
himself and the plaintiff along with any other persons, he shall
set forth the names of all the persons who, if such counterclaim
were to be enforced by cross-action, would be defendants to such
Civiz Practice Act 189

cross-action. Where any such person is not a party to the action
he shall be summoned to appear by being served with a copy of
the answer. A person not a party to the action who is so served
with an answer becomes a defendant in the action as if he had
been served with the summons. Any such person named in an
answer as a party to a counterclaim may reply thereto within the
time within which a defendant might serve an answer to a com-
plaint, or he may serve a notice of appearance on the party inter-
posing the counterclaim.

[New. See Board rule 193, derived from English practice, order 21, rr. 11,
12, 13 and 14, in substance. See alsq New Jersey practice, § 12, noted under
Board rule 192.]

REPLY

§ 272. Contents of reply. Where the answer contains a
counterclaim, the plaintiff[[, if he does not demur,] may reply
to the counterclaim. The reply must contain a general or specific
denial of each material allegation of the counterclaim contro-
verted by the plaintiff, or of any knowledge or information thereof
sufficient to form a belief; and it may set forth [in ordinary and
concise language, without repetition, ]] new matter not inconsistent
with the complaint constituting a defense to the counterclaim.
A reply may contain two or more distinct avoidances of the same
defense or counterclaim. Subject to statute and rules the reply
may also contain objections to a defense or counterclaim in point
of law.

[Code § 514, amended to conform to general provision relating to contents
of pleading. Next to last sentence is Code § 517, first clause. The last
sentence is new, and is inserted in view of the method proposed in the article
on “Objections to Pleadings” for disposing of questions of law.” It has
been suggested to the committee that the words “but such statement of new
matter shall not contain any denial of any allegation of the complaint ” be
added after the words “ counterclaim ” at the end of the second sentence of
the above section. See similar suggestion in note to § 462, ante. The com-
mittee submits the suggestion for further consideration.]

§ 273. Service of reply. A copy of the reply shall be served
on the attorney for the defendant within twenty days after service
of a copy of the answer.

{Adapted from last sentence of Code § 520.]
190 Revorr oF Joint Leqistative CoMMITTEE

§ 274. Compelling reply. Where an answer contains new
matter constituting a defense by way of avoidance, the court
[may], in its discretion, on the defendant’s application, may
direct the plaintiff to reply to the new matter. In that case the
reply and the proceedings upon failure to reply are subject to the
same rules as in the case of a counterclaim.

[Code § 516, verbatim. Board rule 196, the first two clauses.]

CONSTRUCTION OF PLEADINGS

§ 275. Construction of pleadings. [The allegation of a
pJ Pleadings must be liberally construed with a view to substantial
justice between the parties.

[Code § 519, amended so that the rule of liberal construction shall apply
to the whole pleading. See first clause of Board rule 198.]

§ 276. Construction of allegations in verified pleadings.
The allegations or denials in a verified pleading must, in form,
be stated to be made by the party pleading. Unless they are
therein stated to be made upon the information and belief of the
party, they must be regarded for all purposes, including a erimi-
nal prosecution, as having been made upon the knowledge of the
person verifying the pleading. An allegation that the party has
not sufficient knowledge or information to form a belief with
respect to a matter, must, for the same purposes, be regarded as
an allegation that the person verifying the pleading has not such
knowledge or information.

[Code § 524, verbatim. Board rule 199, except that “ must” is changed to
* shall.”

OBJECTIONS TO PLEADINGS

§ 277. Demurrer abolished; objections to pleadings, how
taken. The demurrer is abolished. An objection to a plead-
ing in point of law, for a ground appearing on the face of the
pleading, may be taken by motion or by the answering pleading;
except that objections, to be defined by the rules and relating only
to form and manner of pleading, may be taken by motion only if
the rules so provide.

[New. Supersedes Code §§ 493, 494. Demurrer has been abolished in
England and New Jersey and its abolition in this state is recommended by the
Civit Practice Act , 191

Board, the New York State Bar Association and the New York County
Lawyers Association.

in ‘substance, this is the New Jersey provision. See N. J. Supreme Court
rules (1912, amended in 1913), which reads, in part, as follows:

“Any pleading may be struck out on motion on the ground that it discloses
no cause of action, defense or counterclaim, respectively. * * * In lieu of
a motion to strike out, the same objection and any point of law (other than
a question of pleadings or practice) may be raised in the answering plead-
ings.” (Rule 26, pt.)

“Objections to pleadings other than those provided for in rule 26, above,
shall be made by motion.” (Rule 27, pt.)

“Pleas to the jurisdiction and pleas in abatement are abolished. In lieu
thereof, objections shall be made by motion. The evidence necessary to de-
termine the question may be taken by depositions, or as the court may
direct.” (Rule 28.)

The distinctions between the proposed section and the New Jersey practice
are as follows: The dilatory pleas and pleas in abatement may be taken,
under the proposed section, by answer or reply, as well as by motion. In
New Jersey they may be taken by motion only. As points of law taken by
the pleadings may be disposed of before trial, under a subsequent section,
nothing is gained by requiring a separate motion. Furthermore, the New
Jersey practice authorizes the issues on such pleas, where the objection does
not appear on the face of the objectionable pleading, to be tried out on affi-
davits. The advisability of this method is not apparent.

The form of the motion to present objections is left to rules. Uniform
relief upon disposing of objections to pleadings cannot well be stated in the
statute. For instance, the objection that there is a defect or misjoinder of
parties will not be a ground for dismissing a complaint, if another provision
of the committee’s work be adopted.

The reference to certain objections which may be taken by motion only,
if the rules so provide, is intended to include objections on the ground that
a pleading is indefinite, uncertain and similar objections.]

§ 278. Certain objections; when waived. An objection
on either of the following grounds, appearing on the face of
a pleading, is waived unless taken by motion or by the answering
pleading, or, if not so appearing, unless taken by such answering
pleading:

1. As to the complaint: (a) that the court has not jurisdic-
tion of the person of the defendant in cases where jurisdiction
may be acquired by his consent; (b) that the plaintiff has not
legal capacity to sue; (c) that another action is pending between
the same parties for the same cause; (d) that there is a misjoinder
of parties plaintiff; (e) that there is a defect of parties, plaintiff
or defendant; (f) that causes of action have been improperly
united.
192 Rerorr oF Jorwt Lzeoistative ComMmiItrrEr

2. As to a counterclaim: (a) that the defendant has not legal
capacity to recover upon the same; (b) that another action is
pending between the same parties for the same cause; (c) that the
counterclaim is not one which may be properly interposed in the
action.

[Derived from Code §§ 488, 495, 498 and 499. The right to object to a
pleading in some manner, on the grounds stated in §§ 488 and 495, exists
without express provision therefor but in any event is preserved by the pro-
posed section at the beginning of this article. After abolishing demurrer the
remaining essential is that the dilatory pleas and pleas in abatement be
deemed waived unless claimed before trial. The proposed section accomplishes
this. However, it extends the waiver to the objections to a counterclaim
set forth in subdivisions 2, 3 and 4 of § 495. Those objections are not at
present waived by failure to demur. If a defendant is required to notify
plaintiff before trial that he intends to rely, for instance, on w claim that
another action is pending, there is no good reason why a plaintiff should not
notify the defendant that he intends to make a like objection to a counter-
claim.]

§ 279. Certain objections not waived. An objection as to
the jurisdiction of the court, except as otherwise provided in
the preceding section, and the objection that a complaint, or a
statement therein of a separate cause of action, or a counterclaim,
does not state facts sufficient to’ constitute a cause of action, or
that a defense is insufficient in law upon the face thereof, are not
waived by failure to raise the same before trial.

[New. Supersedes Code § 499.]

§ 280. Objections; how stated. An objection to a pleading
must be distinctly specified in the notice of the motion or in the
answering pleading by which it is taken. An objection under the
last section but one must point out specifically the particular defect
relied upon, except as otherwise provided in this section. An ob-
jection to a complaint, or to a separate statement therein of a cause
of action, or to a counterclaim, that it does not state facts suffi-
cient to constitute a cause of action, or that the court has not
jurisdiction of the subject of the action or counterclaim, or that
the court has not jurisdiction of the person of the defendant, or
that another action is pending between the same parties for the
game cause, or an objection to a defense that it is insufficient in
law upon the face thereof, may be so stated without further
particulars.

(New. Adapted from Code §§ 490 and 496.]
Crvit Pracrice Aot 193

§ 281. Objections to pleadings; election of remedies. Part
of the objections to the same pleading on points of law may
not be taken by motion and part by the answering pleading, nor the
same objection taken by both; but all objections which are allowed
by this article to be taken by motion or by the answering pleading,
except an objection which is not required to be raised before trial,
must be either presented by one motion or by such pleading, as the
party may elect. A party [may], however, may make a motion
directed to a specified cause of action, counterclaim or defense and
plead to a separate cause of action, counterclaim or defense with-
out taking any objection which might have been included in the
motion.

[First sentence derived from New Jersey practice (1912), r. 28, as follows:

“Every motion addressed to a pleading must present every cause of ob-
jection then existing.”

The last sentence is a substitute for Code § 492.]

§ 282. Effect of serving answer or reply pending a motion.
The service of an answer or reply to a pleading, or to a separate
cause of action, counterclaim or defense, to which a motion has
been addressed, shall be deemed an abandonment of the motion.
This section, however, shall not be deemed to authorize the service
of such answer or reply after the time therefor expires and before
the determination of the motion, without an order therefor.

[New.]

§ 283. Pleading after disposition of motion. If objections
to a pleading, presented by motion, be not sustained, the moy-
ing party may serve an answer or reply, or an amended answer
or reply where he has pleaded to a separate cause of action,
counterclaim or defense not affected by the motion, as a matter of
right, after the decision of the motion and before the expiration
of ten days after service of notice of the entry of the order decid-
ing the motion, unless the court shall be of the opinion, to be
stated in the order, that the objections are frivolous. Upon the
decision of a point of law, at trial or special term or in the appel-
late division or court of appeals, the court, in its discretion, also
may allow the party in fault to plead anew or amend, upon such
terms as are just.

[New. See Code § 497.]
7
194 Report oF Joint Leceisyuative ComMmirrEE

§ 284. Disposition of points of law. Any point of: law raised
by the pleadings may be brought on and tried at any term of court
as a contested motion. Any point of law relating to or raised
by the pleadings and not waived or disposed of before trial shall
be disposed of by the judge who tries the cause, at or after the
trial. Where the decision of a point of law, under the foregoing
provisions of this section or upon a motion addressed to a plead-
ing before service of the answering pleading, substantially dis-
poses of the whole action, or of any distinct cause of action, coun-
terclaim or defense, the complaint may be dismissed or such judg-
ment given or order granted as may be just.

[First sentence is the last sentence of Code § 976, in substance, adapted to
meet changes required by the abolition of demurrer. It covers the case of
an objection in point of law expressly taken by an answer or reply. The
second sentence is new and expresses the course to be taken where points
of law are not disposed of before trial. Dilatory pleas and certain pleas
in abatement are waived unless taken by a pleading or motion before trial;
hence the reference in such sentence to “points not waived.” The last
sentence is substantially from English order 25, r. 3, which reads as follows:

“Tf, in the opinion of the court or a judge, the decision of such point of
law substantially disposes of the whole action, or of any distinct cause of
action, ground of defense, set-off, counterclaim or reply therein, the court or
judge may thereupon dismiss the action or make such other order therein as
may be just.”]

ARTICLE 28
INTERPLEADER

Section 285. Action of interpleader.
286. Procedure in action of interpleader.
287. Interpleader in pending action.

§ 285. Action of interpleader. When any sum of money
‘ shall be due and payable under or on account of a contract and the
whole, or any part thereof exceeding fifty dollars in amount,
shall be claimed or demanded by adverse claimants [thereto],
the debtor may bring suit in any court having jurisdiction
thereof and of the parties demanding judgment of interpleader
and that the debtor be permitted to pay the amount of the debt
into court and that such debtor upon such payment into court be
discharged from any further liability to any of the parties to the
action.

[Code § 820a, first sentence, without change of substance.]
Crvit Practice Act 195

§ 286. Procedure in action of interpleader. When service
of the summons and complaint shall have been made upon
all [such] the claimants in.an action of interpleader based on a
contract under or on account of which a sum of money shall be
due and payable, where the whole or any part thereof exceeds fifty
dollars in amount, the plaintiff may make application, by petition
or upon affidavits for an order permitting and directing the plain-
tiff to pay the amount of the debt into court and that the plaintiff
upon the payment into court of the amount of the debt as required
by the order be discharged from any further liability to any of the
defendants in such action, and: the court, upon satisfactory proof
by affidavit or otherwise as the court may require of the facts al-
leged in the complaint and that the whole or part of the debt is
claimed adversely by the defendants without any collusion on the
part of the plaintiff and that the amount thereof is not in dispute,
may make such an order upon such terms as to costs and disburse-
ments payable out of the money so adversely claimed as to the ,
court may seem just; and upon the payment into court of the
amount of such debt and complying with the terms of such order,
the plaintiff shall stand discharged from any further liability to
any of the defendants in said action [upon] on account of such
debt and contract. Notice of such application, together with
copies of the papers upon which the same is made, shall be per-
sonally served on each of the defendants at least five and not more
than fifteen days before the return day thereof.

{Code § 820a, except first sentence, without change of substance. Board
rule 222, except time of service in last clause is omitted from rule.]

§ 287. Interpleader in pending action. A defendant against
whom an action to recover upon a contract or an action of
ejectment or an action to recover a chattel is pending may at any
time before answer upon proof by affidavit that a person not a
party to the action makes a demand against him for the same debt
or property without collusion with him may apply to the court
upon notice to that person and the adverse party for an order to
substitute that person in his place and to discharge him from lia-
bility to either, on his paying into court the amount of the debt
or delivering possession of the property or its value to such person
as the court directs; or, upon it appearing that the defendant dis-
putes in whole or in part the liability as asserted against him by
different claimants or that he has some interest in the subject-
matter of the controversy which he desires to assert, his applica-
‘196 Reporr oF Joint Leeistative ComMMITrEE

tion may be for an order joining the other claimant or claimants
as co-defendants with him in the action. The court, [may] in its
discretion, may make such order upon such terms as to costs and
payments into court of the amount of the debt or part thereof or
delivery of the possession of the property or its value or part
thereof as may be just, and thereupon the entire controversy may
be determined in the action.

[Code § 820, without change of substance. Board rule 223, verbatim.]

ARTICLE 29

DEPOSITIONS TAKEN AND TO BE USED
WITHIN THE STATE

Section 288. Deposition of a party or prospective party.
289. Deposition of a witness not a party.
290. Application for order to be regulated by rules;
limitations.
291. Physical examination.
292. Service of order for deposition.
293. Punishment for disobeying order.
294. Time and place of examination; attendance of per-
son to be examined.
295. Examination of person confined in prison.
296. Deposition by consent.
297. Manner of taking and return of deposition.
298. Deposition as evidence.
299. Conditions under which deposition may be read.
300. Effect of deposition.
801. Affidavits filed with deposition as evidence.
302. Where witness may be compelled to attend.

§ 288. Deposition of a party or prospective party. The

- deposition of a party to an action pending in a court of record,
-or of a person who expects to be a party to an action about to be

. brought in such a court, may be taken at his own instance or at
the instance of an adverse party, or by a coplaintiff or codefendant,
at any time before or during the trial [as prescribed in] subject
to this article and the rules.

(Code § 870, without change of substance, except that certain regulations
now in this article are to be transferred to rules.]
Crvit Practice Act 197

§ 289. Deposition of a witness not a party. The deposition
of a person not a party whose testimony is material and necessary
to a party to an action pending in a court of record, or to a person
who expects to be a party to an action about to be brought in such
a court by a person other than the person to be examined, [may]
also may be taken, [as prescribed in] subject to this article and
the rules.

[Code § 871, without change of substance, except that certain regulations
now in this articie are to be transferred to rules.]

§ 290. Application for order to be regulated by rules; limi-
tations. The matters to be shown upon an application for an
order to take a deposition shall be regulated by rules; but upon
the application for an order to take the deposition of the adverse
party, after issue joined and before trial, it shall not be necessary
to show the materiality of the expected testimony or the necessity
for such examination. This section shall not prevent the adoption
of a rule providing that the scope of the examination of a party
may be limited by the order.

[New. Supersedes as to parties, subd. 4 of § 872 of code, requiring an
applicant for an order to examine to show materiality.]

§ 291. Physical examination. In every action to recover dam-
ages for personal injuries, the court or judge, in granting an order
for the examination of the plaintiff before trial [may], if the
defendant apply therefor, may direct that the plaintiff submit to
a physical examination by one or more physicians or surgeons,
to be designated by the court or judge, and such examination
shall be had and made under such restrictions and directions as
to the court or judge shall seem proper. In any action brought
to recover damages for personal injuries, where the defendant
shall present to the court or judge satisfactory evidence that he
is ignorant of the nature and extent of the injuries complained of,
the court or judge shall order that such physical examination be
made; and if the party to be examined shall be a female she shall
be entitled to have such examination before physicians or sur-
geons of her own sex.

‘(Code § 873, part.]

§ 292. Service of order for deposition. An order for taking
a deposition shall prescribe the time of service of a copy thereof,
198 Reporr oF Jornt Lzcisuative ComMitrEeE

which must be made within the state, not more than twenty, nor
less than five days, before the time fixed for the examination,
unless special circumstances, making a different time of service
necessary, are shown by the applicant [in the affidavit], and that
fact is recited in the order. A copy of the order, and of the
papers [affidavit] upon which it was granted, must be served
upon the attorney for each party to the action, in like manner
as a paper in the action; or, if a party has not appeared in the
action, they must be served upon him as directed by the order.
If no action is pending, they must be personally served upon each
of the persons named therein as expected adverse parties.

[Code § 873, last sentence and § 875, without change of substance.]

§ 293. Punishment for disobeying order. Witness fees at
the rate prescribed by law in an action in the supreme court must
be paid or tendered when the order is served upon the party or
other person required to attend, unless a subpoena ts also served,
accompanied by payment of witness fees. If the party or person
so served fails to obey the order, his attendance may be compelled
and he may be punished in like manner and the proceedings
thereon are 'the same as if he failed to obey a subpoena issued
from the court in which the action is pending; or, if no action
is pending, from the court of which the judge is a member.

[Code § 874, without change, except as indicated.]

§ 294. Time and place of examination; attendance of per-
son to be examined. Upon proof by affidavit that service of a
copy of the order and of the affidavit has been duly made as
directed in the order, the judge or the referee must proceed to
take the deposition of the witness at the time and place specified
in the order. He may[, from time to time,] adjourn the exam-
ination, from time to time, to another day, and to another place,
which shall be within the same county unless the parties appearing
at the examination stipulate otherwise. [Sections eight hundred
and fifty-six, eight hundred and fifty-seven and eight hundred
and fifty-eight] Subdivisions three, four and five of section four
hundred and twenty-one of this act apply to the examination of a
party or a person expected to be an adverse party, taken as pre-
scribed in this article.

[Code § 876, amended as indicated.]
Crvin Practice Act 199

§ 295. Examination of person confined in prison. Where
the party or other person to be examined is confined in a prison
or jail within the state, under a sentence for a felony, that fact
must be shown upon the application [stated in the affidavit], and
his deposition may be taken [as prescribed in the foregoing sec-
tions,] as if he was not so confined, except that in such a case,
the granting or refusing the order, and, if granted, the appoint-
ment of a referee to take the testimony, is always in the discretion
of the judge. The order must require the production of the
prisoner by the person in charge of the prison or jail at the
prison or jail; but it may prescribe such regulations and restric-
tions with respect thereto as the judge deems proper.

[Code § 877, without change of substance.]

§ 296. Deposition by consent. The parties to an action may
stipulate in writing that the deposition of a competent witness,
to be used therein, may be taken before a judge or referee at a
time and place specified in the stipulation, either orally, or upon
interrogatories, to be agreed upon in like manner. The witness
may be subpoenaed to attend the examination, as upon a trial;
and the judge or referee may take his deposition as if an order
had been made by the court directing it to be so taken. [But]
This section does not apply to the examination of a person con-
fined in @ prison or jail within the state under sentence for a
felony [a case specified in section eight hundred and seventy-
seven of this act].

[Code § 879, without change of substance.]

§ 297. Manner of taking and return of deposition. The
examination of a party, or an expected party, except as otherwise
provided in this section, is subject to the same rules as if he was
examined upon the trial. The judge or referee, upon every
[other] examination taken as prescribed in this article, must
insert therein every answer or declaration of the person examined,
word for word, unless the parties consent or the order directs that
only the substance of the testimony be inserted [which either party
requires to be inserted]. The deposition, when completed, must
be carefully read to and subscribed by the person examined; must
be certified by the judge or referee taking it; and, within ten
days thereafter, must be filed in the office of the clerk, or if no
action is pending, in the office of the clerk of the county in which
200 Report oF Jownt Lecisuative ComMitTTEE

it was taken, together with the stipulation or order under which
it was taken, the affidavit upon which the order was granted, and
proof of the service of a copy of the order and of the affidavit.
If upon an examination before a referee the person examined
refuses to answer any question, the referee must report the fact
to the court or judge, who must determine whether the question
is relevant, and whether the witness is bound to answer it.

[Code § 880, amended as indicated.]

§ 298. Deposition as evidence. The deposition, or a certified
copy thereof, may be read in evidence by either party, at the
trial of, or upon the assessment of damages, by writ of inquiry,
or upon a reference, or otherwise, in the action or in any special
proceeding specified in the original affidavit or stipulation, or in
any other action or special proceeding thereafter brought between
the same parties, or between any parties claiming under them
or either of them, or, if no action or special proceeding is then
pending, in an ‘action or special proceeding thereafter brought
between the persons named in the original affidavit as expected
parties, or between persons claiming under them or either of them,
including the case where one of the parties is the executor of the
will or administrator of the estate of the witness and is given a
cause of action to recover damages for the death of the witness,
pursuant to section one hundred and thirty of the decedent estate
law [by reason of section nineteen hundred and two of this act].
[And] Except in the cases prescribed to the contrary in the neat
section [section eight hundred and eighty-two of this act], the
said deposition, or a certified copy thereof, may be read in evidence
by either party to the action or special proceeding in which it is
taken, and as between the defendant in such [said] action and the
legal representatives and privies in interest and estate of the
plaintiff, and as between the plaintiff and the legal representatives
and privies in interest and estate of the defendant, and as between
the legal representatives and privies in interest and estate of the
defendant and the legal representatives and privies in interest and
estate of the plaintiff.

[Code § 881, without change of substance. Included by board in evidence
law, § 39.]

, § 299. Conditions under which deposition may be read.
[But] Such a deposition, however, except that of a party, taken
Crvin Practice Act 901

at the instance of an adverse party, or a deposition taken in pur-
suance of a stipulation as prescribed in this article, shall not be
so read in evidence until it has been satisfactorily proved that
the witness is dead, or is unable personally to attend by reason of
his insanity, sickness or other infirmity, or that he is confined
in a prison or jail, or that he has been and is absent from the
state so that his atteudance could not with reasonable diligence
be compelled by subpoena.

[Code § 882. Included by board in evidence law, § 39.]

§ 300. Effect of deposition. A deposition, so read in evidence
has the same effect ani] no other as the oral testimony of the wit-
ness would have; and an objection to the competency or credibility
of the witness, or to the relevancy or substantial competency of
a question put to him, or of an answer given by him, may be made
as if the witness was then personally examined and without being
noted upon the deposition.

[Code § 883, without change of substance. Included by board in evidence
law, § 40.]

§ 301. Affidavits filed with deposition as evidence. The
original affidavits filed with such a deposition or certified copies
thereof, are presumptive evidence of the facts therein contained,
to show a compliance with the provisions of this article and rules
supplemental thereto.

[Code § 884, without change. Included by board in evidence law, § 42.]

§ 302. Where witness may be compelled to attend. Where
a person to be examined, as prescribed in this article, is a resi-
dent of the state, he shall not be required to attend in any county,
other than that in which he resides, or where he has an office
for the regular transaction of business, in person. Where he is not
a resident, he shall not be required to attend in any other county
than that wherein he is served with a subpoena, unless, for special
reasons stated in the affidavit, the order otherwise directs.

[Code § 886, without change.]
202 Report or Jornt Lecistative CoMMITTER

ARTICLE 30

DEPOSITIONS TAKEN WITHOUT THE STATE
FOR USE WITHIN, THE STATE

Section 303.

804.
305.
306.
307.
308.
309.
310.

311.
312.
318.
314.
315.
316.
317.
318.
319.
820.
321,
322,
328,
324,
825.

326.

Commission for examination of witness without
the state.

Cases in which commission may issue.

How and upon what terms commission granted.

Order for commission made by judge.

Order equivalent to commission in certain cases.

Interrogatories ; how settled.

Interrogatories to be annexed; directions for return.

Commission to examine wholly or partly upon oral
questions.

When open commission may issue, or depositions
may be taken.

Depositions where adverse party is an infant or
committee of incompetent.

Notice of examination upon oral questions.

Contents of open commission.

Contents and entry of order directing depositions
to be taken.

Before whom depositions may be taken under an
order; notice.

Manner of taking depositions on oral questions.

Execution and return of commission or order.

Certificate of execution.

Provisions relating to return and filing of deposi-
tions and papers from without the state.

Commission, or order to take depositions, by con-
sent.

Where return to be kept; inspection and copies.

Where deposition may be suppressed.

Deposition as evidence.

When interrogatories and deposition may be in a
foreign language.

Letters rogatory.

§ 303. Commission for examination of witness without the
state. In a case specified in the next section, where it appears,
by affidavit, on the application of either party, that the testimony
Crvin Practice Act 203

of one or more witnesses not within the state is material to the
applicant, a commission may be issued to one or more competent
persons named therein, authorizing them or any one of them to
examine the witness or witnesses named therein, under oath, upon
the interrogatories annexed to the commission, to take and certify
the deposition of each witness, and to return the same and the
commission according to the directions given in or with the com-
‘mission. The applicant or any other party to the action may be
thus examined.

[Code § 887, without change.]

§ 304. Cases in which commission may issue. Such a com-
mission may be issued in either of the following cases:

1. Where a party to an action brought in a court of record is in
default for want of an appearance or pleading, and the testimony
is required upon the assessment of damages, by a writ of inquiry
or upon a reference, or otherwise to enable the court to render
the proper final judgment.

2. Where final judgment has been rendered against the adverse
party in an action brought in a court of record and the testimony
is required in order to carry the judgment into effect.

8. Where an appeal from a final judgment rendered in the
supreme court, the city court of the city of New York or a county
court, or a motion for a new trial in either of those courts, is
pending, and the testimony will be material and necessary to the
applicant in the prosecution or defense of the action if a new trial
is granted. :

4. Where the application is made before the joinder of issue
in an action brought in either of the courts specified in the last
subdivision, and there is reason to apprehend that before issue
is joined and an application for a commission can thereafter be
made, the witness will die, or become unable to give his testimony,
or remove, so that his testimony cannot be taken.

5. Where an issue of fact has been joined in an action pending
in a court of record, and the testimony is material to the applicant
in the prosecution or defense thereof.

6. In special proceedings.

. [Code § 888, without change.]

§ 305. How and upon what terms commission granted. Ina
case specified in subdivision [third] three of the last section, if the
appeal has been taken to another court, the application must be
204 Rerorr or Joint Leqistative ComMirrEr

made to the court in which the judgment was rendered; and an
order directing the commission to be issued may be granted or
refused in the discretion of that court. In a case specified in
either of the other subdivisions of that section, the application
‘may be made to the court, or a judge thereof, or, in the supreme
court, to the county judge of the county where the action is triable:
and it must be granted upon satisfactory proof of the facts
authorizing it unless the court or judge has reason to believe that
the application is not made in good faith or unless an order for
an open commission or for taking depositions is made as prescribed
in this article. Notice of the application must be given to the
adverse party unless he is in default for want of an appearance.
Upon granting the order, the court or judge [may], in any case,
may impose such terms as justice requires.

[Code § 889, without change.]

§ 306. Order for commission made by judge. Where the
order is made by a judge out of court, it must be entered in the
office of the clerk. It [shall be granted, only in a case, where the
court would grant it, and upon the same terms; and it] is subject
to the control of the court.

[Code § 890, without change of substance. Bracketed matter covered by
preceding section but one.]

§ 307. Order equivalent to commission in certain cases.
When an order directs the issuance of a commission, the order, if
setting forth the essential directions and if duly entered, is equiva-
lent to a commission, and no formal separate commission need be
assued. In such case, a certified copy of the order shall be sufficient
to authorize the commissioners to act.

[New.]

§ 308. Interrogatories; how settled. Unless the interroga-
tories to be annexed to the commission are settled by consent of
the parties, they must be settled, upon notice, by a judge of the
court, or, in the supreme court, by the county judge of the county
where the action is triable, as prescribed by [in the general] rules
[of practice].

[Code § 891.]
Civin Pracrick Act 205

§ 309. Interrogatories to be annexed; directions for return,
The interrogatories, when settled, must be annexed to the com-
mission. Either party must be allowed to insert therein any
question, pertinent to the issue, which he proposes. Unless the
parties stipulate in writing, or the order granting the commission
prescribes, how it shall be returned, the judge must indorse upon
the commission the proper direction for that purpose. Unless the
court or judge thinks proper to direct it to be returned by an
agent, it must be returned through the post-cflice.

[Code § 892.]

§ 310. Commission to examine wholly or partly upon oral
questions. Where an issue of fact joined in an action is pending
in the supreme court, the city court of the city of New York or a
county court, the parcies may stipulate in writing or the court
to which, or the judge to whom an application for a commission
is made, [may] in its or his discretion, may direct in the order
that a commission issue without written interrogatories and that
the depositions be taken upon oral questions, or that a commission
issue to take the deposition of one or more witnesses designated
in the order, partly upon oral questions and partly upon written
interrogatories, or to take the deposition of one or more witnesses
designated in the order, upon oral questions, and one or more
witnesses, designated in the order, upon written interrogatories.

[Code § 893.]

§ 311. When open commission may issue or depositions may
be taken. Where an issue of fact joined in an action is pending
in either of the couris specified in the last section, the parties
may stipulate, in writing, or the court or a judge thereof, or, in
the supreme court. the county judge of the county where the action
is triable, [may,] in 1ts or his discretion, upon the application of
either party, and upon satisfactory proof, by affidavit, that one
or more witnesses, not within the state, are material and neces-
sary in the prosecution or defence of the action, may make an
order, upon such terms as it or he deems proper, directing that an
open commission issue or that depositions be taken, as prescribed
in the following secticns of this article.

[Code § 894.]
206 Reporr or Jowne Lecisuarive ComMitrrer

§ 312. Depositions where adverse party is an infant or com-
mittee of incompetent. The last two sections are not applicable
where the adverse party is an infant or the committee of a per-
son judicially declared to be incapable of managing his affairs
by reason of lunacy, idiocy or habitual drunkenness. Nor can
the applicant be examined in his own behalf, as prescribed in
those sections, except by consent of the parties.

[Code § 895.]

§ 313. Notice of examination: upon oral questions. Where
a commission is issued to take testimony without written inter-
rogatories, as prescribed in this article [section 893 or section 894
of this act], notice of the time and place of the examination of
a witness, by virtue thereof, naming the witness, must be served
as prescribed in section three hundred and sixteen [899] of this
act.

[Code § 896.]

§ 314. Contents of open commission. An open commission
must be directed to ore or more persons named therein, and must
authorize them or any one of them to examine any witness who
may be produced by either party, on or before a day specified
therein, upon oral questions to be put to the witness when he is
produced; to take and certify the deposition cf each witness so
examined; and to return the same, and the commission, immedi-
ately after the expiration of the time limited for the production
of witnesses, according to the directions given’ in or with the
commission.

[Code § 897.]

§ 315. Contents and entry of order directing depositions to
be taken. An order directing that depositions be taken must
specify the time within which they must be taken and the manner
in-which they must be returned. It may also contain such addi-
tional directions, not inconsistent with the next section, with
respect to the time and manner of giving notice, as the court or
judge deems proper. The order must be entered in the clerk’s
office, and a certified copy thereof must be annexed to each deposi-
tion or set of depositions returned as prescribed in the following
sections of this article.

[Code § 898.]
Crvit Practice Act 207

§ 316. Before whom depositions may be taken under an
order; notice. A deposition may be taken, pursuant to such an
order, before a person mutually agreed upon by the parties, or a
chancellor, or a judge of a court of record, or the mayor or other
chief magistrate of a city, or a justice of the peace of the state
or territory, where the witness is; who is not counsel or attorney
for either party, and would not be disqualified, by reason of
affinity or consanguinity to a party, or interest in the event, from
serving as a juror upon the trial of the action, within the state.
Written notice of the time and place of taking a deposition,
specifying the name of the witness and the person before whom
it will be taken must be served by the party at whose instance
it is taken, upon the attorney for the adverse party. The time
for serving such a notice must be at least five judicial days before
the deposition is taken; and ong judicial day, in addition, for
each fiftv miles, by the usual route of travel between the residence
of the attorney for the adverse party and the place where the
deposition is to be taken.

[Code § 900, without change except as indicated.]

§ 317. Manner of taking deposition on oral questions. Upon
the examination of a witness, without written interrogatories, by
virtue of a commission, or of an order to take depositions, the
commissioner, or the nerson before whom the deposition is taken,
must take down or cause to be taken down, word for word, unless
the parties consent or the commussion or order directs that only
the substance of the testimony be taken down [as prescribed in
the next section, the substance of the witness’s testimony; unless
he is directed, in the commission or the order, or required by the
person appearing for either party, to insert in the deposition any
or all of the questions or answers, word for word]. Unless the
commission or order otherwise directs, the person appearing for
either party may ask any question which he deems proper, and
the witness’s answer rust be taken accordingly, the objections
thereto being reserved, without being specified at the time of
examination. A copy of this section must be annexed to each’
commission to take testimony without written interrogatories and
to each certified copy cf an order to take a deposition.

[Code § 900, without change, except as indicated. ]

§ 318. Execution and return of commission or order. The
person, to whom a commission is directed, or before whom a
“208 Report or Joint Lecisuarive ComMItrEr

deposition is taken, auless otherwise expressly directed in the
commission, or in the order for taking the depositions, must
execute the commission or the order as follows:

1. He must publicly administer to each witness examined an
_ oath or affirmation to testify the truth, the whole truth, and
nothing but the truth, as to the matters respecting which the
witness is to be examined.

2. He must reduce the examination of each witness to writing,
or cause it to be reduced to writing by a disinterested person.
After it has been carefully read to or by the witness, it must be
subscribed by the witzess.

3. If an exhibit is produced and proved, the exhibit, or, if the
witness, or ther persun having it in his custody, does not sur-
render it, a copy thereof must be annexed to the deposition to
which it relates, subscribed by the witness proving it, and num-
bered or otherwise identified, in writing thereupon, by the com-
missioner, or person taking the deposition, who must subscribe
his name thereto.

4, The commissioner or person taking the deposition must sub-
scribe his name to each half sheet of the deposition; he must
annex all the depositions and exhibits to the commission, or to
a certified copy of the order for taking the deposition, with the
certificate specified in the next section; and he must close them
up under his seal, and address the packet to the clerk of the court
at his official residence.

5. If there is a direction on the commission or in the order
to return the same through the post-office, he must immediately:
deposit the packet, so addressed, in the post-office, and pay the
‘postage thereon.

6. If there is a directicn on the commission, or in the order,
to return the same by an agent of the party at whose instance
it was issued or granted, the packet so addressed must be deliv-
ered to the agent.

7. Where a commission is directed to two or more persons, one
or more of them may execute it, as prescribed in this and the
next section.

A copy of this and of the next section must be annexed to each
commission or order to take depositions authorized by this article.

[Code § 901, without change.]

§ 319. Certificate of execution. The commissioner or other
person, before whom one or more depositions are taken, must sub-
Civit Practice Act 209

scribe, and annex to exch deposition, a certificate substantially in
the following form, the blanks being properly filled up:

“State” (or “ territory”) “of :
“County” (or “ parish”) “ of " fs.
eel, , do certify that , the witness, per-
sonally appeared before me on the day of , at
o’elock in the noon, at the , in the state” (or

“territory ”) “of , and after being sworn” (or
“affirmed,” as the case may be), “to testify the truth, the whole
truth, and nothing bu’ the truth, did depose to the matters con-
tained in the foregoins deposition, and did, in my presence, sub-.
scribe the same, and indorse the exhibits annexed thereto. And
I further certify that I have subscribed my name to each half-
sheet thereof, and to each exhibit. And I further certify that
appeared in behalf of the , and that appeared
in behalf of the ee
Such certificate is a sufficient return to a commission.

[Code §§ 902, 903, without change.]

§ 320. Provisions relating to return and filing of depo-
sitions and papers from without the state. The following pro-
visions shall apply to the return and filing of depositions and
papers from without the state:

1. If [the] «@ packet[[, specified in section 901 of this act,]J
containing such depositions and papers is delivered to an agent,
he must deliver it to the clerk to whom it is addressed or to a
judge of the court, either of whom must receive and open it, upon
the agent making affidavit that he received it from the hands of
the commissioner or the officer or person who took the deposition,
and that it has not been opened or altered since he so received it.

2. If the agent be dead, or, from sickness or other casualty,
is unable to deliver the packet personally, as prescribed in the
last [section] subdivision, it must be received by the clerk or
judge, from the hands of any other person, upon the latter mak-
ing an affidavit that he received it from the agent; that the agent
is dead, or otherwise unable to deliver it; that it has not been
opened or altered since he received it; and that he believes that
it has not been opened or altered since it came from the hands of
the commissioner, officer or the person who took the deposition.
210 Report or Jowv LeaistativeE CoMMIrTEE

3. The clerk or judge who receives and opens the packet, as pre-
scribed in the last two [sections] subdivisions, must indorse there-
upon, and sign a note of the time of the receipt and opening
thereof and immediately file it in the office of the clerk, together
with the affidavit of the person who delivered it to him.

4. If the packet be transmitted through the postoffice, the clerk
to whom it is addressed must receive it from the postoffice, open
it, indorse thereupon and sign a like note of the time of the receipt
and opening thereof, and immediately file it in his office.

[Code §§ 904, 905, 906 and 907, without change of substance.]

§ 321. Commission or order to take depositions by consent.
A commission may issue, or an order to take depositions may be
made, by consent, in « case where either may be directed by the
court or a judge, as prescribed in this article. On filing a stipu-
‘lation to that effect, signed by the attorneys for the parties, the
clerk must enter an order accordingly; and thereupon the attor-
ney for the party proewring the order, may insert in the commis-
sion, or indorse upon or annex to it or the order the necessary
directions for the execution and return thereof according to the
stipulation.

[Code §, 908, without change.]

§ 322. Where return to be kept; inspection and copies.
A commission, or copy of an order to take depositions, with the
certificates, returns, <lepositions, and exhibits thereto annexed,
must remain on file in the office of the clerk, unless otherwise
provided by the stipu:ation of the parties, or unless the court, by
a special order, directs them to be filed in the office of another
clerk. They are always open to the inspection of the parties,
either of whom is entitled to a copy of them, or of any part
thereof, on payment of the fees allowed by law.

[Code § 909, without change.]

§ 323. When deposition may be suppressed. Where it
appears by affidavit that a deposition has been improperly or
irregularly taken or returned; or that the personal attendance
of the witness upon the trial could have been procured with due
diligence by a subpoena; or that the attorney for either party
has practiced any fraud, or unfair or overreaching conduct, to
the prejudice of the adverse party, in the course of the proceed-
ings; an order for the suppression of the deposition may be made
Civin Pracrice Act 211

by the court upon the application of the party aggrieved, upon
notice to the adverse party.

. [Code § 910, without change of substance. ]

§ 324. Deposition as evidence. A deposition, taken and
returned as prescribed in this article, or an exemplified copy
thereof, if the originil is filed in another county, [may,] unless
it is suppressed as prescribed in the last section, may be read
in evidence by either party. It has the same effect, and no other,
as the oral testimony of the witness would have; and an objection
to the competency or eredibility of the witness, or to the relevancy
or substantial competency of a question put to him, or of an
answer given by him, may be made, as if the witness was then
personally examined, and without being noted upon the deposition.

[Code § 911, without change. Included by board in Evidence Law, §§ 39,
41.]

§ 325. When interrogatories and deposition may be in a
foreign language. Upon an application, made in the supreme
court, the city court of the city of New York, or a county court,
for a commission to be issued to a foreign country, if it satis-
factorily appears by affidavit that the witness does not under-
stand the English language, the order for the commission [may],
in the discretion of the court or judge, may direct that written
interrogatories annexed thereto by way of direct or cross-examina-
tion be framed in the English language and also in a foreign
language; that only the interrogatories framed in the foreign
language be put to the witness; and that his answers be taken and
the certificates be made out in the same language. Where such
an order is made, it must provide for the payment by the applicant
to the adverse party of a reasonable sum, fixed therein, for the
expense of procuring ‘he interrogatories, in his behalf, to be trans-
lated. The judge who settles the interrogatories must settle
them in the foreign language, and in the English language; and,
for that purpose, he may call in the assistance of one or more
experts, whose compensation must be fixed by the judge and paid
by the applicant. When the deposition is read in evidence, it,
and the interrogatorive, must be interpreted into the English
language, as if the witness, being unable to speak the English
language, was persona‘ly present and testifying.

[Code § 912.]
212 Revorr ov Jor Lyeaisrarive ComMrrrEee

§ 326. Letters rogatory. Letters rogatory may be issued from
either of the courts specified in the last section, in its discretion,
in a case where a commission may be issued, as prescribed in this
article, upon satisfactory proof by affidavit that there is good:
reason to believe that the ends of justice will be better promoted
thereby than by the issuing of a commission, notwithstanding that
a commission can be executed in the country to which they are
sent. Letters rogatorv can be issued only to examine one or more
witnesses, upon written interrogatories annexed thereto; which
must be framed and settled, and the depositions must be returned,
as prescribed in this article, with respect to the interrogatories
annexed to a commission, and the depositions taken thereunder.

[Code § 913.]

ARTICLE 31

DEPOSITIONS TAKEN WITHIN THE STATE
FOR USE WITHOUT THE STATE

Section 327. In what cases deposition may be taken.
328. Subpoena to witness.
329. Taking and return of deposition.

§ 327. In what cases deposition may be taken. A party to
an action, suit or special proceeding, civil or criminal, pending in
a court without the state, either in the United States or in a
foreign country, may obtain, by the special proceeding prescribed
in this article, the testimony of a witness, and, in connection there
with, the production of books and papers, within the state, to be
used in the action, suit or special proceeding.

re

[Code § 914, without change.]

§ 328. Subpoena to witness. Where a commission to take
testimony, within the state, has been issued from the court in
which the action, suit or special proceeding is pending; or where
a notice has been given, or any other proceeding has been taken
for the purpose of taking the testimony, within the state, pursuant
to the laws of the state or country wherein the court is located, or
pursuant to the laws of the United States if it is a court of the
United States, the supreme court, or the county court, or a judge
of either court, [shall,] in a proper case, on the presentation of
Civi, Pracrice Act 213

a verified petition shall issue a subpoena to the witness, command-
ing him to appear before the commissioner, named in the com-
mission; or before a commissioner, within the state, for the state,
territory or foreign country, in which the notice was given, or the
proceeding taken; or before the officer designated in the commis-
sion, notice or other paper, by his title of office; at a time and place
specified in the subpoena, tu testify, in the action, suit or special
proceeding. If the witness shall fail to obey the subpoena, or
refuse to have an oath administered, or to testify, or to produce
a book or paper pursuant to a subpoena, or to subscribe his depo-
sition, the court or judge issuing the subpoena [shall], if it is
determined that a contempt has been committed, shall prescribe
the punishment as in the case of a recalcitrant witness in the
supreme court. [The general rules of practice must prescribe
rules for such proceedings.] Such proceedings shall be regulated
by rules.

[Code § 915, without change.]

§ 329. Taking and return of deposition. The officer or com-
missioner before whom a witness appears, in a case specified in
this article, must take down his testimony, in writing, and must
annex thereto copies of all books and papers produced or such
parts thereof as shall be required, and must certify and transmit
it to the court in which the action, suit or special proceeding is
pending, as the practice of that court requires.

[Code § 919, without change. Included by Board in Evidence Law, § 37.]

ARTICLE 32

PERPETUATION OF TESTIMONY IN REAL
PROPERTY ACTIONS

Section 330. Testimony perpetuated in actions or proceedings
involving title to real property.
331. Documentary evidence in connection with testimony
perpetuated.
832. Mode of introducing testimony perpetuated.
333. Application to take deposition and to perpetuate
testimony.
914 Report or Jornr Leeisiarive ComMITrEeE

Section 334, Notice of application and appointment of referee. .
335. Order to examine witness without the state.
336. Proceedings before referee.
337. Examination; deposition to be signed and certified.
338. Depositions as evidence.

§ 330. Testimony perpetuated in actions or proceedings
involving title to real property. In any action or proceeding
involving a question as to title to real property in the state of New
‘York, the court, [shall] upon the offer of any party, shall receive
in evidence testimony perpetuated pursuant to the provisions of
this article; provided that the testimony of a witness shall not be
admissible under the provisions hereof, until the court is satisfied
that such witness is deceased, or is unable personally to attend by
reason of insanity, sickness or other infirmity, or is confined in a
prison or jail, or is absent from the state, and his attendance can
not [with reasonable diligence] be compelled by subpoena or his
testimony taken by commission, with reasonable diligence.

[Code § 1688a. Board’s Evidence Law, § 87.]

§ 331. Documentary evidence in connection with testimony
perpetuated. No provision of this article shall give to any docu-
mentary evidence introduced in connection with such testimony
any greater or different effect than may be due to it by reason of
the testimony relative thereto or its own character.

[Code § 1688b. Board’s Evidence Law, § 46.]

§ 332. Mode of introducing testimony perpetuated. Such
testimony may be introduced in such action or proceeding in any
mode established by the practice of the courts for the introduction
of testimony given upon a former trial of an action by a witness
who has since died, and subject to objections as to the competency
of a witness or the relevancy or competency of a question put to
him or the answer given by him, as if the witness were personally
examined, and without being noted upon the deposition.

[Code § 1688c. Board’s Evidence Law, § 87.]

§ 333. Application to take deposition and to perpetuate testi-
mony. Where a person has been, or he and those under whom
he claims have been, for one year in possession of real property or
Civiz Practice Act 215

of an undivided interest therein, claiming it in fee, or for life,
or for a term of years not less than ten, he may apply to the
supreme court, by petition, to take the deposition of any person
or persons and to perpetuate such testimony to be received in
evidence pursuant to the provisions of this article.

(Code § 1688d. Board omitted as covered by rule 224.]

§ 334. Notice of application and appointment of referee.
Upon the presentation of the petition, the judge shall make an
order containing directions as to the persons to whom, and the
manner in which, notice shall be given of the time and place at
which such application will be heard: and at the time fixed in
said notice for that purpose, if it shal] be shown to the satisfaction
of the court that the case comes within the provisions of this
article, the court shall make an order appointing a referee to take
such testimony and prescribing the manner in which and the per-
sons to whom notice shall be given of the time and place at which
the testimony will be taken before said referee.

[Code § 1688f, first sentence. Board rule 226.]

§ 335. Order to examine witness without the state. If it
shall appear from the petition that the person or persons to be
examined reside without the state, the judge to whom the petition
may be presented may direct that a commission be issued to one
or more competent persons named therein to examine the person
or persons named therein under oath upon the interrogatories
annexed to the commission; to take and certify the deposition of
each witness, and to return the same and the commission according
to the directions given in or with the commission; and for this
purpose the judge shall make an order directing that interrogatories
be settled on notice to persons who, from the petition it may
appear, may be adversely affected by the testimony sought to be
taken. All the provisions of [chapter nine, title three, article
two of] the [code of] civil [procedure] practice act and rules,
relating to depositions taken without the state for use within the
state, shall apply to depositions taken without the state as herein
provided; and a deposition taken and filed in accordance with the
provisions thereof and of this article, shall have the same force
and effect as the depositions of a witness before a referee as herein
provided, if, before it may be read in evidence, the petition and
order under which it was taken and proof of service of all the
216 Report oF Joint Laestative Commitrret

notices required by this article shall be filed in the office of the
clerk of the county in which the real estate is situated, and the
deposition or a certified copy thereof shall be recorded in the office
of the register, or, if there be none, of the county clerk of the
county in which the real estate is situated.

[Code § 1688f, all except first sentence. Board omitted as covered by
rule 224.]

§ 336. Proceedings before referee. Before proceeding with
the testimony, the referee shall require proof that due notice of
the hearing has been given in accordance with the directions in
said order contained, and thereupon the referee must proceed to
take the depositions of the persons proposed to be examined, as
stated in the petition, at the time and place mentioned in the
notice, and [may] from time to time may ‘adjourn the examina-
tion to another day and another place within the same county.
All the provisions of section[s eight hundred and fifty-four, eight
hundred and fifty-five, eight hundred and fifty-six, eight hundred
and fifty-seven and eight hundred and fifty-eight of the code of
civil procedure] three hundred and ninety of this act apply to the
examination of a person taken before a referee as prescribed in
this article.

[Code § 1688g. Board omitted as covered by rule 230.]

§ 337. Examination; deposition to be signed and certified.
The referee upon every examination taken as prescribed in this
article must insert therein every answer or declaration of the per-
son examined, which any party to the said proceeding requires
to be inserted. If upon the examination before the referee the
person examined refuses to answer any question, the referee must
report the fact to the court or a judge thereof, who must deter-
mine whether the witness is bound to answer the question. The
deposition when completed must be read and subscribed by the
persons examined, certified to by the referee, and within ten days
thereafter [must], together with the petition and order under
which it was taken and proof of service of all the notices required
by this article, must be filed in the office of the clerk of the county
in which it was taken, and the said deposition or a certified copy
thereof must be recorded in the office of the register, or clerk
where there is no register, of the county in which the real estate
is situated.

[Code § 1688h. Board omitted as covered by rule 230.]
Civit Practice Act 217

§ 338. Depositions as evidence. [Subject to the provisions
of this article, t]The depositions [taken before a referee or pur-
suant to a commission] or a certified copy thereof, taken to per-
petuate testimony in an action or proceeding involving a question
as to the title of real property in the state of New York, taken
before a referee or pursuant to a commission, may be read in evi-
dence by any party to an action or proceeding, which shall involve
the title to such real property, as against the person on whose
petition said depositions were taken, each person to whom notice
of the taking of such depositions was given as directed in the order
appointing the referee, and all persons claiming from, through or
under them or any of them.

[Code § 1688i. Board’s Evidence Law, § 39.]

ARTICLE 33
DISCOVERY AND INSPECTION

Section 339. Power of court to require discovery.
340. Penalty for disobedience.
341. Effect of books or documents produced under order
for discovery.
342. Disccvery or inspection on notice.
348. Disclosure by party in aid of discovery.

§ 339. Power of court to require discovery. A _ court
of record, other than a justices’ court in a city, by order [has
power to] may compel a party to an action pending therein to
produce and discover, or to give to the other party, an inspection
and copy, or permission to take a copy or photograph of a book,
document, or other paper, or to make discovery of any article or
property, in his possession or under his control, relating tc the
merits of the action, or of the defense therein. The procedure for
obtaining such order shall be regulated by rules.

[Code § 803, without change of substance. The last sentence is from Code
§ 804 which is repealed without re-enactment in view of this section and
proposed rule.]

§ 340. Penalty for disobedience. Where an order[[, made as
prescribed in the last section,] directs a discovery or inspection,
218 Report or Joint Leqisuative Commirrrx

the party in whose behalf it was made, [may,] upon proof[,, by
affidavit, that the adverse party has failed to obey it and upon
notice to him, may apply to the court for an order to punish him
for the failure. Upon the hearing of the application, the court
[may], upon the payment of such a sum for the expenses of the
applicant as the court fixes and upon compliance with such other
terms as it deems just to impose, may permit the party in default
to comply with the order for a discovery and inspection; and, for
that purpose, it may direct that the application to punish him
stand over to a future time. Upon the final hearing of the applica-
tion to punish the party in default, the court, in a proper case,
may direct that his complaint be dismissed or his answer or reply
be stricken out and that judgment be rendered accordingly; or
it may make an order striking out one or more causes of action,
defenses, counterclaims or replies, interposed by him; or that he
be debarred from maintaining a particular claim or defense in
relation to which the discovery or inspection was sought. Where
the party has failed to obey an order allowing an inspection by
the adverse party and requiring him to furnish a copy or permit
a copy to be taken, the court may also direct that the book, docu-
ment or other paper be excluded from being given in evidence;
or it may punish the party for a contempt; or both.

[Code § 808, without change of substance. ]

§ 341. Effect of books or documents produced under
order for discovery. A book, document or other paper pro-
duced under an order for tts discovery [made as prescribed in
this article, ] has the same effect, when used by the party requiring
it, as if it was produced upon notice, according to the practice of
the court.

[Code § 809, without change of substance.]

§ 342. Discovery or inspection on notice. Every party
to an action shall be entitled, at any time, by notice in writing,
to give notice to any other party, in whose pleadings or affidavits
reference is made to any document, to produce such document for
the inspection of the party giving such notice, or of his attorney,
and to permit him or them to take copies thereof; and any party
not complying with such notice shall not afterwards be at liberty
to put any such document in evidence on his behalf in such cause
or matter, unless he shall satisfy the court that such document
relates only to his own title, he being a defendant, or that he had
Civin Practice Act 219

some other cause or excuse which the court shall deem sufficient for
not complying with such notice; in which case the court may allow

the same to be put in evidence on such terms as to costs and other-
wise as the court shall think fit.

{English Practice, order 31, rule 15, applied only to an action. Short
Practice Act proposed by County Lawyers’ Association, § 27.]

§ 343. Disclosure by party in aid of discovery. The
court, on the application of any party to an action, also may make
an order requiring any other party to state by affidavit whether
any one or more specific documents, to be specified in the appli-
cation, is or are, or has or have at any time been in his possession
or power, and, if not then in his possession, when he parted with
the same, and what has become thereof. Such application shall
be made upon an affidavit stating that in the belief of the deponent
the party against whom the application is made has, or has at some
time had, wn his possession or power the document or documents
specified in the application, and that they relate to the matters
in question in the case or matter, or to some of them.

[English Practice, order 31, rule 19a; Short Practice Act, proposed by
County Lawyers’ Association, § 29.]

ARTICLE 34
EVIDENCE

EVIDENCE PROVISIONS GENERALLY

Section 344. Form of certificate.

345. ‘Certificate attested by seal.

346. Proof of written instruments where subscribing
witnesses.

347. Proof of instrument by comparison of handwriting.

348. Proof of lost negotiable paper.

349. Proof of age of child.

350. Proof of ownership of unoccupied lands and timber
thereon.

351. Proof of payments by municipal corporation or
officer thereof.

352. Proof of malice in action for libel.

353. Proving mitigating circumstances in action for libel
or slander.
220 Report or Joint LucisLtariveE CoMMIrTEE

Section 354.

355.
856.
357.

358,
359.

360.

361,
362.

363.
364.

365.

366.
367.

368.
369.

370.
371.

372.
3878.
374.
375.
376.
377.
378.
379.
3880.

Proving mitigating circumstances in action for
wrong.

Admission by member of corporation.

Presumption of death in certain cases.

Seal on executory instrument as evidence of con-
sideration.

Testimony of party may be rebutted.

Proof by common law proof instead of documentary
evidence.

Ancillary action for discovery abolished.

COMPETENCY OF WITNESSES

Exclusion of witness by reason of interest.

Personal transaction or communication between wit-
ness and decedent or lunatic.

Deceased, insane or non-resident witness.

Testimony of husband and wife in action or pro-
ceeding.

Competency of testimony of person convicted of
crime.

Clergymen not to disclose confessions.

Physicians and nurses not to disclose professional
information.

Attorneys and their employees not to disclose com-
munications.

Application of sections relating to confidential com-
munications, ,

Personal privilege of witness.

Testimony of surveyor and Hope of standard of
measurement.

OATHS AND AFFIRMATIONS

Officers before whom oaths and affidavits taken.
Oaths and affidavits by officers and committees.
Oaths and affidavits taken without the state.
Mode of swearing witness.

Administering oath without the gospels.
Affirmation in place of oath.

Other modes of swearing.

Swearing persons not christians.

Court may examine witness before swearing.
bo
to
eS

Civit Practice Act

SUBSTITUTES FOR ORAL TESTIMONY

Section 381. Certificate of search for paper as evidence.

382. Certificate of officer as evidence of facts.

383. Presumption of presentment and protest of bills and
notes.

384. Proof of presentment and protest of foreign bills.

385. Affidavit of publication in newspaper.

386. Affidavit of service or posting notice.

387. Marriage certificate as evidence.

388. Book of foreign corporation as evidence.

389. Copy of books of foreign corporation.

390. Evidence of weather conditions.

391. Proof of lost execution or writ after sheriff’s sale of
real property.

392. Designation of person upon whom to make service,
as evidence.

393. Recital in record of meeting as evidence.

394. Recitals as to heirship in conveyance.

STATUTES, RECORDS AND DOCUMENTS WITHIN STATE

395. Proof of statutes and resolutions.

896. Proof of colonial statutes.

397. Proot of public records and papers.

398. Proof of papers and records in town clerk’s office.

399. Conveyance and record as evidence.

400. Searches by title insurance and abstract companies.

401. Acknowledged, proved or certified instrument.

402. Proof of proceedings before justice of the peace.

403. Proof of municipal records.

404. Proof of public records in New York county.

405. Proof of books and records in state comptroller’s
office.

STATUTES, RECORDS AND DOCUMENTS WITHOUT STATE

406. Proof of statutes, decrees and decisions of another
state or country.

407. Conveyance of land without the state as evidence.

408. Exemplification of record of conveyance of land
without the state.

409. Proof of proceedings before justice of adjoining
state.
299, Report or Joint LecistarivE ComMMITTrEE

Section 410.
411,

412,
413.

Proof of foreign court records and proceedings.

Testimony of witness as prvof of foreign court
record.

Effect of authenticated foreign court record.

Proot of foreign records and documents.

RECORDS AND DOCUMENTS IN UNITED STATES COURTS

414,
415.
416.
417.

418.
419.
420.
421.

422.
423.
424.
425.
426.
427.
428.
429.

ORDER

480.
431.
432.
433.

434.
435.

AND DEPARTMENTS

Copies of records of United States courts.

Records and documents in United States depart-

Certificate of population by director of census.

Record of conveyance or mortgage of vessels as
evidence.

SUBPOENAS

Issuance of subpoena.
Service of subpoena issued out of a court.
Penalty for disobedience to subpoena or order.

Subpoena issued by judge, arbitrator, referee or

other persons, in certain cases.
Qualification of preceding sections.
Discharge of witness from arrest.
Attendance of person when required by judgment.
Production of official records upon trial or hearing.
Production of book of account upon trial or hearing.
Production of hospital records upon trial or hearing.
Production of corporation book or paper on trial.
Personal attendance pursuant to subpoena duces
tecum.

TO BRING UP PRISONER AS WITNESS

Order to bring up prisoner as witness.

Order to produce prisoner before officer or body.

Order to produce prisoner in certain inferior courts.

Order when prisoner is sentenced to death or for
felony.

Remanding of prisoner after testifying.

Penalty for failure to obey order to produce
prisoner.
Civit Practioz Act 923

EVIDENCE PROVISIONS GENERALLY

§ 344. Form of certificate. Where a transcript, exempli-
fication or certified copy of a record or other paper, is declared
by law to be evidence, and special provision is not made for the
form of the certificate, in the particular case, the person author-
ized to certify, must state in his certificate that it has been com-
pared by him with the original and that it is a correct transcript
therefrom and of the whole of the original.

[Code § 957. Board’s Evidence Law, § 14.]

§ 345. Certificate attested by seal. If the officer, or
the court, body or board, in whose custody an original paper
specified in the last section is required to be, by the laws of the
state or of another state or of the United States or of a territory
thereof, or of a foreign country, has, pursuant to those laws, an
official seal, the certificate must be attested by that seal. If the
certificate is made by the clerk of a county within the state, it
must be attested by the seal of the county.

[The last] This section does not require the seal of a court to
be affixed to a certified copy of an order or of a paper filed therein
or entry made, where the copy is used in the same court or before
an officer thereof[; or, in the supreme court, where it is used in a
circuit court, or a court of oyer and terminer].

[First two sentences are Code § 958. Last sentence is Code § 959. Board’s
Evidence Law, § 14.]

§ 346. Proof of written instruments where  subscrib-
-ng witnesses. Except in the case of written instruments to the
validity of which a subscribing witness or subscribing witnesses
is or are necessary, whenever, upon the trial of any action or
‘upon the hearing of any judicial proceeding, a written instru-
-ment is offered in evidence, to which there is a subscribing witness,
it shall not be necessary to call such subscribing witness,
but such instrument may be proved in the same manner as it
might be proved if there were no subscribing witness thereto.

[Code § 961b. Board’s Evidence Law, § 128.]

§ 347. Proof of instrument by comparison of hand-
writing. Comparison of a disputed writing with any writing
994 Report oF Joint Leoisnarive ComMItTrEr

proved to the satisfaction of the court to be the genuine hand-
writing of any person claimed on the trial to have made or exe-
cuted the disputed instrument or writing shall be permitted and
submitted to the court and jury in like manner.

[Code § 961d. Board’s Evidence Law, § 55.]

§ 348. Proof of lost negotiable paper. 7, Where [it appears],
upon the trial of an action, 7¢ appears that a negotiable promis-
sory note or bill of exchange, upon which the action or a
counterclaim interposed in the action is founded, was lost while
it belonged to the party claiming the amount due thereupon, he
may prove the contents thereof by parol or other secondary evi-
dence and may recover or set off the amount due thereupon as
if it was produced.

2. [But] For that purpose, he must give to the adverse
party a written undertaking, in a sum fixed by the
judge or the referee, not less than twice the amount of the note or
bill, with at least two sureties, approved by the judge or the
referee, to the effect that he will indemnify the adverse party,
his heirs and personal representatives, against any claim by any
other person, on account of the note or bill, and against
all costs and expenses, by reason of such a _ claim.

3. But where an action is prosecuted or defended by the people
of the state, or by a public officer in their behaif, the people or
the public officer may prove the contents of a lost note or bill of
exchange, by parol or other secondary evidence, and may recover
or set off the amount due thereupon, without giving any security
to the adverse party.

[Subds. 1 and 2 are Code § 1917; subd. 3 is § 1918. Board’s Evidence
Law, § 6.]

§ 349. Proof of age of child. Whenever in any pro
ceeding or trial it becomes necessary to determine the age of a
child, such child may be produced and exhibited to enable the
[magistrate,] court or jury to determine its age by a personal
inspection; and such court [or magistrate] may direct an exam-
ination by one or more physicians, whose opinion shall also be
competent evidence upon the question of such age.

[Code § 96la. Board’s Evidence Law, § 17. Reference to magistrate

omitted as unnecessary in view of Code Criminal Procedure, section 392, which
applies the rules in civil cases to criminal cases.]
Crvin Practice Act 995

§ 350. Proof of ownership of unoccupied lands and
timber thereon. In all actions to recover the possession of, or
otherwise to determine the title to, or, for trespass upon or injury
to unoccupied lands, timber, trees or underwood thereon, except an
action in which any county or any state or county officer, board or
commission is a party defeudant, the plaintiff may show an
unbroken chain of title or conveyance of the land to himself for
thirty years next preceding the commencement of the action, or if
an action for trespass, next preceding the commission of the tres-
pass or injury, and such proof shall be presumptive evidence of
ownership at the times respectively, of the commencement of
such action or commission of such trespass or injury, but such
presumption may be rebutted by the defendant by showing owner-
ship of said lands at the times respectively, of the commencement
of said action or the commission of said trespass or injury, in
some person other than the plaintiff.

[Code § 960. Board’s Evidence Law, § 103.]

§ 351. Proof of payments by municipal corporation or
officer thereof. 7. In any action or proceeding now pending or
hereafter to be brought in any of the courts of this state, the pay-
ment of any sum of money by-a municipal corporation or an offi-
cer thereof may be proved by a receipt purporting upon its
face to be given therefor, and to entitle such receipt to be read
in evidence no further or other proof shall be necessary than that
it is produced from the files of the office of the chief financial
officer of such municipal corporation or from the files of the office
of the person or department charged with the duty of making the
payment.

2. Every such receipt so read in evidence shall be pre
sumptive proof of the fact of the payment to the person by or
in whose behalf it purports to be signed of the sum of money
and for the purpose therein expressed.

8. [But nJ No such receipt shall be entitled to be read in evi-
dence by virtue of the provisions in this section, unless it was
given at least six years before the commencement of the action
or proceeding in which it shall be offered as evidence. And the
date or time appearing upon its face shall be presumptive proof
that it was given at such date or time.

4. Nothing in this section contained shall be held to pre
vent any party to such an action or proceeding from proving

8
226 Rervort or Jorwr Leoeisuarive ComMIrrEE

affirmatively that the payment so appearing to have been made
has not in fact been made.

[Code § 96lce. Board’s Evidence Law, § 106.]

§ 352. Proof of malice in action for libel. An action,
civil or criminal, cannot be maintained against a reporter, editor,
publisher, or proprietor of a newspaper, for the publication therein
of a fair and true report of any judicial, legislative or other public
and official proceedings, without proving actual malice in muking
the report.

[The last] This sez:ion does not apply to a libel contained in
the heading of the report; or in any other matter added by any
person concerned in the publication; or in the report of any
thing said or done at the time and place of the public and official
proceedings which was not a part thereof.

(First sentence is Code § 1907. Last sentence is § 1908. Board’s Evidence
Law, § 75.)

§ 353. Proving mitigating circumstances in action for
libel or slander. In [such] an action for libel or slander, the
defendant may prove mitigating circumstances, notwithstanding
that he has pleaded or attempted to prove a justification.

[Code § 535, last sentence. First sentence of § 535 is covered under
“Pleadings.” Repeated by the Board in proposed Evidence Law, §§ 76, 111.
It has been suggested that the words ‘plead and” be inserted after the word
“may ” in the second line, in order to apprise the plaintiff of the facts upon
which the defendant intends to rely as a partial defense to the action.]

§ 354. Proving mitigating circumstances in action for
wrong. In an action to recover damages for the breach of a
promise to marry, or for a personal injury, or an injury to prop
erty, the defendant may prove, at the trial, facts not amount-
ing to a total defense, tending to mitigate or otherwise reduce the
plaintiff’s damages, if they are set forth in the answer, either with
or without one or more defenses to the entire cause of action. A
defendant, in default yor want of an answer, may prove facts of
that description upon a reference or inquiry to ascertain the
amount of the plaintiffs damages[[, prove facts of that
description].

[Code § 536, without change. Repeated by the Board, as to the particular
classes of actions mentioned, in proposed Evidence Law, §§ 10, 59, and 88.
Crvit Practice Act 297

It has been suggested that the words “ prove facts of that description ” in
the last line be stricken out and the words “may appear and cross-examine
the plaintiff’s witnesses for the purpose of reducing the plaintiff’s damages, and
shall not otherwise be heard in his own defense” be inserted in place thereof.
It is claimed that the section as it now reads is inconsistent, giving the
defendant in default greater privilege than if he were not so in default.]

§ 355. Admission by member of corporation. The admis-
sion of a member of an aggregate corporation, who is not a party,
shall not be received as evidence against the corporation unless
it was made concerning and while engaged in a transaction in
wnich he was the authorized agent of the corporation; or unless
it was made while a member of such corporation and testifying
as a witness concerning a transaction of the corporation, when the
official record of such testimony shall be received.

[Code § 839. Board’s Evidence Law, § 27.]

§ 356. Presumption of death in certain cases. A person
possessed of personal property in this state or upon whose life
an estate in real. property depends, who remains without the
United States, or absents himself in the state or elsewhere for
seven years together, is presumed to be dead, in an action or
special proceeding concerning such property or the administra-
tion of the estate of such person, unless it is affirmatively proved
that he was alive within that time. And where in any action of
partition in this state any portion of the proceeds of the sale of real
property is or has been paid into court, or paid to the treasurer
of any county for any unknown heirs, and has remained unclaimed
for twenty-five years, after such payment by any person entitled
thereto, the lapse of twenty-five years after such payment raises
the presumption of the death of such unknown heirs at the time
of the sale of such real property and before such payment, and
after the lapse of twenty-five years after such payment it shall
be presumed that there were no such unknown heirs living at the
time of such sale or payment, and in any action or proceeding
taken for the purpose of distributing and paying over such pro-
ceeds, all such unknown heirs are presumed and they shall be
presumed to have been dead at the time of such sale and before
such payment into court, or to the treasurer of any county.

[Code § 841. See Board’s Evidence Law, §§ 34 and 35 and Real Property
Law, § 565.]
228 Revort oF Joint LeaistariveE ComMMIrrer

§ 357. Seal on executory instrument as evidence of con-
sideration. A seal upon an executory instrument[, hereafter
executed, ] is only presumptive evidence of a sufficient considera-
tion, which may be rebutted as if the instrument was not sealed.

[Code § 840. Board’s Evidence Law, § 110.]

§ 358. Testimony of party may be rebutted. The testi-
mony of a party taken at the instance of the adverse party orally
or by deposition may be rebutted by other evidence.

[Code § 838. Board’s Evidence Law, §§ 86, 105.]

§ 359. Proof by common law proof instead of docu-
mentary evidence. Nothing in [title fourth of this chapter] this
article, relating to documentary evidence, prevents the proof of a
fact, act, record, proceeding, document or other paper or writing,
according to the rules of the common law, or by any other com-
petent proof.

[Code § 962. Board’s Evidence Law, § 47.]

§ 360. Ancillary action for discovery abolished. An
action cannot be maintained to obtain a discovery under oath in
aid of the prosecution or defence of another action.

{Code § 1914. Board’s Debtor and Creditor Law, § ly.]

COMPETENCY OF WITNESSES

§ 361. Exclusion of witness by reason of_ interest.
Except as otherwise specially prescribed [in this title], a person
shall not be excluded or excused from being a witness, by reason
of his or her interest in the event of an action or special proceed-
ing; or because he or she is a party thereto; or the husband or wife
of a party thereto, or of a person in whose behalf an action or
special proceeding is brought, prosecuted, opposed or defended.

[Code § 828. Board’s Evidence Law, § 127.]

§ 362. Personal transaction or communication between
witness and decedent or lunatic. Upon the trial of an
action or the hearing upon the merits or a special proceeding, a
party or a person interested in the event, or a person from, through
Civi, Practice Act 929

or under whom such a party or interested person derives his inter-
est or title, by assignment or otherwise, shall not be examined as
a witness, in his own behalf or interest, or in behalf of the party
succeeding to his title or interest, against the executor, adminis-
trator or survivor of a deceased person, or the committee of a
lunatic, or a person deriving his title or interest from, through. or
under a deceased person or lunatic, by assignment or otherwise;
concerning a personal transaction or communication between the
witness and the deceased person or lunatic; except where the
executor, administrator, survivor, committee, or person so deriving
title or interest, is examined in his own behalf, or the testimony
of the lunatic or deceased person is given in evidence, concerning
the same transaction or communication. A person shall not be
deemed interested for the purposes of this section by reason of
being a stockholder or officer of any banking corporation which is
a party to the action or proceeding, or interested in the event
thereof.

[Code § 829. Board’s Evidence Law, § 92.]

§ 363. Deceased, insane or non-resident witness. Where a
party or witness has died or become insane or, being a non-resident
of this state, has depxrted from the state or, being a resident of
the state has departed therefrom by reason of military or naval
service under the state or United States, since or during the trial
of an action now or hereafter pending or since or during the hear-
ing upon the merits of a special proceeding now or hereafter pend-
ing, the testimony of the decedent or insane person or of such ab-
sentee, or of any person who is rendered incompetent by the pro-
visions of the last section, taken or read in evidence at the former
trial or hearing, or at the same trial or hearing, either in court or
before the same or a new referee, together with all exhibits and
documents read in evidence in connection with, or as a part of the
giving of such testimony, may be given or read in evidence at a new
trial or hearing or at a continuation of the same trial or hearing
either in court or before the same or a new referee, or upon any sub-
sequent trial or hearing, either in court or before the same or a new
referee, of the same subject-matter in the same or another action
or special proceeding between the same parties to such former trial
or hearing or their legal representatives, by either party to such
new trial or hearing, or to such continuation of the same trial or
hearing either in court or before the same or a new referee, or to
230 Report or Joint Lucistative ComMItrEE

such subsequent action or special proceeding either in court or
before the same or a new referee, subject to any other legal objec-
tion to the competency of the witness, or to any other legal objec-
tion to his testimony or any question put to him, or to any other
legal objection to such exhibits and documents. Such testimony.
exhibits and documents proven by oath to have been so previously
taken or read in evidence may be so given or read in evidence; or
the original stenographic notes of such testimony taken by a
stenographer who has since died or become incompetent may be
so read in evidence by any person whose competency to read the
same accurately is established to the satisfaction of the court or
officer presiding at the trial of such action or special proceeding.

[Code § 830. Board’s Evidence Law, §§ 125, 126.]

§ 364. Testimony of husband and wife in action or
proceeding. A husband or wife is not competent to testify against
the other, upon the trial of an action, or the hearing upon the
merits of a special proceeding, founded upon an allegation of
adultery, except to prove the marriage or disprove the allegation
of adultery. However, if upon such trial or such hearing the
party against whom the allegation of adultery is made produces
evidence tending to prove any of the defenses thereto mentioned
in section [seventeen hundred and fifty-eight] eleven hundred and
sixty-seven of this act, the other party is competent to testify in
disproof of any such defense. A husband or wife shall not be
compelled, or without consent of the other if living, allowed to
disclose a confidential communication made by one to the other
during marriage. In an action for criminal conversation, the
plaintiff’s wife is not a competent witness for the plaintiff, but
she is a competent witness for the defendant, as to any matter in
controversy; except that she cannot, without the plaintiff’s con-
sent, disclose any confidential communication had or made
between herself and the plaintiff.

[Code § 831. Board’s Evidence Law, §§ 56-58.]

§ 365. Competency of testimony of person convicted of
crime. A person who has been convicted of a crime [or misde-
meanor] is, notwithstanding, a competent witness in an [Aa civil
or criminal] action or special proceeding; but the conviction
may. be proved, for the purpose of affecting the weight of his
testimony, either by the record, or by his cross-examination, upon
Crvin Practice Act 931

which he must answer any question relevant to that inquiry; and
the party cross-examining him is not concluded, by his answer to
such a question.

[Code § 832. Board’s Evidence Law, § 33. Reference to criminal actions
and proceedings omitted as unnecessary in view of Code Criminal Procedure,
§ 392, which applies the rules in civil cases to criminal cases.]

§ 366. Clergymen not to disclose confessions. A clergy-
man, or other minister of any religion, shall not be allowed to
disclose a confession made to him, in his professional character,
in the course of discipline, enjoined by the rules or practice of the
religious body, to which he belongs.

[Code § 833. Board’s Evidence Law, § 95.]

§ 367. Physicians and nurses not to disclose profes
sional information. A person duly authorized to practice physic
or surgery, or a professional or registered nurse, shall not be
allowed to disclose any information which he acquired in attend-
ing a patient in a professional capacity, and which was necessary
to enable him to act in that capacity; unless, where the patient
is a child under the age of sixteen, the information so acquired
indicates that the patient has been the victim or subject of a
crime, in which case the physician or nurses may be required to
testify fully in relation thereto upon any examination, trial or
other proceeding in which the commission of such crime is a
subject of inquiry. :

[Code § 834. Board’s Evidence Law, § 95.]

§ 368. Attorneys and their employees not to disclose
communications. An attorney or counsellor at law shall not be
allowed to disclose a communication, made by his client to him,
or his advice given thereon, in the course of his professional
employment, nor shall any clerk, stenographer or other person
employed by such attorney or counselor be allowed to disclose any
such communication or advice given thereon.

[Code § 835. Board’s Evidence Law, § 95.]

§ 369. Application of sections relating to confidential com-
munications. The last three sections apply to any examination of
a person as a witness unless the provisions thereof are expressly
232 Report or Joint Leeistartve Comumirrer

waived upon the trial or examination by the person confessing,
the patient or the client. But a physician or surgeon or a pro-
fessional or registered nurse, [may] upon a trial or examination,
may disclose any information as to the mental or physical condi-
tion of a patient who is deceased, which he acquired in attending
such patient professionally, except confidential communications
and such facts as would tend to disgrace the memory of the patient,
when the provisions of section [eight hundred and thirty-four]
three hundred and sixty-seven have been expressly waived on such
trial or examination by the personal representatives of the deceased
patient, or if the validity of the last will and testament of such
deceased patient is in question, by the executor or executors named
in said will, or the surviving husband, widow or any heir-at-law
or any of the next of kin, of such deceased, or any other party in
interest. But nothing herein contained shall be construed to dis-
qualify an attorney in the probate of a will heretofore executed
or offered for probate or hereafter to be executed or offered for
probate from becoming a witness, as to its preparation and exe
cution in case such attorney is one of the subscribing witnesses
thereto. In an action for the recovery of damages for a personal
injury the testimony of a physician or surgeon, or of a profes-
sional or registered nurse attached to any hospital, dispensary or
other charitable institution as to information which he acquired
in attending a patient in a professional capacity, at such hospital,
dispensary or other charitable institution, shall be taken before
a referee appointed by a judge of the court in which such action
is pending; provided, however, that any judge of such court at
any time in his discretion [may], notwithstanding such depo-
sition, may order that a subpoena issue for the attendance and
examination of such physician or surgeon or professional or regis-
tered nurse, upon the trial of the action. In such case a copy of
the order shall be served together with the subpoena. [Sections
eight hundred and seventy-two, eight hundred and seventy-three,
eight hundred and seventy-four, eight hundred and seventy-five,
eight hundred and seventy-six, eight hundred and seventy-nine,
eight hundred and eighty, eight hundred and eighty-four and eight
hundred and eighty-six of this code] The provisions of this act
and rules relating to depositions of witness taken and to be used
within the state apply to the examination of a physician or sur-
geon or a professional or registered nurse, as prescribed in this
section. The waivers herein provided for must be made in open
court, on the trial of the action or proceeding, and a paper executed
Crvi, Practice Act 238

by a party prior to the trial providing for such waiver shull be
insufficient as such a waiver. But the attorneys for the respective
parties, [may] prior to the trial, may stipulate for such waiver,
and the same shall be sufficient thereof.

[Code § 836. Board’s Evidence Law, § 96.]

§ 370. Personal privilege of witness. <A competent wit-
ness shall not be excused from answering a relevant question,
on the ground only that the answer may tend to establish the fact
that he owes a debt or is otherwise subject to a civil suit. [But
t] This provision does not require a witness to give an answer which
will tend to accuse himself of a crime [or misdemeanor] or to
expose him to a penalty or forfeiture; nor does it vary any other
rule respecting the examination of a witness.

(Code § 837. Board’s Evidence Law, § 89.]

§ 371. Testimony of surveyor and proof of standard
of measurement. No surveyor shall give evidence in any cause
[depending] pending in any of the courts of this state, or before
arbitrators, respecting the survey or measurement of lands which
he may have made, unless, if required, either such surveyor shall
make oath, or it shall otherwise be shown, that the chain or measure
used by him was conformable to the standards of the state which
were the standards of the state at the time such survey was made.
An official certificate of any state, county, city, village or town
sealer elected or appointed pursuant to the laws of this state, or
the oath of such survevor, that such chain or measure conformed
to the state standard which shall have been furnished any such
sealer pursuant to the provisions of the laws of this state, shall be
prima facie evidence of such conformity, and an official certificate
made by any such sealer that the implement used in measuring such
chain or other measure was the one provided under such laws
for such purposes shall be prima facie evidence of that fact.

[Code § 84la. LBoard’s Evidence Law, § 116.]

OATHS AND AFFIRMATIONS

§ 372. Officers before whom oaths and affidavits taken.
An oath or affidavit, required or authorized by law, except an
oath to a juror or a witness upon a trial, an oath of office, and
an oath or acknowledgment required by law to be taken before
a particular officer, may be taken before a judge, clerk, deputy
234 Revort or Jornt LegistarivE CoMMITTEE

clerk, or special deputy clerk of a court, a notary public, mayor,
justice of the peace, a city magistrate of any of the cities
of this state, or police justice thereof, surrogate, special county
judge, special surrogate, county clerk, deputy county clerk, special
deputy county clerk, or commissioner of deeds, within the dis-
trict in which the officer is authorized to act, except that a justice
of the peace may take such oath or affidavit anywhere in the county
containing the town or city in which he is authorized to act; and
when certified by the officer to have been taken before him may
be used in any court or before any officer or other person.

[Code § 842. Board’s Public Officers Law, § 73.]

§ 373. Oaths and affidavits by officers and committees.
Where an officer, person, board or committee has been hereto-
fore or is hereafter authorized by law to take o1 hear testimony
or to hear or receive an affidavit, or to take a deposition, in rela-
tion to a matter concerning which he or it has a duty to perform,
the officer or person, or a member of the board or committee, may
administer an oath for that purpose. Where an officer, person,
board or committee to whom or to which application is made to
do an act in an official capacity requires information or proof
to enable him or it to decide upon the propriety of doing the act,
he or it may receive an affidavit for that purpose.

[Code § 843. Board’s Evidence Law, § 95.}

§ 374. Oaths and affidavits taken without the state.
An oath or affidavit required, or which may be received, in an
action, special proceeding or other matter, may be taken without
the state, except where it is otherwise specially prescribed by
law, before an officer authorized by the laws of the state to take
and certify the acknowledgment and proof of deeds to be recorded
in the state; and, when certified by him to have been taken
before him, and accompanied with the like certificates as to his
official character and the genuineness of his signature as are
required to entitle a deed acknowledged before him to be recorded
within the state, may be used, as if taken and certified in this
state, by an officer authorized by law to take and certify the same.

[Code § 844. Board’s Public Officers Law, § 75. {

§ 375. Mode of swearing witness. Except as otherwise
specially prescribed [in this article], when an oath is adminis-
tered, the witness shall lay his hand on the gospels and express
Crvit Practice Act 235

assent to the oath, and it shall be according to the present prac-
tice except that the witness need not kiss the gospels.

[Code § 845. Board’s Civil Rights Law, § 243.]

§ 376. Administering oath without the gospels. The
oath must be administered in the following form to a person who
so desires, the laying of the hand upon the gospels being omitted:
“You do swear, in the presence of the ever-living God.” While
so swearing, he may or may not hold up his hand, at his option.

[Code § 846. Board’s Civil Rights Law, § 243.]

§ 377. Affirmation in place of oath. A solemn declara-
tion or affirmation in the following form must be administered
to a person who declares that he has conscientious scruples against
taking an oath, or swearing in any furm: ‘ You do solemnly, sin-
cerely, and truly, declare and affirm.”

[Code § 847. Board’s Civil Rights Law, § 243.)

§ 378. Other modes of swearing. If the court or officer
before which or whom a person is offered as a witness is satisfied
that any peculiar mode of swearing, in lieu of, or in addition to
laying the hand upon the gospels, is, in his opinion, more solemn
and obligatory, the court or officer [may], in its or his discretion,
may adopt that mode of swearing the witness.

[Code § 848. Board’s Civil Rights Law, § 243.]

§ 379. Swearing persons not christians. A person believ-
ing in a religion, other than the christian, may be sworn accord-
ing to the peculiar ceremonies, if any, of his religion, instead of
as prescribed [in section 845 or section 846 of this act] herein.

[Code § 849. Board’s Civil Rights Law, § 243.]

§ 380. Court may examine witness before swearing.
The court or officer may examine an infant or a person apparently
of weak intellect produced before it or him, as a witness, to ascer-
tain his capacity and the extent of his knowledge; and may
Inquire of a person produced as a witness what peculiar cere-
monies in swearing he deems most obligatory.

[Code § 850. Board’s rule 254.]
236 Rerort or Joint Leaistative ComMIrres

SUBSTITUTES FOR ORAL TESTIMONY

§ 381. Certificate of search for paper as_ evidence.
Where the officer to whom the legal custody of a paper belongs
certifies under his hand and official seal that he has made dili-
gent examination in his office for the paper, and that it cannot
be found, the certificate is presumptive evidence of the tacts so
certified, as if the officer personally testified to the same.

[Code § 921, Board’s Evidence Law, § 12.]

§ 382. Certificate of officer as evidence of facts. Where
a public officer is required or authorized, by special provision of
law, to make a certificate or an affidavit touching an act performed
by him, or to a fact ascertained by him, in the course of his official
duty; and to file or deposit it in a public office of the state; the
certificate or affidavit so filed or deposited, or an exemplified copy
thereof, is presumptive evidence of the facts therein alleged.
except where the effect thereof is declared or regulated by special
provision of law.

[Code § 922. Board’s Evidence Law, § 13.]

§ 383. Presumption of presentment and protest of bills
and notes. 1. The certificate of a notary public of the state,
under his hand and seal of office, of the presentment by him for
acceptance or payment, or of the protest, for non-acceptance or
non-payment of a promissory note or bill of exchange, or of the
service of notice thereof on a party to the note or bill; specifying
the mode of giving the notice, the reputed place of residence of
the party to whom it was given, and the post-office nearest thereto ;
is presumptive evidence of the facts certified, unless the party
against whom it is offered has served upon the adverse party with
his pleading or within ten days after joinder of an issue of fact,
an original affidavit to the effect that he has not received notice
of non-acceptance, or of non-payment of the note or bill. A veri-
fied answer is not sufficient as an affidavit within the meaning of
this section.

2. In case of the death or insanity of a notary public of the
state, or of his absence or removal, so that his personal attendance
or his testimony cannot be procured in any mode prescribed by
law, his original protest, under his hand and official seal, the
genuineness thereof being first duly proved, is presumptive evi-
dence of a demand of acceptance, or of payment, therein stated;
Crvit PracticrE Act 237

and a note or memorandum personally made or signed by him
at the foot of a protest, or in a regular register of official acts
kept by him, is presumptive evidence that a notice of non-accept-
ance or non-payment was sent or delivered at the time and in the
manner stated in the note or memorandum.

(Subd. 1 is Code § 923. Subd. 2 is § 924. Board’s Evidence Law, § 94.]

§ 384. Proof of presentment and protest of foreign bills.
Proof of the presentment for accep‘ance or payment of a promis-
sory note or bill of exchange payable in another state, or in a
territory or foreign country, or of a protest of the note or bill
for non-acceptance or non-payment, or of the service of notice
thereof on a party to the note or bill, may be made in any manner
authorized by the laws of the state, territory or country where it
was payable,

[Code § 925. Board’s Evidence Law, § 7.]

§ 385. Affidavit of publication in newspaper. The affidavit
of the printer or publisher of a newspaper, published within
the state, or of his foreman or principal clerk, showing the
publication of a notice or other advertisement authorized or
required by law of the state to be published in that newspaper,
annexed to a printed copy of the notice or other advertisement,
may be read in evidence; and is presumptive evidence of the pub-
lication, and also of the matters stated therein, showing that the
deponent is authorized to make the affidavit. But this section does
not apply to a case where the affidavit is required by law to be
filed unless it has been duly filed; or to a case where the mode of
proving.a publication is otherwise specially prescribed by law.

[Code § 927. Board’s Evidence Law, § 98.]

§ 386. Affidavit of service or posting notice. Where
it is necessary upon the trial of an action to prove the service, post-
ing or affixing of a notice, an affidavit showing the service, post-
ing or affixing to have been made by the person making the
affidavit is presumptive evidence of the service, posting or affixing,
upon first proving that he is dead or insane, or that his personal
attendance cannot be compelled, with due diligence.

[Code § 927. Board’s Evidence Law, § 83.]
238 Report or Joinr Leqistarive ComMrrrer

§ 387. Marriage certificate as evidence. An original cer-
tificate of a marriage, within the state, made by the minister
or magistrate by whom it was solemnized; the original entry
thereof made, pursuant to law, in the office of the clerk of a city
or a town within the state; or a copy of the certificate, or of the
entry, duly certified, is presumptive evidence of the marriage.

[Code § 928. Board’s Evidence Law, § 78.]

§ 388. Book of foreign corporation as evidence. Where
a party wishes to prove an act or transaction of a foreign
corporation, the book or books of the corporation may be used for
that purpose, as presumptive evidence, whether any or all of the
parties are or are not members of the corporation.

[Code § 929. Board’s Evidence Law, § 8.]

§ 389. Copy of books of foreign corporation. 7. If an
original book of a foreign corporation is not produced at the
trial, as prescribed in the last section, a copy thereof or of an
entry therein, verified as prescribed in [the next] this section,
may be used with like effect as the original book; provided that
the party intending to use the copy gives the adverse party at
least ten days’ notice of his intention, specifying briefly the nature
of the evidence proposed to be given.

2. The copy must be verified by the deposition, taken as pre
scribed by law, or the oral testimony taken at the trial, of the per-
son who made it or of a person who has examined and compared
it with the original book, or the entry therein.

8. The witness must testify that the copy produced is correct;
that he made it, or compared it with the original; and that he then
knew that the original book so copied, or containing the entry,
was the book of the corporation; or that it was then acknowledged
to him to be such, by an officer or receiver of the corporation, or a
person having the custody thereof, naming the person who made
the acknowledgment; and he must specify where and in whose
custody the original was then kept.

4. [But this and the next section do] This section does not
apply where the foreign corporation is a party to the action and
seeks to prove its own act or transaction in its own behalf.

[Subds. 1 and 4 are Code § 930. Subds. 2 and 3 are Code § 931. Board’s
Evidence Law, § 9.]
Crviz Practice Act 939

§ 390. Evidence of weather conditions. Any record of the
observations [in regard to the conditions] of the weather, or in
regard to the amount and conditions of the precipitation, taken
under the direction of the New York state weather bureau, or
the signal service of the United States, or the meteorological
and astronomical observatory of the city of New York, or any
copy thereof, when certified in the form of.and pursuant to law
by the officer in charge thereof at the place where such record is
duly filed, that the same is a true copy of such record, may be
read in evidence in any court of this state and shall be prima
facie evidence of the facts and circumstances therein stated.

[Code § 961f. New matter is intended to cover last two sentences of Code
§ 944, as follows: “The record of the observations of the weather, taken
under the direction of the signal service of the United States, when certified
by the officer in charge thereof, at the place where they were taken and are
kept, is prima facie evidenee of the matters of fact stated therein. The
records of the observation of the weather taken at the arsenal in Central
park under the direction of the meteorological and astronomical observatory
of the city of New York, when duly certified by the official in charge thereof,
or his deputy, shall be presumptive evidence of the facts set forth therein,
and shall be received in evidence on the trial of any action in all the courts
of this state.” Board’s Evidence Law, §§ 122, 123.]

§ 391. Proof of lost execution or writ after sheriff’s sale
of real property. Whenever, upon the trial of an action, it
shall appear that at least twenty years theretofore real property
has been sold by a sheriff for enforcement of the valid lien thereon
of a duly docketed judgment, and that a certificate of the sale
has been duly made by the sheriff and filed, and that a conveyance
in completion of the purchase has been executed and recorded,
but that the execution or writ by virtue of which the sale has so
been made can not be found in the office of the clerk with whom
the same should have been filed, then and in such case the recital
of or reference to such execution or writ contained in the said
certificate, or in the said conveyance, or in the record thereof,
shall be prima facie evidence of the said execution or writ and
of the issue of the same as against any party whose claim of title
is not shown to have been accompanied or supported by peaceable
possession of the premises in controversy for at least three years °
immediately preceding the commencement of the action.

[Code § 96le. Board’s Evidence Law, § 15.]
240 Report or Jornt LeaistariveE ComMirrreEr

§ 392. Designation of person upon whom to make service,
as evidence. An exemplified copy of a designation of a
person upon whom to make service filed by a foreign corporation
as provided in section sixteen of the general corporation law,
accompanied with a certificate that it has not been revoked, is
presumptive evidence of the execution thereof, and conclusive evi-
dence of the authority of the officer executing it.

[Code § 93la. Board’s Evidence Law, § 43.]

§ 393. Recital in record of meeting as evidence. A recital
in any order, resolution or other record of any proceeding
of a meeting referred to in section forty-one of the general con-
struction law that such meeting had been held or adjourned as
provided in said section, or that it had been held upon notice to
the members, as therein provided, shall be presumptive evidence
thereof.

[Code § 931b. Board’s Evidence Law, § 80.]

§ 394. Recitals as to heirships in conveyances. Hereafter,
in any proceeding, suit or action pending or hereafter brought
in any of the courts of this state, any deed, mortgage, lease,
release, power of attorney or other instrument more than thirty
‘years old, executed for the purpose of transferring the title
to or interest in lands, tenements or hereditaments situated
within this state, which contains recitals that the grantors,
grantees, or either, or both, are the heirs at law of a prior owner
of the title or interest described in said instrument, shall be pre
sumptive evidence of said heirship as therein recited, if such
instrument be duly acknowledged or witnessed and proved in any
manner required or permitted at the date of the execution thereof,
and be duly recorded in any county where any part of: the lands
described therein shall be located, or duly recorded in the office of
the secretary of state of the state of New York.

[Code § 841b, as added in 1913. Board’s Evidence Law, § 54.]

STATUTES, RECORDS AND DOCUMENTS WITHIN STATE

§ 395. Proof of statutes and resolutions. A statute or joint
resolution passed hy the legislature of the state may be read
in evidence from a newspaper, designated as prescribed by
law to publish the same, until six months after the close of the
Crvit Practice Act 241

session at which it was passed; and, at any time, from a volume
printed under the direction of the secretary of state. To entitle
any copy of a law published, other than those published under
the direction of the secretary of state, to be read in evidence,
there shall be contained in the same book or pamphlet a printed
certificate of the secretary of state that such copy is a correct
transcript of the text of the original laws. For such certificate
the secretary of state shall collect such a fee as he shall deem
just and reasonable.

[Code § 932. Board’s Evidence Law, § 113.]

§ 396. Proof of colonial statutes. A statute contained in
the compilation of the colonial statutes transmitted to the legis-
lature by the commissioners of statutory revision, pursuant to
chapter one hundred and twenty-five of the laws of eighteen hun-
dred and ninety-one, shall be evidence in any action or proceeding,
and of the same force and effect as though the original was pro-
duced, if it appears from such publication that such statute was
copied from the original.

[Code § 94la. Board’s Evidence Law, § 20.]

§ 397. Proof of public records and papers. A copy of a
paper filed, kept, entered or recorded, pursuant to law, in a
public office of the state, the officer having charge of which
has, pursuant to law, an official seal; or with the clerk of a court
of the state; or with the clerk or secretary of either house of
the legislature, or of any other public body or public board cre
ated by authority of a law of the state, and having, pursuant to
law, a seal; or a transcript from a record, kept, pursuant to law,
in such a public office, or by such a clerk or secretary, is evidence
as if the original was produced. But, to entitle it to be used in
evidence, it must be certified by the clerk of the court under his
hand and the seal of the court; or by the officer having the cus-
tody of the original, or his deputy, or clerk, appointed pursuant to
law, under his official seal, and the hand of the person certifying;
or by the presiding officer, secretary or clerk of the public body
or board, appointed pursuant to law, under his hand, and, except
where it is certified by the clerk or secretary of either house of
the legislature, under the official seal of the body or board.

[Code § 933. Board’s Evidence Law, § 99.]
249 Rerort oF Joint Luaistative ComMMIrrTre

§ 398. Proof of papers and records in town clerk’s office.
A copy of a paper filed, pursuant to law, in the office of a town
elerk, or a transcript from a record kept therein, pursuant, to
law, certified by the town clerk, is evidence with like effect as
the original.

[Code § 934. Board’s Evidence Law, § 118.]'

§ 399. Conveyance and record as evidence. 1. A convey-
ance, acknowledged or proved, and certified, in the manner pre
scribed by law, to entitle it to be recorded in the county where
it is offered, is evidence without further proof thereof.

2. Except as otherwise specially prescribed by law, the record
of a conveyance duly recorded within the state, or a transcript
thereof, duly certified, is evidence with like effect as the original
conveyance.

3. The certificate of the acknowledgment, or of the proof of
a conveyance, or the record, or the transcript of the record, of
such a conveyance, is not conclusive; and it may be rebutted,
and the effect thereof may be contested, by a party affected thereby.

4. If it appears that the proof was taken upon the oath of
an interested or incompetent witness, the conveyance, or the record
or transcript thereof, shall not be received in evidence until its
execution is established by other competent proof.

[Subds. 1] and 2 are Code § 935. Subds. 3 and 4 are Code § 936. Board’s
Evidence Law, §§ 23, 24, 100.]

§ 400. Searches by title insurance and abstract companies.
Searches affecting property situate in any county in which the
office of county clerk or register is a salaried one, when made and
certified to by title insurance, abstract or searching companies,
organized and doing business under the laws of this state, may be
used in all actions or special proceedings in which official searches
may be used, in place of and with the same legal effect as such
official searches[[, and the expenses of searches so made by said
companies shall be taxable at rates not exceeding the cost of
similar official searches].

[Code § 3256, part of last sentence. Remainder of section is covered under
* Costs.”’]

§ 401. Acknowledged, proved or certified instrument. Any
instrument, except a promissory note, a bill of exchange, or a
Civit Practice Act 9438

last will, may be acknowledged, or proved, and certified, in the
manner prescribed by law for taking and certifying the acknowl-
edgment or proof of a conveyance of real property; and thereupon
it is evidence as if it was a conveyance of real property.

[Code § 937. Board’s Evidence Law, § 3.]

§ 402. Proof of proceedings before justice of the peace.
1. A transcript from the docket-book of a justice of the
peace, within the state, subscribed by him, and authenticated
by a certificate of the clerk of the county in which the justice
resides, under his hand and official seal, to the effect that the
person subscribing the transcript was, at the date of the judg-
ment therein mentioned, a justice of the peace of that county;
and that the clerk is acquainted with his handwriting and verily
believes that the signature to the transcript is genuine; is evi-
dence of any matter stated in the transcript, which is required by
law to be entered by the justice in his docket-book.

2. The proceedings in an action brought, or a special proceeding
instituted, before a justice of the peace, within the state, may
also be proved by the oath of the justice.

8. In ease of his death or absence, they may be proved by the
original minutes of the proceedings kept by him, pursuant to law,
accompanied with proof of his handwriting; or by a copy of the
minutes, sworn to by a competent witness as having been com.
pared with the original entries, with proof that those entries
were in the handwriting of the justice.

(Subd. 1 is Code § 939. Subds. 2 and 3 are Code § 940. Board’s Evidence
Law, §§ 71-73.]

§ 403. Proof of municipal records. An act, ordinance, reso-
lution, by-law, rule or proceeding of the common council of a
city, or of the board of trustees of an incorporated village, or
of a local board of health of a city, town or incorporated vil-
lage or of a board of supervisors, within the state, may be read
in evidence either from a copy thereof certified by the city
clerk, village clerk, clerk of the common council, clerk or sec-
retary of the local board of health, or clerk of the board of super-
visors; or from a volume printed by authority of the common
council of the city, or the board of trustees of the village or the
local board of health of the city, town or village, or the board
of supervisors.

[Code § 941. Board’s Evidence Law, § 82.]
244 Report or Jomnt Leeisuarive Committe

§ 404. Proof of public records in New York county.
All maps, surveys and official records, which shall have been on
record or on file in the office of either the register of the city and
county of New York, or the surrogate of said city, or any of the
courts of record of said city, or the clerk of the city and county
of New York, or any county within the city of New York, or any
of the departments of said city as enumerated in section [thirty-
four of the New York city consolidation act] ninety-six of the
Greater New York charter, or in the office of the registers, surro-
gate, commissioners of public works or kindred department, or
park department, for a period of twenty years or upwards prior
to such trial, shall be presumptive evidence of their contents, and
shall be receivable in evidence as such upon any trial in any of
the courts of this state in any controversy pending therein, between
any parties.

{Code § 955. Consolidation Act was revised in § 96 of the Greater New
York Charter. Board’s Evidence Law, § 77.)

§ 405. Proof of books and records in state comptroller’s
office. [The state comptroller is hereby authorized to furnish
extracts] An extract from the books and records [of his] in the
office of the state comptroller in reference to any lot, piece or
parcel of land, [certifying that such extract contains] certified
by him to contain all that is stated in such book or record relating
to such lot, piece or parcel of land, [and such certified extract]
may be read in evidence in all courts and proceedings with the
same effect as the original book or record.

[Code § 93lc, without change of substance. The section has been rewritten
to agree with the form of other provisions of a similar character. See

Board’s proposed Executive Law, § 45, covering first clause of section and
proposed Evidence Law, § 21, covering last clause.]

STATUTES, RECORDS AND DOCUMENTS WITHOUT
STATE

§ 406. Proof of statutes, decrees and decisions of another
state or country. A printed copy of a statute, or other
written law, of another state, or of a territory, or of a foreign coun-
try, or a printed copy of a proclamation, edict, decree or ordi-
nance, by the executive power thereof, contained in a book or pub-
lication purporting or proved to have been published by the author-
ity thereof, or proved to be commonly admitted as evidence of the
Crvit Practice Act 945

existing law in the judicial tribunals thereof, is presumptive evi-
dence of the statute, law, proclamation, edict, decree or ordinance.
The unwritten or common law of another state, or of a territory,
or of a foreign country, may be proved as a fact by oral evi-
dence. The books of reports of cases adjudged in the courts
thereof must also be admitted as presumptive evidence of the
unwritten or common law thereof.

[Code § 942. Board’s Evidence Law, § 114.]

§ 407. Conveyance of land without the state as evidence.
A conveyance of real property, situated without the state,
acknowledged or proved, and certified, in like manner as a deed
to be recorded within the county wherein it is offered in evidence,
is evidence, without further proof thereof, as if it related to real
property situated within the state. A conveyance of real prop-
erty, situated within another state, or a territory of the United
States, which has been duly authenticated, according to the laws
of that state or territory, so as to be read in evidence in the courts
thereof is evidence in like manner.

[Code § 946. Board’s Evidence Law, § 25.]

§ 408. Exemplification of record of conveyance of land
without the state. An exemplification of the record of a con-
veyance of real property situated without the state, and within
the United States, which has been recorded in the state or terri-
tory where the real property is situated, pursuant to the laws
thereof, when certified under the hand and seal of the officer
having the custody of ihe record is, if the original cannot be pro-
duced, presumptive evidence of the conveyance and of the due
execution thereof.

[Code § 947. Board’s Evidence Law, § 101.)

§ 409. Proof of proceedings before justice of adjoining
state. 1. A transcript from the docket-book of a justice of the
peace within an adjoining state, of a judgment rendered by him;
a transcript of his minutes of the proceedings in the cause, pre-
vious to the judgment; or of an execution issued thereon; or of
the return of an execution; when subscribed by the justice, and
authenticated as prescribed in [the next] subdivision two of this
section, is presumptive evidence of his jurisdiction in the cause
and of the matters shown by the transcript.
246 Report or Joint Leaistativr ComMirrer

2. Such a transcript must be authenticated by a certificate of
the justice, annexed thereto, to the effect that it is in all respects
correct and that he had jurisdiction of the cause; and also by
a certificate of the clerk or prothonotary of the county, in which
the justice resided at the time of rendering the judgment, under
his hand and seal of the court of common pleas, or other county
court of the county, to the effect that the person subscribing the
certificate attached to the transcript was, at the date of the
judgment, a justice of the peace of that county; and that the sig-
nature thereto is in his own handwriting.

8. The judgment and other proceedings, and the justice’s
authority to render the judgment, may also be proved hy the
production of the docket or of a copy of the judgment or other
proceedings; and the oral testimony of the justice to the truth
and correctness thereof and to his authority to render the judg-
ment.

4. The last three [sections] subdivisions do not prevent the
introduction of evidence to controvert any of the proof in rela-
tion to the validity of a judgment therein specified.

[Subd. 1 is Code § 948. Subd. 2 is § 949. Subd. 3 is § 950. Subd. 4
is Code § 951. Board’s Evidence Law, §§ 73, 74.]

§ 410. Proof of foreign court records and proceedings.
A copy of a record, or other judicial proceeding, of a court of a
foreign country, is evidence when authenticated as follows:

1. By the attestation of the clerk of the court, with the seal of
the court affixed, or of the officer in whose custody the record is
legally kept, under the seal of his office.

2. By a certificate of the chief judge or presiding magistrate
of the court, to the effect that the person so attesting the record
is the clerk of the court; or that he is the officer in whose cus-
tody the record is required by law to be kept; and that his signa-
ture to the attestation is genuine.

3. By the certificate, under the great or principal seal of the
government under whose authority the court is held, of the
secretary of state, or other officer having the custody of that
seal, to the effect that the court is duly constituted, specifying
generally the nature of its jurisdiction; and that the signature
of the chief-judge or presiding magistrate to the certificate speci-
fied in the last subdivision is genuine.

[Code § 952. Board’s Evidence Law, § 50.]
Crvit Practice Act 947

§ 411. Testimony of a witness as proof of foreign court
record. A copy of a record, or other judicial proceeding, of a
court of a foreign country, attested by the seal of the court in
which it remains, must also be admitted in evidence upon due
proof of the following facts:

1. That the copy offered has been compared by the witness with
the original and is an exact transcript of the whole of the
original.

2. That the original was, when the copy was made, in the cus-
tody of the clerk of the court or other officer legally having
charge of it.

3. That the attestation is genuine.

[Code § 953. Board’s Evidence Law, § 50.]

§ 412. Effect of authenticated foreign court record. Nothing
in [this article] the lust two sections is to be construed as declar-
ing the effect of a record or other judicial proceeding of a foreign
country, authenticate, so as to be evidence,

[Code § 954. Board’s Evidence Law, § 51.]

§ 413. Proof of foreign records and documents. A copy
of a patent, record or other document remaining of record
or on file in a public office of a foreign country, certified accord-
ing to the form in use in that country, is evidence when authen-
ticated as follows:

1. By the certificate under the hand and official seal of a com-
missioner appointed by the governor to take the proof or acknowl-
edgment of deeds in that country, to the effect that the patent,
record or document is of record or on file in the public office
and that the copy thereof is correct and certified in due form; and

2. By a certificate under the hand and official seal of the secre
tary of state, annexed to that of the commissioner, to the same
effect as prescribed by law for the authentication of the certifi-
eate of such a commissioner, upon a conveyance to be recorded
within the state. The certificate of the commissioner, thus
authenticated, is presumptive evidence that the copy of the
patent, record or document is certified according to the form in
use in the foreign country; or

3. By a certificate under the hand and official seal of a consular
officer of the United States to the effect that the patent, record or
document is of record or‘on file in the public office and certified
248 Report oF Joint LecisuativeE ComMMITTEE

according to the form in use in the foreign country, and a copy of
a patent, record or other document so authenticated is presump-
tive evidence that the same is certified according to the form in
use in the foreign country.

[Code § 956. Board’s Evidence Law, § 102.]

RECORDS AND DOCUMENTS IN UNITED STATES COURTS

AND DEPARTMENTS

§ 414. Copies of records of United States courts. A copy
of the record, or any other proceeding, of a court of the United
States, is evidence when certified by the clerk or officer in whose
custody it is required by law to be.

[Code § 943. Board’s Evidence Law, § 119.]

§ 415. Records and documents in United States depart-
ments. A copy of a record or other paper, remaining in a depart-
ment of the government of the United States, is evidence,
when certified by the head, or acting chief officer, for the time
being, of that department; or when certified by the officer in
whose charge it is, pursuant to a statute of the United States,
or otherwise in accordance with a statute of the United States,
relating to certifying the same.

[Code § 944, first sentence. See Board’s Evidence Law, § 120.]

§ 416. Certificate of population by director of census.
A certificate of the director or other officer in charge of the census
of the United States, attested by the secretary of the interior,
stating the population of any part of the United States, or giving
the result of said census otherwise, shall be received as prima facie
evidence of such facts.

[Code § 944, second sentence. See Board’s Evidence Law, § 11.]

§ 417. Record of conveyance or mortgage of vessels as
evidence. The record of a bill of sale, mortgage, hypothecation
or conveyance of a vessel belonging to a port or place within
the United States, recorded in the office of the collector of cus-
toms where the vessel is registered or enrolled, which was acknowl-
edged or proved before it was recorded in like manner as a
deed to be recorded within the state; or a transcript of such a
Crviz Practicr Act 249

record, duly certified by the collector, is evidence with the like
effect as the original.

[Code § 945. Board’s Evidence Law, § 121.)

SUBPOENAS

§ 418. Issuance of subpoena. A subpoena is a process in the
name of the court, referee, body or other person authorized by law
to issue the same, requiring the attendance of a witness at the trial
or hearing of a cause or the hearing of a motion or before a referee
or other person where proof or the production of books, papers
or other documents is required.

[New. Taken from Board’s proposed rule 247. The rule conforms to exist-
ing practice and defines the term “ subpoena.”’]

§ 419. Service of subpoena issued out of a court. <A sub-
poena, issued out of the court, to compel the attendance of a wit-
ness, and, where the subpoena so requires, to compel him to bring
with him a book or paper, must be served as follows:

1. The original subpoena must be exhibited to the witness.

2. A copy of the subpoena, or a ticket containing its substance,
must be delivered to him.

3. The fees allowed by law for traveling to and returning from
the place where he is required to attend, and for one day’s attend-
ance, must be paid or tendered to him.

[Code § 852, without change. See Board’s proposed rule 248, identical.]

§ 420. Penalty for disobedience to subpoena or order. A per-
son so subpoenaed, who fails without reasonable excuse to obey
the subpoena, or a person who fails without reasonable excuse to
obey an order, duly served upon him, made by the court or a
judge in an action, before or after final judgment therein, requir-
ing him to attend and he examined, or so tp attend and bring with
him a book or paper, is liable, in addition to punishment for con-
tempt, for the damages sustained by the party aggrieved in con-
sequence of the failure, and fifty dollars in addition thereto.
Those sums may he recovered in one action or in separate actions.
If he is a party to the action in which he was subpoenaed, the
court [may], as an additional punishment, may strike out his
pleading.

[Code § 853.]
250 Revort or Joint Leaistative ComMirrer

§ 421. Subpoena issued by judge, arbitrator, referee or other
persons, in certain cases. 1. When a judge, or an arbitrator,
referee or other person, or a board or committee, [or a committee
of either house of the legislature, or a joint committee thereof,
duly empowered by resolution or act to sit and take testimony
during the session thereof, or after the adjournment thereof, ]
has been heretofore or is hereafter expressly authorized by law
to hear, try or determine a matter, or to do any other act in an
official capacity, in relation to which proof may be taken, or the
attendance of a person as a witness may be required; or to require
a person to attend, either before him or it, or before another
judge, or officer, or a person designated in a commission issued
by a court of another state or country, to give testimony, or to
have his deposition taken, or to be examined; a subpoena may be
issued by and under the hand of the judge, arbitrator, referee
or other person, or the chairman or a majority of the board or
committee, requiring the person to attend; and also, in a proper
case, to bring with him a book or a paper. The subpoena must be
served in the same manner as prescribed [in section eight hun-
dred and fifty-two of this act] for the service of a subpoenn issued
out of a court of record, This section does not apply to a matter
arising, or an act to be done, in an action in a court of record.

2. A person who is duly subpoenaed, as prescribed in the last
[section] subdivision, must obey the subpoena. If he fails so
to do, without a reasunable excuse, he is liable, in addition to
any other punishment which may be lawfully inflicted therefor,
for the damages sustained by the person aggrieved, in consequence
of the failure, and fifty dollars in addition thereto, to be recovered
in the same manner as prescribed [in section eight hundred and
fifty-three of this act]] in the case of a person failing to obey a
subpoena issued out of a court of record. If he fails to attend,
the person issuing the subpoena, if he is a judge of a court of
record or not of record, or if not, then any judge of such a court,
upon proof by affidavit of the failure to attend, must issue a war-
rant to the sheriff of the county commanding him to apprehend
the defaulting witness and bring him before the officer, person or
body before whom or which his attendance was required.

8. If the person subpoenaed and attending or brought as pre-
seribed in the last [section] subdivision before an officer or other
person or a body refuses without reasonable cause to be examined,
or to answer a legal and pertinent question, or to produce a book
Civit Practice Act 951

or paper which he was directed to bring by the terms of the sub-
poena, or to subscribe his deposition after it has been correctly
reduced to writing, the person issuing the subpoena, if he is a
judge of a court of record, or not of record, may forthwith, or if
he is not, then any judge of such court may upon proof by affidavit
of the facts, by warrant commit the offender to jail, there to
remain until he submits to do the act which he was so required
to do or is discharged according to law.

4. A warrant of commitment, issued as prescribed in the last
[section] subdivision, must specify particularly the cause of the
commitment; and, if the witness is committed for refusing to
answer a question, the question must be inserted in the warrant.

5. A warrant to apprehend or commit a person, issued as pre-
seribed in this [titleJ section, must be directed to the sheriff of
the county where the person is, and must be executed by him in
the same manner as a similar mandate issued by a court of record
in an action. ;

(Subd. 1 is Code § 854, without change in substance except the omission of
reference to legislative committees which portion will be covered by a section
in the Legislative Law. Subds. 2-5 are sections 855, 856, 857 and 858,
respectively, without change except as indicated. These sections were included

by Board in its proposed Public Officers Law, §§ 83-87. Some of the persons
authorized are not “ public officers.’’]

§ 422. Qualification of preceding sections. The foregoing
sections of this [title] article do not apply to a subpoena issued
by a justice of the peace; or to a witness subpoenaed to attend
a court held by a justice of the peace; or to a case where special
provision is otherwise made bv law for compelling the attendance
of a witness,

[Code § 859, without change of substance. Subpoena in justice court is
covered by Code §§ 2969, 2970.]

§ 423. Discharge of witness from arrest. 7. The court from
which a subpoena served in good faith was issued, or by which
an order was made, requiring a person to attend for the purpose
of being examined; or a judge thereof, upon proof, by affidavit,
of the facts, must moke an order directing the discharge of a
witness or other person from an arrest made in violation of section
twenty-six of the civil rights law.

2. A justice of the supreme court, in any part of the state,
or a county judge, has the like authority as a judge of the court,
252 Reporr or Jornt Leaisuarive ComMItrTEE

to make an order for a discharge, in a case specified in the [last
section] preceding subdivision.

8. Upon satisfactory proof, by affidavit, of the facts, he must
also make an order, directing the discharge of a person arrested
in violation of section twenty-six of the civil rights law, where
a subpoena, served in good faith upon the person arrested, was
issued as prescribed in section [eight hundred and fifty-four]
four hundred and twenty-one of this act.

[Subd. 1 is Code § 861, without change. Subds. 2 and 3 are Code § 862,
without change except as indicated.]

§ 424. Attendance of person when required by judgment.
The foregoing provisions of this [title] article, relating to a
person required by an order of a court to attend, apply where
such an attendance is required by the terms of a judgment.

[Code § 865, without change except as indicated.]

§ 425. Production of official records upon trial or hearing.
The record of a convevance of real property, or any other record
or document, whereof a transcript duly certified may by law be
read in evidence, shall not be removed by virtue of a subpoena
duces tecum from the effice in which it is kept, except temporarily,
by the clerk having it in custody, to a term or sitting of the
court of which he is clerk, or by the officer, having it in custody,
to a term or sitting cf a court, or a trial before a referee, held
in the city or town where the office is situated; but the records
kept by the register of the county of New York and the register
of the county of Kings shall not be removed except by an order
of court made as in this section provided. Where any such
record is required at any other place, or any record kept by the
register of the county of New York or the register of the county
of Kings, is required at a term or sitting of a court or a trial
before a referee, it n.ay be removed, by order of the supreme
court, or a county court, made in court, and entered in the
minutes; specifying that the production of the original instead
of the transcript is necessary.

[Code § 866, without change. See Board’s proposed Public Officers Law,
§ 81.]

§ 426. Production of book of account upon trial or hearing.
A person shall not be compelled to produce upon a trial or hearing
Civit Practice Act 253

a book of account, otherwise than by an order requiring him to
produce it or a subpoena duces tecum. Such a subpoena must
be served at least five days before the day when he is required
to attend. At any time after service of such a subpoena or order,
the witness may obtain, upon such a notice as the judge, referee
or other officer prescribes, an order relieving him wholly or partly
from the obligations imposed upon him by the subpoena or the
order for production, upon such terms as justice requires touch-
ing the inspection of the book or any portion thereof, or taking
a copy thereof or extracts therefrom, or otherwise. An order
may be made, as prexcribed in this section, by a judge of the
court, or in a special proceeding pending out of court before an
officer, by the officer, or, in either case, by a referee duly appointed
in the cause and authcrized to hear testimony. A justice of the
peace, or other judge of a court not of record, may make such an
order in an action brought in his court at any time after the
commencement thereof.

[Code § 867, without change. See Board’s proposed rule 249, identical,

except words “including a corporation” inserted after word “ person” in
first sentence. ]

§ 427. Production of hospital records upon trial or hearing.
Where a subpoena duces tecum shall be served upon a public
hospital, or superintendent or officer thereof, requiring the pro-
duction of any books of such hospital showing certain entries or
records therein, or any other record or data relating to the
physical condition or treatment of a patient, a transcript of such
entries or records or cata duly certified by the superintendent of
such hospital or his assistant and delivered to the court or tribunal
requiring it shall be deemed sufficient compliance with such sub-
poena, unless otherwise ordered by the court, and any such
transcript authenticated and produced as herein provided shall
be deemed evidence as if the original of such books, entries or
records were produced.

[Code § 867. See Board’s proposed rule 250.]

§ 428. Production of corporation book or paper on trial.
The production upon a trial, of a book or paper belonging to
or under the control of a corporation, may be compelled in like
manner as if it was in the hands, or under the control, of a
natural person. For that purpose, a subpoena duces tecum, or
254 Report or Joint LraisLariveE ComMIrrEeE

an order made as prescribed in the last section but one, as the case
requires, must be directed to the president, or other head of the
corporation, or to the officer thereof, in whose custody the -book
or paper is.

[Code § 868, without change. See Board’s proposed rule 249, purporting to
cover this section by inserting a reference to “ corporation ” in Code § 867.]

§ 429. Personal attendance pursuant to subpoena duces
tecum. In a case specified in the last section, or where a subpoena
duces tecum, or an order, made as prescribed in sections [866]
four hundred and twenty-five or [section 867] four hundred
and twenty-six of this act, requires a public officer to attend and
bring a book or paper under his control, the subpoena or order is
deemed to be sufficiently obeyed, if the book or paper is produced
by a subordinate officer or employee of the corporation, or in the
public office, who possesses the requisite knowledge to identify it
and to testify respecting the purposes for which it is used. If
the personal attendance of a particular officer of the corporation
or public officer is required, a subpoena, without a duces tecum
clause, must also be served upon him.

[Code § 869, without change in substance. See Board’s proposed rule 250,
purporting to cover this section.] .

ORDER TO BRING UP PRISONER AS WITNESS

§ 430. Order to bring up prisoner as witness. <A court of
record, other than a justices’ court of a city, or a judge of such
a court, or a justice of the supreme court, has power, upon the
application of a party to an action or special proceeding[,, civil
or criminal.J pending therein, to [issue a writ of habeas corpus,]
make an order for the purpose of bringing before the court, a
prisoner, detained in 1 jail or prison within the state, to. testify
as a witness in the action or special proceeding, in behalf of the
applicant.

[Code § 2008. The reference to “writ” is omitted and an “order” is
substituted. The writ will therefore be no longer necessary in these cases.
The section will be covered as to “crimins] actions” by Code of Criminal
Procedure. See Board’s proposed rule 251, intended to supersede Code
§§ 2008-2014.]

§ 431. Order to produce prisoner before officer or body.
Such [a writ] an order may also be [issued] made by a justice
Crvit Practice Act 255

of the supreme court, upon the application of a party to a special
proceeding [civil or criminal,] pending before any officer or body
authorized to examine a witness therein. In a case specified in
this section, the [writ] order may also be [issued] made by a
county judge or a special county judge residing within the county
where the officer resides, before whom, or the court or other body
sits, in or before which the special proceeding is pending.

[Code § 2009, amended as indicated. See note to Code § 2008.]

§ 432. Order to produce prisoner in certain inferior courts.
Such [a writ] an order may also be [issued] made by a justice
of the supreme court upon the application of a party to an action
pending before a justice of the peace, or in a justice’s court of a
city, [or a district court of the city of New-York,] to bring
before the justice or court, to be examined as a witness, a prisoner
confined in the jail of the county where the action is to be tried,
or an adjoining county. In a case specified in this section, the
[writ] order may also be [issued] made by a county judge, or
a special county judye, residing within the county where the
justice resides, or the court is located, or the prisoner is confined,
as the case may be.

[Code § 2010, amended as indicated. See note to Code § 2008. Reference
to district court of New York city omitted because district courts have been
abolished.]

§ 433. Order when prisoner is sentenced to death or for
felony. [Such a writ may be issued by the appellate division
of the supreme court in any department, or by the presiding jus-
tice thereof, upon such terms and conditions, and under such
regulations as such appellate division or presiding justice pre-
scribes, to bring up a prisoner sentenced to death, upon the appli-
cation of or upon notice to the district attorney of the county in
which the attendance of the prisoner is desired and upon proof
that such prisoner is a necessary and material witness in a crim-
inal action then pending and that the interests of public justice
require his attendance. ]

[A writ] An order shall not be [issued] made, by virtue of
either of the last three sections[[, or in any way except as in this
section provided for,] to bring up a prisoner sentenced to death.
Nor shall it be [issued] made to bring up a prisoner confined
under any other sentence for a felony; except by and in the dis-
256 Report or Joint Leaistarive ComMIrreE

cretion of a justice of the supreme court upon such notice to the
district attorney of the county wherein the prisoner was con-
victed, and upon such terms and conditions, and under such regu-
lations, as the judge prescribes.

[Code § 2011, amended as indicated. See note to Code § 2008. The first
sentence relates only to criminal actions. This provision will be covered in

the Code of Criminal Procedure. The sections as here given relate only to
civil actions and proceedings. ]

§ 434. Remanding of prisoner after testifying. [The return
to a writ, issued as prescribed jin this article, must state for what
cause the prisoner is held; and if it appears therefrom, that he]
If the prisoner is held by virtue of a mandate in a civil action or
special proceeding, or by virtue of a commitment upon a criminal
charge, he must be remanded, after having testified, [be reman-
ded,] and again be committed to the prison, from which he was
taken.

[Code § 2013, without change. See note to Code § 2008.]

§ 435. Penalty for failure to obey order to produce prisoner.
Any officer [to] upon whom [a writ, issued] an order made as
prescribed in this article is [delivered] served, must obey the
same according to the exigency thereof[, and make a return
thereto accordingly}. If he refuses or neglects so to do, he for-
feits to the people, if the [writ] order was [issued] made upon
the application of the attorney-general or a district-attorney, or,
in any other case, to the party on whose application the [writ]
order was [issued] made, the sum of five hundred dollars. But
where the prisoner is confined under a sentence to death, a return
to that effect is a sufficient obedience to the [writ] order, without
producing him.

[Code § 2014, amended as indicated. See note to Code § 2008.]
Section 436.
437.
438.
439.
440.
441.
449,
443,
444,

445.

446,
447,
448.
449.
450.
451.
452.
453.

454,
455.
456.
457.
458.
459.
460.
461.
462.

463,
464.

9

Civit Pracriczk Aor 257

ARTICLE 35
TRIAL

TRIAL GENERALLY

Issues defined and enumerated.

When issue of fact arises.

Trial of issues.

Counterclaim deemed complaint for trial purposes.

Issues of fact triable by a jury.

Trial by jury; how waived.

Issues triable by court.

If trial by jury waived, action tried by court.

Jury trial of specific questions of fact; when of
right.

Jury trial of specific questions of fact; when dis-
cretionary.

Trial of remaining issues after reference.

Terms at which issues tried.

Bringing issue to trial.

Variance between pleading and proot.

Decision or verdict for increased damages.

Trial may be continued beyond term.

Trial elsewhere than at court house.

Trial of action at chambers after adjournment of
special term.

Requests to find.

Form of decision.

Decision where nonsuit granted.

Time within which decision must be filed.

Order of disposition of issues at the trial.

Exception to, ruling on question of law.

Exceptions after:close of trial by court or referee.

Exceptions during the trial.

Exception after trial by court or referee and inter-
locutory judgment.

TRIAL BY JURY

Persons who constitute the jury.
Special jury.
258 Revort or Joint Leoisuarive ComMMITT Re

Section 465. Chalienges generally.
466. Peremptory challenges.
467. Challenge to the favor.
468. Challenge to panel or array.
469. Challenge where municipality is party.
470. Disqualification of juror for relationship.
471. Exceptions and challenges of talesmen.
472. Nonsuit after jury retires.
473. General and special verdict defined.
474, General and special verdict and special findings.
475. Verdict in action to recover money.
476. Verdict subject to opinion of court.
477. Presence of plaintiff not necessary when verdict
delivered.
478. Disagreement by jury.

TRIAL BY REFEREE

479. Reference by consent of parties.

480. Reference in discretion of court.

481. Compulsory reference.

482. Compulsory reference upon questions incidentally
arising. ;

483. Proceedings where several referees appointed.

484, General powers of a referee.

485. Referee’s report. _ .

486. Requests to referee to find.

TRIAL GENERALLY

§ 436. Issues defined and enumerated. The issues, [treated
of in this chapter] for the purpose of a trial, are those only which
are presented by the pleadings. An issue arises where a fact
or a conclusion of law is maintained by one party and controverted
by the other. Issues are of two kinds:

3. Of law; and

2. Of fact.

[Code § 963, without change except that “for the purpose of a trial” is
substituted for “ treated of in this chapter,” and “this chapter” is chapter
10 of the Code and relates entirely to trials.

This section together with §§ 964-967, 974-976 pt., 978 pt. and 979, omitted
by the Board “in view of the change in practice.” See Board's note 332.]
Crvit Pracricr Act 259

§ 437. When issue of fact arises. [An issue of law arises
only upon a demurrer.} An issue of fact arises in either of the
following cases:

1. Upon a denial, contained in the answer, of a material allega-
tion of the complaint; or upon an allegation, contained in the
answer, that the defendant has not sufficient knowledge or informa-
tion to form a belief with respect to a material allegation of the
complaint.

2. Upon a similar denial or allegation, contained in the reply,
with respect to a material allegation of the answer.

3. Upon a material allegation of new matter, contained in the
answer, not requiring a reply; unless an issue of law is joined
thereupon.

4. Upon a material allegation of new matter, contained in the
reply ; unless an issue of law is joined thereupon.

[Code § 964, without change, except the omission of the first sentence. The
committee recommends that “ Demurrer” be abolished and the omitted pro-
vision is unnecessary in view of the change in practice. This section was
entirely omitted by the Board, but was not covered by the practice act or
rules. ]

§ 438. Trial of issues. An issue of fact, or an issue of law
not disposed of by mution addressed to a pleading, or by motion
for judgment on the pleadings, must be tried as prescribed in this
article. An issue, the disposition of which is not necessary to
enable the court to render the appropriate judgment, is not
required to be tried.

[The matter in italics is new and is a substitute for Code § 965, which
has been omitted in view of the change in practice abolishing demurrers.
The last sentence is Code § 975, without change. Code § 965 is as follows: “An
issue, either of law or of fact, must be tried as prescribed in this chapter,
unless it is disposed of as prescribed in chapter sixth of this chapter.”
It would appear to be almost unnecessary to make such a statement, but in
view of the language of Code § 965 and its substitute here given, the rule
as to immaterial issues should be stated in this connection.]

§ 439. Counterclaim deemed complaint for trial purposes.
Where the defendant interposes a counterclaim, and thereupon
demands an affirmative judgment against the plaintiff, the mode
of trial of an issue of fact arising thereupon is the same as if it
arose in ‘an action brought by the defendant against the plaintiff
for the cause of action stated in the counterclaim and demanding
the same judgment.

[Code § 974, without change.]
260 Report or Jownr Leaistarive ComMItTEr

§ 440. Issues of fact triable by a jury. In each of the follow-
ing actions an issue of fact must be tried.by a jury unless a jury
trial is waived or a reference is directed:

1. An action in which the complaint demands judgment for a
sum of money only.

2. An action of ejectment ; for dower; for waste; for a nuisance ;
or to recover a chattel.

[Code § 968, without change. See Board’s proposed Civil Rights Law § 190.
See also Board’s Civil Practice Act, § 34.]

§ 441. Trial by jury; how waived. A party may waive his
right to the trial of the issue of fact by a jury, in any of the
following modes:

1. By failing to appear at the trial.

2. By filing with the clerk a written waiver signed by the
attorney for the party.

3. By an oral consent in open court entered in the minutes.

4, By moving the trial of the action, without a jury, or, if the
adverse party so moves it, by failing to claim a trial by a jury,
before the production of any evidence upon the trial.

[Code § 1009, without change. See Board’s proposed rule 277, relating to
waiver of jury trial.]

§ 442. Issues triable by court. An issue of law in any
action, and an issue of fact in an action not specified in the
last section but one, or wherein provision for a trial by a jury
is not expressly made by law, must be tried by the court, unless
a reference or a jury trial is directed.

[Code § 969, without change. This section was omitted by the Board. See
note 340. See also Board’s rule 259.]

§ 443. If trial by jury waived, action tried by court.
In an action triable by a jury, if the parties waive the trial by a
jury of the issues of fact, the action must be tried by the court
without a jury, unless a reference is directed in a case prescribed
by law. But such an action, other than to recover damages for
breach of a contract, cannot be tried by the court without a jury.
unless the judge presiding at the term where it is brought on for
trial assents to such a trial. His refusal so to assent annuls a
waiver made [as prescribed in subdivision second, third, or fourth
Crvit Pracrice Actr 261

of the next section] in any manner except by failing to appear at
the tral.

[Code § 1008, without change of substance. Sce Board’s proposed Civil
Practice Act, § 34, rules 259 and 277. This section was omitted by the Board
“in view of the change in practice.” See Board’s note 341.]

§ 444. Jury trial of specific questions of fact; when of
right. Where a party is entitled by the constitution, or by
express provision of law, to a trial by jury, of one or more issues
of fact in an action not specified in section [nine hundred and
sixty-eight] four hundred and forty of this act, he may apply
upon notice to the court for an order directing all the questions
arlsing upon those issues to be distinctly and plainly stated for
trial accordingly. Upon the hearing of the application, the court
must cause the issues, to the trial of which by a jury the party is
entitled, to be distinctly and plainly stated. The subsequent pro-
ceedings are the same as where questions arising upon the issues
are stated for trial by a jury, in a case, where neither party can,
as of right, require such a trial; except that the finding of the jury
upon such questions so stated is conclusive in the action unless
the verdict is set aside, or a new trial is granted.

[Code § 970, without change. See Board’s proposed Civil Rights Law,
§.191, in which this section is set forth.]

§ 445. Jury trial of specific questions of fact; when dis-=
cretionary. In an action where a party is not entitled as of
right to a trial by jury, the court [may], in its discretion, upon the
application of either party, or without application, may direct that
one or more questions of fact, arising upon the issues, or a question
of fact not in issue upon the pleadings, be tried by a jury, or may
cause those questions to be distinctly and plainly stated for trial
accordingly. If the questions directed to be tried by a jury[[, as
prescribed in the last two sections] do not embrace all the issues
of fact in the action, the remaining issues of fact must be tried
by the court or by a referee.

[First sentence is Code § 971. See Board’s proposed Civil Rights Law,
§ 192, identical with Code § 971. The new matter inserted in the first
sentence covers Code § 823. The Board omitted § 823 as sufficiently covered
by § 971. The last sentence is Code § 972 without change. See Board’s
proposed rule 260 which is said to modify § 972. The Board omitted Code
§ 972 except as so modified.]
262 Revorr or Jour Leaistarive ComMirrer

§ 446. Trial of remaining issues after reference. Where a
reference is made, as prescribed in [the last] section four hun-
dred and eighty-one, to report upon a specific question of
fact involved in the issue, and the determination of one or
more other issues is siecessary in order to enable the court to
render judgment, they must be tried, either before or after the
filing of the report, as the court directs, and either by a jury or by
the court without a jury as the case requires. [Where they are
tried by a jury, application for judgment must be made upon the
verdict and the report.]

[Code § 1014, without change, except the omission of the last sentence
which is covered elsewhere. See Code § 972 as to trial of remaining issues
after specific questions tried by jury. This section is somewhat similar in

nature and should be retained. The Board omitted the section “in view of
the change in practice.” See notes 332 and 377.]

§ 447. Terms at which issues tried. An issue of law or an
issue of fact, triable by a jury or by the court, must be tried at a
term held by one judge only.

[First sentence of Code § 976, without change. The Board omitted this
sentence. See note 333.]

§ 448. Bringing issue to trial. Either party who has served
[the] a notice of trial may bring the issue to trial, and, in
the absence of the adverse party, unless the judge holding the
term for good cause otherwise directs, may proceed with the cause
and take a dismissal of the complaint, or a verdict, decision or
judgment as the case requires. [[An inquest for want of an
affidavit of merits cannot be taken where the answer is verified.]

[Code § 980, without change, except the omission of the last sentence as
unnecessary under present practice. The practice as to affidavit of merits

has been much changed in recent years. See discussion of tne subject in
Board’s note 372. See Board’s proposed rule 288.]

§ 449. Variance between pleading and proof. <A variance
between an allegation in a pleading and the proof is not mate
rial, unless it has actually misled the adverse party, to his preju-
dice, in maintaining his action or defence upon the merits.
[If a party insists that he has been misled, that fact, and the
particulars in which he has been misled, must be proved to the
satisfaction of the court. Thereupon the court may, in its dis-
cretion, order the pleading to be amended, upon such terms as it
Civin Pracrice Actr 263

leems just.J Where the variance is not material, [as prescribed
n the last section,] the court may direct the fact to be found
iccording to the evidence, or may order an immediate amendment,
without costs. Where, however, the allegation to which the proof
is directed, is unproved, not in some particular or particulars only,
gut in its entire scope and meaning, it is not a case of variance,
within this section [the last two sections], but a failure of proof.

[First sentence is Code § 539, first sentence. The second sentence, from

Code § 539, is placed in rules. The third sentence is Code § 540 and the last
sentence is Code § 541. See Board’s proposed rule 256.]

§ 450. Decision or verdict for increased. damages. Where
[the] double, treble, or other increased damages are given by
statute, the decision of the court, [or] the report of the referee
or the pene! of the jury, must specify | the sum awarded as single
lamages, and [direct] judgment shail be entered for the inereaged
lamages.

[Code § 1020. The new matter is to cover Code § 1184, which has been
mitted. See Board’s proposed rule 257.]

§ 451. Trial may be continued beyond term. Where the
trial or hearing of an issue of fact, joined in an action or special
oroceeding[_, civil or criminal], has been commenced at a term
of a court of record, it may [notwithstanding the expiration of the
‘ime appointed for the term. to continue,] be continued to the
sompletion thereof, notwithstanding the expiration of the time
ippointed for the term to continue; including, if the cause is tried
7a jury, all proceedings taken therein until'the actual discharge
f the jury; or, if it is tried by the court without a jury, until
t is finally submitted for a decision upon the merits.

[Code § 45, without change except the omission of reference to “ civil or
riminal.” The section as amended will apply to civil actions and proceedings.

The reference to criminal actions is incorporated in Code of Criminal
>rocedure. See Board’s proposed Judiciary Law, § 12-d.]

§ 452. Trial elsewhere than at court house. 1. The parties
oan action or special proceeding in a court of record [may],
vith the consent of the judge who is to try or hear it without a
ury, may stipulate in writing that it shall be tried or heard and
letermined elsewhere than at the court house. [The stipulation
aust specify the place of trial or hearing and must be filed in the
264 Report or Jorny Leqisnartve ComMrrrer

office of the clerk; and the trial or hearing must be brought on
upon the usual notice unless otherwise provided in the stipulation. ]

2. A court of record [may], in its discretion, where the parties
to an action file a stipulation that the same be tried at a place
within the county where said action is triable other than the court-
house, may adjourn the term to such place for the trial of said
action. Notice of such an adjournment must be given as the court
directs by the order.

[Subd. 1, Code § 37, without change, except last sentence omitted and trans-
ferred to rules. Subd. 2 is Code § 41, without change. See Board’s proposed
tule 81. See Board’s proposed Judiciary Law, § 12-b.

Both §§ 37 and 41 are retained for the reason that § 37 applies only to
an action or special proceeding triable by a judge without a jury, while
§ 41 applies to any action.]

§ 453. Trial of action at chambers after adjournment of
special term. An action triable by the supreme court, without
a jury, which was upon the calendar of the term before it was
adjourned to a future day, and to the chambers of any justice
residing within the judicial district, as provided in section one
hundred and forty-eight of judiciary law, may be tried at a term
so adjourned, and held at chambers, by consent of both parties,
but not otherwise.

[Code § 239, without change, except that new matter has been inserted
from present Judiciary Law, § 148. This section was omitted by the Board.
See Code § 976 and Judiciary Law, § 148. Judiciary Law, § 148 authorizes the
adjournment of a special term to a future day and at chambers, but under

§ 239 of the Code the consent of both parties to an action must be obtained
before the action can be tried at such special term.]

§ 454. Requests to find. Before [the] a cause is finally
submitted to the court [or the referee], or within such time after-
wards, and before the decision [or report] is rendered, as the
court [or referee] allows, the attorney for either party may sub-
mit, in writing, a statement of the facts which he deems estab-.
lished by the evidence, and of the rulings upon questions of law
which he desires the court [or the referee] to make. The state-
ment must be in the form of distinet propositions of law or of
fact, or both, separately stated; each of which must be numbered
and so prepared with respect to its length and the subject and
phraseology thereof that the court [or referee] may conveniently
pass upon it. At or before the time when the decision [or report]
is rendered, the court [or the referee] must note in the margin of
Civin Practice Act 265

the statement the manner in which each proposition has been dis-
posed of, and must either file or return to the attorney the state
ment thus noted: but an omission so to do does not affect the
validity of the decision [or report]. An exception may be taken
to a refusal of the court [or referee] to find any request thus
submitted.

[Code § 1023, without change, except that references to referee and his
report have been removed and covered under “ Referee.” See Board’s proposed
rule 261. The section applies only to trials without a jury. See heading of
chapter 10, title 2, “Trials without a jury.” (See Stokes v. Stokes, 128
App. Div. 838; 191 N. Y. 333; 183 N. Y. 392; 134 App. Div. 869.) It has been
suggested to the committee that a provision should be inserted in the practice
permitting a party to propose findings at any time before the settlement
of a case on appeal. The committee has not inserted such a provision but
believes the subject is worthy of consideration.

§ 455. Form of decision. The decision of the court, [or
the report of a refereé] upon the trial of the whole issues of fact
must state separately the facts found and conclusions of law, and
direct the judgment to be entered thereon, which decision so ruled
shall form part of the judgment-roll. In an action where the
costs are in the discretion of the court the decision [or report]
‘must award or deny costs, and if it awards costs it must designate
the party to whom the costs to be taxed are awarded.

[Code § 1022, without change except omission of references to referee’s
report which are covered under “ Referee.” See Board’s proposed rule 262.]

§ 456. Decision where nonsuit granted. The decision
of the court[[, or the report of a referee, upon the trial of a
demurrer or] upon the trial of the issues of fact or law, where a
nonsuit is granted, must direct the final or interlocutory judgment
to be entered thereupon, and in any such case it shall not be neces-
sary for the court [or referee] to make any finding of fact. Where
it directs an interlocutory judgment, with leave to the party in
fault to plead anew or amend, or permitting the action to be
divided into two or more actions, and no other issue remains to
be disposed of, it may also direct the final judgment to be entered
if the party in fault fails to comply with any of the directions
given or terms imposed.

‘ [Code § 1021, without change, except that the matter relating to referees
has been transferred to “ Referee ” and the reference to a decision upon “ the

trial of a demurrer ” has been removed because demurrer in terms is abolished.
See Board’s proposed rules 262, 263 and 272.]
266 Rerort or Jomnr Leatsiarive ComMirrae

§ 457. Time within which decision must be filed. Upon
a trial by the court of an issue of fact or of law, its decision in
writing must be filed in the clerk’s office within twenty days after
the final adjournment ‘of the term where the issue was tried. If
it is not so filed, either party may move at a special term for a
new trial upon that ground. If the decision has not been filed
when the motion is heard, the court must make an order for a new
trial, either absolutely, or unless it is filed within a time specified
in the order. [If an order for a new trial is made, or a con-
tingent order for a new trial becomes absolute, the costs of the
former trial abide the event.]

‘[Code § 1010, without change, except the last sentence has been omitted
and covered under “Costs.” See Board’s proposed rule 264.]

8 458. Order of disposition of issues at the trial. 7. Where
an issue of law and an issue of fact arise in one action, the
issue of law must be first disposed of, except [as] when the
court otherwise directs [otherwise prescribed in the next section].

2. A separate trial, between the plaintiff and one or more
defendants, of some or all of the issues of fact or one trial of some
or all of the issues of law or a change in the order of disposition
of the issues may be directed by the court, in its discretion. [Such
a direction may be given, in an order, made upon notice; or, except
where an application for such an order has been denied, it may be
given, by the judge holding the term, where those issues are
regularly upon the calendar for trial, either with. or without the
entry of an order.]

3. The court, in its discretion, may order one or more issues to
be separately tried prior. to.any trial of the other issues in the
case.

[Subd. 1 is Code § 966, without any change in substance, inasmuch as
Code §§ 967 and 973 already give the court discretion to change the
order of disposition of issues. Subd. 2 is Code § 967, without
change, except the omission of the last sentence which seems unnecessary
detail. This sentence was not in the Field Code (see § 258), but was first
inserted in the Code of 1876. Subd. 3 is Code § 973, without change. The
section was added to the Code by L. 1907, ch. 526, and is a broad statement
of the court’s discretion.]

§ 459. Exception to ruling on question of law. 7. An
exception may be taken to the ruling of the court or of a referee,
upon a question of law, arising upon the trial of an issue of fact.
Civit Practice Act 267

2. [Except as prescribed in section 1180 of this act, a] An
exception, other than an exception to a determination of a chal-
lenge to a juror or to a panel or array of jurors, cannot be taken
to a ruling upon a question of fact.

8. For the purposes of this article, a trial by a jury is regarded
as continuing until the verdict is rendered.

4, Upon the trial of an issue of fact by a referee or by a court
without a jury, a finding of fact without any evidence tending to
sustain it, is a ruling upon a question of law within the meaning of
[the last] this section.

[Subds. 1, 2, 3 are Code § 992, without change. The new matter covers the
reference to Code § 1180. Subd. 4 is first sentence of Code § 993. The last

sentence of Code § 993 is covered under “ Appeals.” The Board recommended
that exceptions be abolished. See Board’s proposed rule 287.]

§ 460. Exceptions after close of trial by court or referee.
Where an issue of fact is tried by a referee, or by the court,
without a jury, an exception to a ruling, upon a question of law, _
made after the cause is finally submitted, must be taken by filing,
a notice of ‘the exception in the clerk’s office and serving a copy
thereof upon the attorney for the adverse party. The exception
may be so taken at any time before the expiration of ten days
after service upon the attorney for the exceptant of a copy
of the decision of the court or report of the referee and a
written notice of the entry of judgment thereupon. If the notice
of exception is filed before the entry of final judgment, it must
be inserted in the judgment-roll; if afterwards, it must be annexed
to the judgment-roll. In either case, it constitutes a part of the
papers upon which an appeal from the judgment must be heard.

[Code § 994, without change. Omitted by Board. See note to § 731,
supra. ]

§ 461. Exceptions during the trial. In any other case, an
exception must be taken, at the time when the ruling is made,
unless it is taken to the charge given to the jury; in which case,
it must be taken before the jury have rendered their verdict. It
must, at the time when it is taken, be reduced to writing by the
exceptant or entered in the minutes.

[Code § 995, without change. Omitted by Board. See note to § 731, supra.]

§ 462. Exception after trial by court or referee and inter-
locutory judgment. ‘Where the decision or report, rendered
268 Report or Joint Leaistarive Commirrrr

upon the trial of an issue of fact by the court, without a jury, or
by a referee, directs an interlocutory judgment to be entered, and
further proceedings must be taken before the court or a judge
thereof, or a referee, before a final judgment can be entered[{,
a motion for a new trial, upon one or more exceptions, may be
made at a term of the appellate division of the supreme court,
after the entry of the interlocutory judgment and before the com-
mencement of the hearing directed therein. The], the time within
which [the] a party must except, for [that] the purpose of
making a motion for a new trial, to a ruling of law, made upon
such a trial by the judge or the referee, after the close of the
testimony, is ten days after service of a copy of the decision or
report and notice of the entry of the interlocutory judgment
thereupon.

[Code § 1001, so far as it states the time within which a party must except

in the cases covered by the section. The right to make the motion for a new
trial at the appellate division is covered under “Appeals,” omitted by Board.]

TRIAL BY JURY

§ 463. Persons who constitute the jury. The first twelve
persons who appear as their names are drawn and called, and are
approved as indifferent between the parties, and not discharged
or excused, must be sworn and constitute the jury to try the issue.
[Persons shall be disqualified from sitting as jurors if related by
consanguinity or affinity to a party to the issue in the same cases in
which judges are disqualified. The party related to the juror
must raise the objection before the case is opened; but any other
party to the issue may raise the objection within six months from
the date of verdict.]

[Code § 1166, without change, except the omission of the last two sentences
which are made a separate section. See Board’s proposed Judiciary Law,
§ 485, containing the first sentence as above stated.]

§ 464. Special jury. Where it appears to the court that
a fair and impartial trial of an issue of fact triable by a jury
joined in an action pending in the supreme court cannot be had
without a struck jury, or that the importance or intricacy of the
case requires such a jury, the court must make an order upon
notice directing a special jury to be struck for the trial of the
issue. The order’must specify the term and it may specify a
particular day in the term when the jurors must attend. Such
Civit Pracrice Act 269

special yury shall be struck in the manner provided by the judiciary
law. From the persons [so] notified and attending a jury must
be formed for the trial and the issue must be tried as prescribed
in this chapter with respect to an ordinary jury trial. The court
has the same power to excuse or discharge a juror and to cause
additional jurors to be drawn or talesmen to attend as upon an
ordinary trial. But the court [may], in its discretion, may set
aside an additional juror so drawn, or a talesman, upon the objec-
tion of either party without a formal challenge, but neither party
shall have more than two peremptory challenges.

[First two sentences are Code § 1063, without change. The third sentence
is added because Code §§ 1064-1066, 1068-1071 have been placed in the
Judiciary Law. See Board’s proposed Judiciary Law, § 493. The last two

sentences are Code § 1067, without change. See Board’s proposed Judiciary
Law, §§ 495, 498 and last clause of Board’s rule 279.|

§ 465. Challenges generally. An objection to the quali-
fications of a juror is available only upon a challenge. A chal-
lenge of a juror, or a challenge to the panel or array of jurors,
must be tried and determined by the court only. Either party
may except to the determination and it may be reviewed, upon a
question of fact, or a question of law, or both, as where an issue
of fact presented by the pleadings is tried by the court; except
that where one or more exceptions are taken to the rulings of the
court, made after the jury is empanelled, an exception to the
determination of a challenge must be heard at the same time; and
the case must contain the matters necessary to present it, upon the
facts, or the law, or both. [The fact that a juror is in the employ
of a party to the action; or, if a party to the action is a corporation,
that he is an employee thereof or a shareholder or a stock-
holder therein; or in actions for damages for injuries to per-
son or property, that he is a shareholder, stockholder, director,
officer or employee, or in any manner interested, in any
insurance company issuing policies for protection against lia-
bility for damages for injury to person or property, shall, con-
stitute a good ground for a challenge to the favor as to such juror.]

[Code § 1180, without change, except the omission of the last sentence

which is made into a separate section. See Board’s rule 278 for the matter
retained above.]

§ 466. Peremptory challenges. Upon the trial of an issue
of fact, joined in a civil action in a court of record, each party
270 Rerorr or Jorny Leaisiative ComMirrer

may peremptorily challenge not more than six and in a court not
of record each party may peremptorily challenge not more than
three of the persons drawn as jurors for the trial.

[Code § 1176, without change. See Board’s proposed rule 279.)

§ 467. Challenge to the favor. The fact that a juror is
in the employ of a party to the action; or, if a party to the action
is a corporation, that he is an employee thereof or a shareholder
or a stockholder therein; or in actions for damages for injuries to
person or property, that he is a shareholder, stockholder, director,
officer or employee, or in any manner interested, in any insurance
company issuing policies for protection against liability for dam-
ages for injury to persons or property, shall constitute a good
ground for a challenge to the favor as to such juror.

[Last sentence of Code § 1180. Board’s proposed Judiciary Law, § 499-c.]

§ 468. Challenge to panel or array. It is not a good cause
of challenge to the panel or array of trial jurors in an action in
a court of record:

1. That the officer who drew them is a party to, or interested
in the action, or counsel or attorney for, or related to a party.
[It is not a good cause of challenge to the panel or array of trial
jurors, in an action in a court of record, }

2. That they were notified to attend by an officer who is a party
to, or interested in, the action, or related to a party; unless it is
alleged in the challenge, and is established, that one or more of
the jurors drawn were not notified and that the omission was
intentional.

{Subdivision 1 is Code § 1177, without change. Subdivision 2 is Code

§ 1178, without change. The Board classified Code §§ 1177 and 1178 to
Judiciary Law, as § 499-a.]

§ 469. Challenge where municipality is party. In an
action in a court of record or not of record, wherein a city, town
or county is a party, it is not a good cause of challenge to a trial
juror, or to an officer who notified the trial jurors, that the juror
or the officer is a resident of, or liable to pay taxes in, the city,
town or county which is a party to such action,

[Code § 1179, without change. The Board classified this section to
Judiciary Law, § 499-b.]
Civit Practice Act 971

§ 470. Disqualification of juror for relationship. Per
sons shall be disqualified from sitting as jurors if related by con-
sanguinity or affinity to a party to the issue in the same cases in
which judges are disqualified. The party related to the juror must
raise the objection before the case is opened, but any other party
to the issue may raise the objection within six months from the
date of the verdict.

[Code § 1166, last two sentences. First. sentence covered elsewhere under
this article. See Board’s proposed Judiciary Law, §§ 499-d, 499-e.]

§ 471. Exceptions and challenges of talesmen. [The sheriff
or person appointed by the court, must notify the requisite
number of persons to attend, and make return thereof, as pre
scribed in section five hundred and thirty-six of the judiciary law;
except that each person must be required to attend forthwith.
Each person so notified must attend forthwith, and, unless excused
by the court or set aside, must serve as a juror upon the trial.
For a neglect or refusal so to do, he may be fined in the same
manner as a trial juror, regularly drawn and notified, as pre-
scribed in the judiciary law; and he] A talesman summoned as
prescribed in the judiciary law is subject to the same exceptions
and challenges as any other trial juror.

[Code § 1174, last clause. For remainder of section see proposed Judiciary
Law, § 748.]

§ 472. Nonsuit after jury retires. [it is not necessary
in an action in a eourt of record, to call the plaintiff, when the
jurors are about to deliver their verdict; and,] The plaintiff in
[such] an action in a court of record cannot submit to a nonsuit
after the cause has been committed to the jury to consider the
verdict.

[Code § 1182, last clause without change. See Board’s proposed rule 280
which incorporates the last clause of § 1182.]

§ 473. General and special verdict defined. <A general
verdict is one hy which the jury pronounces, generally, upon all
or any of the issues, in favor either of the plaintiff or of the
defendant. A special verdict is one by which the jury finds the
facts only, leaving the court to determine which party is entitled
to judgment thereupon.

[Code § 1186, without change. See Board’s proposed General Construction
Law, § 22-a, which is identical. See also Board’s proposed Civil Practice
Act, § 40.]
v2 Report or Jorvy Leqistarive ComMirrEr

§ 474. General and special verdict and special findings.
In an action to recover a sum of money only, or real property,
or a chattel, the jury may render a general or special verdict,
in its diseretion. In any other action, except where one or more
specific questions of fact stated under the direction of the court
are tried by a jury, the court may direct the jury to find a special]
verdict upon all or any of the issues, Where the jury finds a
general verdict, the court may instruct it to find also specially
upon one or more questions of fact stated in writing. The special
verdict or special finding must be in writing; it must be filed with
the clerk and entered in the minutes. When a motion is made
to nonsuit the plaintiffs or for the direction of a verdict, the court
[may], pending the decision of such motion, may submit any
question of fact raised by the pleadings to the jury or require the
jury to assess the damage. After the jury shall have rendered a
special verdict upon such submission or shall have assessed the
damage, the court may then pass upon the motion to nonsuit or
direct such general verdict as either party may be entitled to.
[On an appeal from the judgment entered upon such nonsuit or
general verdict, such special verdict, or general verdict, shall form
a part of the record, and the appellate division or the court of
appeals may direct such judgment thereon as either party may
be entitled to.J Where a special finding is inconsistent with a
general verdict, the former controls the latter, and the court must
render judgment accordingly.

[Code §§ 1187 and 1188, without change, except the omission of the last

sentence of § 1187 which is covered under “Appeal.” See Board’s proposed
rule 281.]

§ 475. Verdict in action to recover money. In an action
to recover a sum of money only, if a verdict is found, either in
favor of the plaintiff, or in favor of a defendant who has set up
a counterclaim for a sum of money, the jurv must assess the
amount of damages. The jury [may also], under the direction of
the court, also may assess the amount of the damages, where the
court directs judgment for the plaintiff on’ the pleadings.

[Code § 1183, without change. See also Board’s proposed rule 282, which
is identical.]

§ 476. Verdict subject to opinion of court. Where, upon
the trial of an issue by a jury, the case presents only questions
Civit Practice Act 273

of law, the judge may direct the jury to render a verdict subject
to the opinion of the court. Notwithstanding that such a verdict
has been rendered, the judge holding the trial term may set aside
the verdict at the same term[,, set aside the verdict, and direct
judgment to be entered for either party, with like effect and in like
manner as if such a direction had been given at the trial. An
exception to such a direction may be taken as if such a direction
had been given, as prescribed in section [nine hundred and ninety-
four] four hundred and sixty of this act.

[Code § 1185, without change. See also Board’s proposed rule 283, which
is identical except the omission of the last sentence. This sentence was
omitted by the Board because “ exceptions ” were to be abolished and reference
is made to rule 287.]

§ 477. Presence of plaintiff not necessary when verdict
delivered. It is not necessary, in an action in a court of record,
to call the plaintiff when the jurors are about to deliver their
verdict.

[Code § 1182, first clause without change. The Board omitted this clause
as unnecessary. See Board’s note 377.]

§ 478. Disagreement by jury. Where a jury [is] empan-
eled to try an issue, to make an inquiry, or assess damages, [in
an action in a court of record, or not of record, or in a special
proceeding before an officer, if the jurors] cannot agree, after
being kept together for such a time as is deemed reasonable by
the court before which, or the officer before whom, they were
empaneled, the court or officer may discharge them and issue a
precept for a new jury or order another jury to be drawn, as the
case requires; and the same proceedings must be had before the
new jury as if it was the jury first empaneled.

[Code § 1181, without change, except the omission of unnecessary language.
See Board’s proposed rule 285, which is identical. Covered as to justices’
courts by Code § 3008. See proposed Judiciary Law, § 309.]

TRIAL BY REFEREE

§ 479. Reference by consent of parties. Except in a case
specified in the next section, the whole issue, or any of the
issues in an action, either of fact or of law, must be referred,
upon the consent of the parties manifested by a written stipu-
lation signed by their attorneys and filed with the clerk. Where
274 Reporr or Jormvr Lecisuarive ComMirreE

the stipulation does not name the referee, he may be designated by
the court, on motion of either party. Where the stipulation names
the referee, the clerk must enter an order, of course, referring
the issue or issues for trial, to that person only. If the referee
named in a stipulation refuses to serve, or if a new trial of an
action tried by a referee so named is granted, the court must
appoint another referee, unless the stipulation expressly provides
otherwise.

[Code § 1011, without change. See Board’s proposed rule 265.]

§ 480. Reference in discretion of court. [But a] A refer-
ence shall not be made, of course, upon the consent of the parties,
in an action to annul [the] a marriage or for a divorce or
a separation; or an action against a corporation, to obtain a
dissolution thereof, the appointment of a receiver of its property,
or the distribution of its property, unless it is brought by the
attorney-general; or an action wherein a defendant to be affected
by the result of the trial is an infant. In a case specified in this
section, where the parties consent to a reference, the court [may],
in its discretion, may grant or refuse a reference; and, where a
reference is granted, the court must designate the referee. If the
referee thus designated refuses to serve, or if a new trial of an
action tried by a referee so designated is granted, the court
[must], upon the application of either party, must appoint
another referee.

[Code § 1012, without change. See Board’s proposed rule 266.]

§ 481..Compulsory reference. The court [may], of its own
motion, or upon the application of either party, without the con-
sent of the other, may direct a trial of the issues of fact, bv a
referee, where the trial will require the examination of a long
account on either side and will not require the decision of difficult
questions of law. In an action triable by the court without a jury,
a reference may be made as prescribed in this section to decide the
whole issue or any of the issues; or to report the referee’s finding
upon one or more specific questions of fact involved in the issue.

[Code § 1013, without change. See Board’s proposed rule 267.]

§ 482. Compulsory reference upon questions incidentally
arising. The court [may likewise], of its own motion, or upon
the application of either party, without the consent of the other,
Cun Practicn Act ; 275

likewise may direct a reference to take an account and report to
the court thereon, either with or without the testimony, after
interlocutory or final judgment, or where it is necessary to do
so for the information of the court; and also to determine and
report upon a question of fact arising in any stage of the action,
upon a motion or otherwise, except upon the pleadings.

[Code § 1015, without change. See Board’s proposed rule 267.]

§ 483. Proceedings where several referees appointed.
Where the court is authorized tu appoint a referee, it may[,, in its
discretion, ] appoint either one or three, in its discretion. And
where a reference is made by consent of the parties, they may
select any number of referees, not exceeding five.

Where the reference is to more than one referee, all must
meet together and hear all the allegations and proofs of the
parties; but a majority may appoint a time and place for the
trial, decide any question which arises upon the trial, sign a
report or settle a case. [Either] Any of them may administer
an oath to a witness; and a majority of those present at a time
and place appointed for the trial may adjourn the trial to a
future day.

[First two sentences is Code § 1025. Last two sentences are Code § 1026.
See Board’s rule 268.]

§ 484. General powers of a referee. The trial, by a
referee, of an issue of fact or of an issue of law, must be brought
on upon like notice and conducted in like manner [and the
papers to be furnished thereupon are the same, and are fur-
nished in like manner,] as where the trial is by the court without
a jury. The referee exercises, upon such a trial, the same powers
as the court, to grant adjournments, to preserve order, and pun-
ish [the] a@ violation thereof, or to subpoena a witness to attend
before him and in a proper case to bring with him a book, docu-
ment or other paper. Upon the trial of an issue of fact, the
referee exercises also the same power as the court, to allow amend-
ments to the summons or to the pleadings; to compel the attend-
ance of a witness by attachment; and to punish a witness for e
contempt of court, for non-attendance, or refusal to be sworn, or
to testify. Upon the trial of an issue of law, the referee exer-
cises the same power as the court, to permit a party in fault to
plead anew or amend; to direct the action to be divided into two
276 Rerort or Jowr Lugistative ComMirrEer

or more actions; to award costs, and otherwise to dispose of any
questions arising upon the decision of the issue referred to him.
On a hearing before a referce or referees, the plaintiff may sub-
mit to a nonsuit or a dismissal of his complaint or may be non
suited or his complaint may be dismissed, in like manner as upon
a trial, at any time before the cause has been finally submitted
for a decision.

Where a final judgment [may] upon the whole issue must be
awarded in a referee’s report, [as prescribed in section twelve
hundred and twenty-one of this act,] the referee may make a com-
putation, or an assessment, or take an account, or proof of a fact,
for the purpose of enabling him to award the proper judgment or
enabling the court to carry it into effect; and he may ascertain
and fix the damages, as a jury may do upon the execution of a writ
of inquiry. The powers conferred by this section are exercised
in like manner and upon like terms as similar powers are exer-
cised by the court upon a trial.

[Code § 1018. The new matter in the second sentence is taken from Code
§ 1017 and Code § 1017 may now be omitted. The matter omitted from the
first sentence is unnecessary in view of the language retained that the trial
is to be conducted before the referee “in like manner” as in a trial before
a court without a jury. The new matter in the fifth sentence is from
General Rules of Practice 30. The sixth sentence is the last sentence of
Code § 1223 with the reference omitted and new matter inserted to cover
reference. See Board’s proposed rules 247 and 270.]

§ 485. Referee’s report. The following regulations shall
apply to a referee’s report:

(1.) It shall comply with the requirements as to a decision by
the court in a like case ;

(2.) Where the whole issue is an issue of fact, [which was
tried by a referee, J the report stands as a decision of the court ;

(3.) Upon the trial by a referee of an issue of fact or an issue
of law. or where a reference is made as prescribed in section
[1015] four hundred and eighty-two of this act, his written report
either must be [either] filed with the clerk or delivered to the
attorney for one of the parties within sixty days from the time
when the cause or matter is finally submitted; otherwise cither
party [may] before it is filed or delivered may serve a notice upon
the attorney for the adverse party that he elects to end the refer-
ence. In such a case the action must thenceforth proceed as if
Civit Practice Act at7T

the reference had not been directed ; and the referee is not entitled
to any fees.

{Subdivision 1 is new wording and covers Code §§ 1021 and 1022 as to
referee’s report. As to decision of court these sections are covered under
trial by court. Subdivision 2 is the first sentence of Code § 1228. The last
sentence of § 1228 is under “Judgments.” ‘Subdivision 3. is Code § 1019
without change. See Board’s proposed rule 272.]

§ 486. Requests to referee to find. Before the cause is
finally submitted to the [court or the] referee, or within such
time afterwards and before the [decision or] report is rendered
as the [court or] referee allows, the attorney for either party may
submit in writing a statement of the facts which he deems estab-
lished by the evidence and of the rulings upon questions of
law which he desires the [court:or the] referee to make. The
statement must be in the form of, [distinct propositions of law,
or of fact, or both, separately stated; each of which must be num-
bered, and so prepared with respect to its length, and the sub-
ject and phraseology thereof, that the court or referee may con-
veniently pass upon it. At or before the time, when the decision
or report is rendered, the court or the referee must note, in the mar-
gin of the statement, the manner in which each proposition has
been disposed of, and must either file, or return to the attorney,
the statement thus noted; but an omission, so to do does not affect
the validity of the decision or report] and be disposed of by the
referee as a simelar statement mm a cause submitted to the court.
An exception may be taken to a refusal of the court or referee to
find any request thus submitted.

[Code § 1023, as much as is necessary to cover requests to referee to find
facts and conclusions of law. As to similar requests to court, the section has
been covered under trial by court. See Board’s proposed rule 272. It has
been suggested to the committee that a provision be inserted in the practice
permitting a party to propose findings at any time before the settlement of
a case on appeal. The committee has not inserted such a provision but
believes the subject is worthy of consideration.]
Section +87.
485,
459.
490,

491.

492.
493.
494,
495.
496.
497.
198.

£99,

Report oF Joint LecistativeE CoMMITTEE

ARTICLE 36
JUDGMENT

JUDGMENT GENERALLY

Definition of judgment.

Judgment may be for or against any of the parties.

When several judgment mav be taken.

Judgment in action against defendants severally
liable.

Judgment on pleadings or admission of part of
cause.

Judgment when counterclaim established.

Judgment after death of party.

Demand az atfecting amount of judgment.

Interest on sum awarded to be included in recovery.

Judgment to bear interest.

Effect of judgment dismissing complaint.

Judgment where personal service is made without
the state.

Limitation of action upon judgment.

JUDGMENT BY DEFAULT

. Entry of default judgment by the clerk.
. Proof to be filed with clerk by plaintitf upon default.
. Determination by clerk of amount of default judg-

ment.

503. Judgment for excess where counterclaim interposed.

510,

. Application to court for judgment by default.
. Rendering default judgment by court.
. Application where one or more defendants have

appeared.

. Judgment by default against infant defendant.
. Judgment by default where service without state

or not personal.

. Judgment upon failure to reply.

JUDGMENT AFTER TRIAL

Judgment after verdict.
Section 511

512
513
514

Crvin Practricr Act 219

JUDGMENT AFTER APPEAL

. Final judgment after affirmance by appellate
division.

. Mode of enforcing affirmed or modified judgment.

. Docket of reversed or modified judgment.

. Judgment after motion for new trial, heard by
appellate division.

ENTRY AND DOCKET OF JUDGMENT

515

516.
517.
518.

530.
531.

. Entry of judgment in county where real property
situated.

County clerks to docket judgments.

Transcripts and docketing judgments thereon.

Judgment-roll must be filed before enforcement.

ENFORCEMENT OF JUDGMENT

. Enforcement of judgment by execution.

. Enforcement of judgment without execution.
. Place and mode of sale of real property.

. Security upon sale by referee.

. Conveyance to state name of party.

LIEN OF JUDGMENT

. Judgment not Hen until docketed.

. Lien of judgment upon real property.

. Amendment of judgment to designate judgment

debtor by name.

. Levy upon real property.

. Exemption from levy of land under contract.

. Lien of judgment subordinate to purchase-money
mortgages.

Extension of lien in certain cases.

Suspension of lien by order on appeal.

532. Time from which order suspends lien on appeal.

533.
534.

535

Suspension of lien in another county.

Restoration of lien after appeal.

. Judgment against nonresident enforceable only
against attached property.
280 Rerortr or Joy Leaisiativé ComMirrre

Section 536.
587.
538.
539.
540.
541.

542.
548.
544.

SETTING ASIDE JUDGMENT

Setting aside judgment for irregularity.

Setting aside judgment for error in fact.

Setting aside judgment after death of party.

Setting aside judgment by person not a party.

Motion to set aside where several persons entitled.

Notice of motion to set aside judgment for error in
fact.

Notice of motion; how given.

Time for motion to set aside judgment.

Restitution after judgment set aside.

SATISFACTION, ASSIGNMENT AND CANCELLATION

545.
546,

547.
548.
549.

550.
551.
552.
558.
554.

555.
556.
557.
558.
559.

560.

Satisfaction and cancellation of judgment.

Satisfaction of judgment after composition by joint
debtor.

Satisfaction-piece given on payment of judgment.

Acknowledgment of assignment of judgment.

Notice filed by certain parties has effect of assign-
ment.

Return of execution unsatisfied.

Return of satisfied execution and filing of same.

Cancellation of docket on clerk’s certificate.

Power of courts respecting docket.

Entry of assignment of judgment.

JUDGMENT BY CONFESSION

Judgment by confession without action.

Statement by defendant.

Confession by joint debtors.

Entry of judgment on filing statement.

Judgment-roll; docketing and enforcing the judg-
ment.

Execution where the judgment is not all due.

JUDGMENT ON SUBMITTED FACTS

561.
562.
563.

Submission of controversy upon agreed facts.
Filing papers on submission of controversy.
Proceedings subsequent to submission.
1
wD
me

Crviz Practice Actr

JUDGMENT GENERALLY

§ 487. Definition of judgment. A judgment is [either
interlocutory or] the [final] determination of the rights of the

parties in [the] an action, and may be either interlocutory or
final.

(Code § 1200, rewritten. The section as it now exists in the code enumer-
ates the two classes of judgments. It seems best to rearrange the language
of the section and make a definition of the term “judgment” and then
enumerate the classes. See Board’s proposed General Construction Law,
§ 26-a.]

§ 488. Judgment may be for or against any of the parties.
Judgment may be given for or against one or more plaintiffs and
for or against one or more defendants. It may determine the
ultimate rights of the parties on the same side, as between them-
selves; and it may grant to a defendant any affirmative relief to
which he is entitled.

[Code § 1204. See Board’s rule 292, which is identical.]

§ 489. When several judgment may be taken. Where the
action is against two or more defendants, and a several judgment
is proper, the court [may, in its discretion,] may render judg-
ment, or require the plaintiff to take judgment, against one or
more of the defendants; and direct that the action be severed, and
proceed against the others as the only defendants therein.

[Code § 1205. See also Board’s rule 292 which is identical].

§ 490. Judgment in action against defendants severally
liable. Where a summons issued against two or more defend-
ants alleged to be severally liable is served upon some, but not
upon all of them, the plaintiff may proceed against those upon
whom it is served as if they were the only defendants named
therein. Where it is served upon all of them, the plaintiff may
take judgment against one or more of them where he would be
entitled to judgment if the action was against him or them alone.
Where judgment is so taken, the clerk [must], upon the plain-
tiff’s application, must enter an order directing that the action
be severed and that the plaintiff may proceed against the other
defendants. In any subsequent proceeding, the plaintiff may use,
together with a certified copy of such an order, a copy of a paper
¢
282 Rerorr or Joinr Lucistarive ComMirrre

constituting a part of the judgment-roll, with like effect as if it
was the original. [The last three sections do] This section does
not affect a defense or other objection of a defendant, growing out
of the failure to join in the action two or more persons jointly
liable; and, as regards the other parties to the action, persons
jointly liable are regarded as one party for every purpose con-
templated by [those sections.] this section.

[All except last sentence is Code § 456. Last sentence is Code § 457, also

covered under “ parties.” See Board’s rules 5, 95 and 292 and Evidence Law,
§ 84. The first sentence is also placed under “ Parties-Defendant.’’]

§ 491. Judgment on pleadings or admission of part of
cause. Judgment may be rendered by the court in favor of
any party or parties, and against any party or parties, at any stage
of an action or appeal, if warranted by the pleadings or the admis-
sions of a party or parties; and a judgment may be rendered by the
court as to a part of a cause of action and the action proceed as
to the remaining issues, as justice may require.

[New. This provision was recommended by the Special Committee of the
New York County Lawyers’ Association and is similar to section 30 of the
Civil Practice Act proposed by the Special Committee of the New York State

Bar Association. Code §§ 547 and 511, first two sentences, omitted as
covered. See also Board’s Civil Practice Act, § 43 and rule 292.]

§ 492. Judgment when counterclaim established. Where
a counterclaim is established which equals the plaintiff’s demand,
the judgment must be in favor of the defendant. Where it is
less than the plaintiff’s demand, the plaintiff must have judg-
ment for the residue only. Where it exceeds the plaintiff’s
demand, the defendant must have judgment for the excess or so
much thereof as is due from the plaintiff. Where part of the
excess is not due from the plaintiff, the judgment does not
prejudice the defendant’s right to recover from another person so
much thereof as the judgment does not cancel. In a case not
specified [in the last section] herein, where a counterclaim is
established which entitles the defendant to an affirmative judg-
ment, demanded in the answer, judgment must be rendered for
the defendant accordingly.

[All except last sentence is Code § 503, without change. Last sentence is
Jode § 504, omitted by the Board as covered by rule 292.]
Civit Practice Acr 283

§ 493. Judgment after death of party. If either party to
an action dies after an accepted offer to allow judgment to be
taken or after a verdict, report or decision, or an interlocutory
Judgment, but before final judgment is entered, the court must
enter final judgment in the names of the original parties unless
the offer, verdict, report or decision, or the interlocutory judgment,
is set aside. Where a judgment for a sum of money or directing
the payment of money is entered against a party after his death,
[in a case where it may be so taken by special provision of law,
a memorandum of the party’s death must be entered with the
judgment in the judgment book, indorsed on the judgment-roll
and noted on the margin of the docket of the judgment. Such a
judgment] zt does not become a lien upon the real property or
chattels real of the decedent; but it establishes a debt to be paid
in the course of administration. [This title does not authorize
the entry of] A judgment shall not be entered against a party
who dies before a verdict, report or decision is actually rendered
against him. In that case, the verdict, report or decision is
[absolutely] void.

[First sentence is Code § 763. Second and third sentences are Code § 1210,
without change except the omission of the bracketed matter which is placed

in rules. The last sentence is Code § 765. See Board’s proposed rule 293
which is practically identical. Word “absolutely” omitted as unnecessary.]

§ 494. Demand as affecting amount of judgment. Where
there is no answer, the judgment shall not be more favorable
to the plaintiff than that demanded in the complaint. Where
there is an answer, the court may permit the plaintiff to take any
judgment consistent with the case made by the complaint and
embraced within the issue.

[Code § 1207, without change. See Board’s proposed rule 294, identical.
Code § 1208, omitted as unnecessary and obsolete. Also omitted by the Board.
See Board’s note 377.]

§ 495. Interest on sum awarded to be included in recovery.
Where final judgment is rendered for a sum of money awarded
by a verdict, report or decision, interest upon the sum awarded,
from the time when the verdict was rendered or the report or
decision was made to the time of entering judgment, must be
computed by the clerk, added to the sum awarded, and included
in the amount of the judgment.

[Code § 1235, without change. See Board’s Costs, Fees, Disbursement and
Interest Law, § 85, identical.]
98.
28+ Revorr or Jom Leas iarive Commirree

§ 496. Judgment to bear interest. A judgment for a sum
of money rendered in a court of record or not of record, or a
judgment rendered in a court of record directing the payment
of money, bears interest from the time when it is entered. But
where a judgment directs that money paid out shall be refunded
or repaid, the direction includes interest from the time when the
money was paid, unless the contrary is expressed.

[Code § 1211. See Board’s proposed Costs, Fees, Disbursements and Inter-
est Law, § 84, identical.] ,

§ 497. Effect of judgment dismissing complaint. <A final
judgment dismissing the complaint [either before or after a
trial, rendered in an action hereafter commenced.] before the
close of the plaintiff’s evidence does not prevent a new action for
the same cause of action, unless it expressly declares, or it
appears by the judgment-roll,] that it is rendered upon the merits.
A dismissal of a complaint or a counterclaim at the close of the
plaintiff's or defendant's evidence, as the case may be, or a dis-
missal of a complaint or counterclaim at the close of the whole
evidence, is a final determination of the merits of the cause of
action and bars a new action between the same parties or their
privies for the same cause of action unless the court shall dismiss
without prejudice.

[The first sentence is Code § 1209, amended as indicated. The remainder of
the section is Board’s rule 295. The effect of the section as here given will
be to leave the rule the same as it now is in case of dismissal at any time
before the close of the plaintiff’s evidence. A dismissal at any time there-
after will be deemed to be on the merits and a new action will be barred
unless the court shall dismiss without prejudice. The change in the
existing rule, namely, that a dismissal at the close of the plaintiff’s or defend-
ant’s evidence should be a final determination of the rights of the parties and
should bar another action was originally recommended by the Association
of the Bar of the City of New York.]

§ 498. Judgment where personal service is made without
the state. A judgment shall be conclusive upon a defendant
on whom the summons is personally served without the state, with
respect to the property which is the subject of the action or which
is attached therein, to the same extent as if the service upon him
were made within the state.

[Code § 443, subdivision 6. See Board’s rule 297, identical.]
Civit Practics Act 985

§ 499. Limitation of action. upon judgment. Except in a
case where it is otherwise specially prescribed in this act, an
action upon a judgment for a sum of money, rendered in a court
of record of the state, cannot be maintained between the original
parties to the judgment, unless, either

1. Ten years have elapsed since the docketing of such judgment,
or,

2. It was rendered against the defendant by default for want
of an appearance or pleading and the summons was served upon
him otherwise than personally; or

3. The court in which the action is brought has previously
made an order granting leave to bring it. Notice of the appli-
cation for such an order must be given to the adverse party, or
the person proposed to be made the adverse party, personally,
unless it satisfactorily appears to the court that personal notice
cannot be given with due diligence, in which ease notice may be
given in such a manner as the court directs.

[Code § 1913. Roard’s Debtor & Creditor Law § 1-a.]

JUDGMENT BY DEFAULT

§ 500. Entry of default judgment by the clerk. Judgment
may be taken without application to the court where the com-
plaint sets forth one or more causes of action, each consisting
of the breach of an express contract to pay absolutely or upon a
contingency a sum or sums of money fixed by the terms of the
contract or capable of being ascertained therefrom by computation
only; or an express or implied contract to pay money received or
disbursed, or the value of property delivered, or of services ren-
dered by, to, or for the use of, the defendant or a third person;
and thereupon demands judgment for a sum of money only. This
section includes a case where the breach of the contract set forth
in the complaint is only partial; or where the complaint shows
that the amount of the plaintiffs demand has been reduced by
payment, counterclaim or other credit.

[Code § 420. See Board’s rule 300, subd. 1, which contains the language
of § 420.]

§ 501. Proof tobe filed with clerk by plaintiff upon default.
In an action specified in the last section [four hundred and
twenty of this act], where the summons was personally served
~p
286 Rerort or Jornr Leaspative Commirrre

upon the defendant, and the copy of the complaint or a notice
stating the sum of money for which judgment will be taken was
served with the summons, or where the defendant has appeared
but has made default in pleading, the plaintiff may take judgment
by default, as follows:

1. If the defendant has made default in appearing, the plaintiff
must file proof of the service of the summons and of a copy of the
complaint or the notice; and also proof by affidavit that the
defendant has not appeared. Whereupon the clerk must enter
final judgment in his favor.

2. If the defendant has seasonably appeared but has made
default in pleading, the plaintiff must. file proof of the service of
the summons and of the appearance or of the appearance only;
and also proof by affidavit of the default. Whereupon the clerk
must enter final judgment in his favor.

[lf the defendant has made default in appearing or pleading
and the case is not one where the clerk can enter final judgment,
as prescribed in either of the foregoing subdivisions of this section,
the plaintiff must apply to the court for judgment, as prescribed
in section 1214 of this act.]

[Code § 1212. The last sentence is omitted as covered by Code § 1214. See

Board’s rule 300, subd. 3.
The second sentence of Code § 419 has been omitted as unnecessary in view

of Code § 1212.]

§ 502. Determination by clerk of amount of default judg-
ment. Where final judgment may be entered by the clerk, as
prescribed in the last section, the amount thereof must be
determined as follows: ‘

1. If the complaint is verified, the judgment must be entered
for the sum for which the complaint demands judgment; or,
at the plaintifi’s option, for a smaller sum; and if a computation
of interest is necessary, it may be made by the clerk.

2. If the complaint is not verified, the clerk must assess the
amount due to the plaintiff by computing the sum due upon an
instrument for the payment of money only, the non-payment of
which constitutes a cause of action stated in the complaint; and
by ascertaining by the examination of the plaintiff upon oath, or
by other competent proof, the amount due to him for any other
cause of action stated in the complaint. If an instrument specified
in this subdivision has been lost so that it cannot be produced by
Civit Practice Act 287

the clerk, he must take proof of its loss and of its contents. Either
party may require the clerk to reduce to writing and file the
assessment and the oral proof, if any, taken thereupon.

[Code § 1213. See Board’s rule 300 subd. 4, verbatim.]

§ 503. Judgment for excess where counterclaim inter-
posed. In an action upon contract where the complaint demands
judgment for a sum of money only, if the defendant by his answer
does not deny the plaintifi’s claim but sets up a counterclaim
amounting to less than the plaintiff’s claim, the plaintiff upon filing
with the clerk an admission of the counterclaim may take judg-
ment for the excess as upon a default for want of an answer.
[The admission must be made a part of the judgment-roll.]

[Code § 512, except the last sentence. The last sentence ig omitted as

covered by the provision reciting what shall be a part of the judgment-roll.
See Board’s rule 300 subd. 2, idertical.]

§ 504. Application to court for judgment by default. Where
the summons was personally served upon the defendant within
the state and he has made default in appearing, or where the
defendant has appeared but has made default in pleading, and
the case is not one where the clerk can enter final judgment, as
prescribed in [the last two] sections five hundred and one and
five hundred and two of this act, the plaintiff may apply to the
court or to a judge [or justice] thereof [out of court,] for
judgment.

[Code § 1214, first sentence. The remainder of the section is placed in

rules. The bracketed words are unnecessary. See Board’s rule 301, opening
paragraph, covering the above in substance.]

§ 505. Rendering default judgment by court. The court or
[a] judge [or justice thereof] upon an application by a plaintiff
for judgment by default, upon the filing by the plaintiff of proof
of default, [must] thereupon must render the judgment to which
the plaintiff is entitled. It, or they may] and, with or without
a jury, [or with a jury, if one is present in court,] may make a
computation or assessment or take an account or proof of a fact,
[for the purpose of enabling it, or them, to render the judgment or
to carry it into effect; or it} or [they] may [in its, or their dis-
eretion,§ direct a reference or a writ of inquiry, [for either
purpose ;J execpt that where the action is hronght to recover
288 Report or Jorwnt LacisLativE ComMITTEE

damages for a personal injury or an injury to property, the
damages must be ascertained by means of a writ of inquiry or by
« jury in court. Where a reference or writ of inquiry is directed,
the court or [a] judge [or justice thereof,] may direct that the
report or inquisition be returned to the court or [a] judge [Lor
justice thereof,J for [its, or their,] further action; or [it, or
they, may in its, or their discretion], except where special
provision is otherwise made by law, [omit that direction; in
which case] may direct that final judgment [may] be entered by
the clerk in accordance with the report of the referee, or for the
damages ascertained by the inquisition, without any further
application.

[Code § 1215. See Board’s rule 301, subds. 3 and 4 which are the same in
substance as the above.]

§ 506. Application where one or more defendants have
appeared. If one or more of the defendants have appeared and
one or more defendants have failed to appear, [then the] an appli-
cation by a plaintiff for judgment by default must be made to
the court unless the defendants who have appeared consent to the
making of such application to a judge [or justice] out of court.

[Code § 1214, last sentence. The Board omitted this sentence as “ suffi-
ciently covered by text.”] ,

§ 507. Judgment by default against infant defendant. A
judgment by default shall not be taken against an infant defend-
ant until twenty days have expired since the appointment of a
guardian ad litem for him.

[Code § 1218. See Board’s rule 303, verbatim.]

Ԥ 508. Judgment by default where service without state
or not personal. 7. Where [the] a summons was served upon
[the] a defendant without the state or otherwise than person-
ally, if the defendant does not demand a copy of the complaint,
or plead, as the case requires, within twenty days after the service
is complete, the plaintiff may apply to the court or a judge [or
justice] thereof for the judgment demanded in the complaint.

2. A judgment shall not be rendered for a sum of money only,
upon an application made [pursuant to the last section] hereunder,
except in an action [specified in section 635 of this act]] (a) for
Civit Practice Aut 289

breach of contract, express or implied, other than a contract to
marry, (b) wrongful conversion of personal property, (c) an
imgury to person or property in consequence of negligence, fraud
or other wrongful act; nor, in such an action, where the defendant
as a non-resident or a foreign corporation, and has not appeared,
unless the plaintiff upon such application shall file proof that a
warrant of attachment, granted in the action, has been levied upon
property of the defendant.

[Subd. 1 is Code § 1216, first sentence. The remainder of the section is
placed in rules. See Board’s rule 304, subd. 3. Subd. 2, first part is first
sentence of Code § 1217. The last part of subd. 2 covers all of the remainder
of section 1217 which should be in the statute. The part omitted is covered
by rules.]

§ 509. Judgment upon failure to reply. If the plaintiff
fails to reply [or demur] to the counterclaim, the defendant may
apply, upon notice, for judgment thereupon; and, if the case
requires, [it] a reference or assessment by a jury in court may
be ordered or a writ of inquiry may be issued as [prescribed in
chapter eleventh of this act]] where the plaintiff applies for judg-
ment.

[Code § 515. Omitted by the Board as covered by rule 299, but does not
appear to be so covered. Reference to “assessment by a jury in court” is

inserted ag there are cases when such a means of determining damages would
be of advantage. ]

JUDGMENT AFTER TRIAL

§ 510. Judgment after verdict. Upon the application of the
party in whose favor a general verdict is rendered, the clerk
must enter judgment in conformity to the verdict, unless a
different direction is given by the court or it is otherwise specially
prescribed by law. A motion for judgment upon a special verdict
may be made by either party[; and must, in the first instance,
be heard and decided, at a term held by one judge]. A motion
for judgment upon a verdict subject to the opinion of the court
may be made by either party; and must be heard and decided
at a term of the appellate division of the supreme court.

[First sentence is Code § 1189, last sentence. Second sentence is Code
§ 1233, and last sentence is Code § 1234. See Board’s proposed rules 309, 310.1]

10
ry seevade anaes :
290 Reporr or Jom LectstarivE ComMMrrrer

JUDGMENT AFTER APPEAL

§ 511. Final judgment after affirmance by appellate divi-
sion. When an order or judgment is wholly or partly affirmed
upon an appeal to the appellate division of the supreme court,
and no issue of fact remains to be tried, the appellate division
[may], in its discretion, may vender. final judgment, unless it
permits the appellant to amend or plead over.

[Code § 1224, without change. See Board’s proposed Judiciary Law, § 63,
last sentence, which is identical.]

§ 512. Mode of enforcing affirmed or modified judgment.
Where a judgment from which an appeal has been taken from one
court to another is wholly or partly affirmed or is modified upon
the appeai, it must be enforced by the court in which it was ren-
dered to the extent permitted by the deterraination of the appellate
court as if the appeal therefrom had not been taken.

[Code § 1319, without change. Now under “ Appeals Generally” in the
Code. Omitted by the Board as covered hy rule 380.]

§ 513. Docket of reversed or modified judgment. 1. Where
a final. judgment for a.sum of money or directing the payment
of a sum of money has been reversed, or has been affirmed as
to part only of the sum, upon an appeal to the supreme court from
an inferior court or an appeal to the appellate division of the
supreme court, taken as prescribed in [title third or fourth of]
this chapter; and an appeal to the court of appeals is not taken and
perfected, and the security required to stay execution is not given.
within ten days after the entry of the judgment upon the appeal in
the clerk’s office where the judgment appealed from is entered, the
clerk must make a minute of the reversal of the judgment, or of
the amount to which it has been reduced, upon his docket-book
in each place where the judgment is docketed. .\ transcript of
the docket as thus corrected must be furnished hy him and may
be filed in any county clerk’s office where the original judgmeyt
is docketed, as prescribed by law, with respect to the original
docket; and thereupon the county clerk must correct his docket
accordingly. The lien of a judgment, the docket of which is not
corrected as prescribed in this [section] subdivision, remains
unaffected by the reversal or modification thereof until the decis-
ion of the court of appeals upon an appeal from the judgment
Cwit Practier Aor 291

reversing or modifying the same or the expiration of the time
to take such an appeal.

2. Where a final judgment for a sum of money or directing
the payment of a sum of money has been reversed, or affirmed as
to part only of the sum, upon an appeal to the court of appeals,
the docket may be corrected, as prescribed in the last [section]
subdivision, at any time after the remittitur has been filed in the
court below.

{Subdivision 1 is Code § 1321, now under the heading “Appeals” in the
Code. See Board’s proposed County Law § 178, identical.

Subdivision 2 is Code § 1322, now under “Appeals” in the Code. See
Board’s proposed County Law § 178, identical. ]

§ 514. Judgment after motion for new trial, heard by
appellate division. Where a motion for a new trial, made [at]
wn the first instance at a term of the appellate division of the
supreme court, is denied, judgment may be taken as if the motion
for a new trial had not been made, after [the expiration of four
days from] the entry of the order and the service upon the
attorney for the adverse party of a copy thereof, and notice of the
entry[; but not before].

[Code § 1227, amended as indicated. The Board omitted this section as

covered by rule 313.

The Board, in carrying into the rule the decision of the court in Martin v.
Platt, 131 N. Y. 641, that judgment taken after a denial of a motion for new
trial is deemed the judgment of the appellate division and not of the court’
below, omitted the provision contained in Code § 1227 authorizing the entry
of judgment as though no motion has been made. The Committee retains the
language of the first part of section 1227 and the decision in Martin v. Platt,
supra, will still be applicable. The last clause is omitted as now unnecessary.
Originally both section 1227 and section 1228 of the Throop Code contained
a “four days’” limitation. This limitation has since been stricken frora
section 1228 and may now be omitted from this section.]

§ 515. Entry of judgment in county where real property
situated. Where real property, sold by virtue of a judgment
rendered in an action [specified in the last section] directing the
sale thereof, is situated in a county other than that in which the
judgment is entered, the judgment must be also entered in the
office of the clerk of the county wherein the property is situated,
before the purchaser can be required to pay the purchase-money,
or to accept a deed. The clerk of the latter county must enter it
292 Rerorr or Joinr Leatsuative ComMIT?rrE

in the judgment-book kept by him upon filing with him a copy
thereof certified by the clerk with whom it is entered.

[Code § 1677, broadened to apply to any action in which real property is
sold by virtue of a judgment. The section at present is applicable only to
actions for ejectment, partition and dower. See Board’s proposed rule 316
where the present limitations are retained. ]

§ 516. County clerks to docket judgments. Each county
clerk[[, specified in the last section must], when he files a judg-
ment-roll, upon a judgment rendered in a court of which he is
clerk, must docket the judgment by entering in the proper docket-
book the following particulars, under the initial letter of the
surname of the judgment debtor, in its alphabetical order:

1. The name, at length, of the judgment debtor; and also his
residence, title, and trade or profession, if any of them are stated
in the judgment.

2. The name of the party in whose favor the judgment was
rendered.

3. The sum recovered or directed to be paid, in figures.

4. The day, hour and minute when the judgment-roll was
filed.

5. The day, hour and minute when the judgment was docketed
in his office.

6. The court in which the judgment was rendered, and, if it was
rendered in the supreme court, the county where the judgment-roll
is filed.

7. The name of the attorney for the party recovering the
judgment.

If there are two or more judgment. debtors, those entries must
be repeated under the initial letter of the surname of each.

[Code § 1246, without change except that the section is here limited to
county clerks. Section 1245 referred to as “the last section” provides for
county clerks and the clerk of the city court of New York. The city court
clerks are covered in the New York City Court Act. The Board placed the

whole section including the reference to New York City Court Clerks in
County Law as section 175.]

§ 517. Transcripts and docketing judgments thereon. A
elerk with whom a judgment-roll is filed upon a judgment
docket as prescribed [in the last section] by Jaw, must furnish
to any person applying therefor and paying the fees allowed by
law, one or more transcripts of the docket of the judgment,
Civit Practice Acr 292

attested by his signature. A county clerk to whom such a tran-
script is presented, [must,]} upon payment of his fees therefor,
immediately must file it, and docket the judgment, as prescribed
[in the last section] by law, in the appropriate docket-book kept
in his office.

[Code § 1247. See Board’s proposed County Law §§ 179b, 179c.]

§ 518. Judgment-roll must be filed before enforcement.

A proceeding to enforce or collect a final judgment cannot be taken
until the judgment-roll is filed.

[Code § 1239, last sentence. Omitted by the Board as covered by rule 378.]

ENFORCEMENT OF JUDGMENT

§ 519. Enforcement of judgment by execution. In either of
the following cases a final judgment may be enforced by execution:

1. Where it is for a sum of money in favor of either party; or
directs the payment of a sum of money.

2. Where it is in favor of the plaintiff in an action of ejectment
or for dower.

3. In an action to recover a chattel, where it awards a chattel
to either party.

[Code § 1240. Omitted by the Board as covered by its rule 378.]

§ 520. Enforcement of judgment without execution. In
either of the following cases a judgment may be enforced by
serving a certified copy thereof upon the party against whom it
is rendered, or the officer or person who is required thereby or
by law to obey it; and, if he refuses or wilfully neglects to obey
it, by punishing him for a contempt of the court:

1. Where the judgment is final and cannot be enforced by
execution, as prescribed in the last section.

2. Where the judgment is final and part of it cannot be
enforced by execution, as prescribed in the last section, in which
case the part or parts which cannot be so enforced may be enforced
as prescribed in this section.

3. Where the judgment is interlocutory and requires a party
to do or to refrain from doing an act, except in a ease specified
in the next subdivision.

4, Where the judgment requires the payment of money into
coy ;
294 Rtevorr or Jour Leaisnarive ComMirrien

court, or to an officer of the court; except where the money is due
upon a contract, express or implied, or as damages for non-per-
formance of a contract. In a case specified in this subdivision, if
the judgment is final, it may be enforced, as prescribed in this
section, either simultaneously with, or before, or after the issuing
of an execution thereupon, as the court directs.

[Code § 1241. Omitted by the Board as covered by rule 378, quoted in note
to the last section.]

§ 521. Place and mode of sale of real property. Except
where special provision is otherwise made by law, real property
adjudged to be sold must be sold in the county [and borough]
where it is situated, by the sheriff of the county, or by a referee
appointed by the court for that purpose, who must execute a con-
veyance to the purchaser. If such real property is situated
partly in one county [or borough] and partly in another and is
so circumstanced that a sale of the whole will be most beneficial to
the parties, the court rendering judgment may direct in which
county [and borough] the whole of such real property shall be
sold. The conveyance is effectual to pass the right, title or inter-
est of a party adjudged to be sold[[; but nothing contained in this
section, shall be deenied to repeal or modify the provisions of
any law specially regulating the sale of real property under a
judgment or decree of any court, in any particular county of the
state].

[Code § 1242. The last clause of the last sentence is omitted as covered by
the exception contained in the first sentence “ Except where special provision
is otherwise made by law.” The references to “ borough ” are omitted as now
obsolete. Reference to referee in Code § 1560, covered. The Board placed the
entire section in proposed Real Property Law § 656, under the heading
“Sale and Redemption” and part under “Conveyance and Mortgages,” as
section 275.]

§ 522. Security upon sale by referee. Where a referee is
appointed by the court to sell real property, the court may pro-
vide for his giving such security as the court deems just for the
proper application of the money received upon the sale; or for
the payment thereof by the purchascr directly to the person or
persons entitled thereto or their attorneys.

[Code § 1243. See Board’s proposed Real Property Law § 657, identical.]
Cin Pracrics Acr 255

§ 523. Conveyance to state name of party. <A conveyance
of property sold [by virtue of an execution, or sold] pursuant to
a judgment which specifies the particular party or parties whose
right, title or interest is directed to be sold, must distinctly state
in the granting clause thereof, whose right, title or interest was
sold, and is conveyed, without naming in that clause any of the
other parties to the action: otherwise, ‘the purchaser is not bound
to accept the conveyance, and the officer executing it is liable for
the damages which the purchaser sustains by the omission, whether
he accepts or refuses to accept it.

[Code § 1244. See Board’s proposed Real Property Law § 276, identical.]

LIEN OF JUDGMENT

§ 524. Judgment not lien until docketed. A judgment
wholly or partly for a sum of money or directing the payment of
a sum of money, required to be docketed, [as prescribed in this
article] neither affects real property or chattels real, nor is enti-
tled to a preference, until the judgment-roll is filed and the judg-
ment docketed.

[Code § 1250. New matter is from Code § 1272. See Board's proposed
Lien Law, § 186.]

§ 525. Lien of judgment upon real property. Except as
otherwise specially prescribed by law, and except also as in this
and the next section [below] provided, a judgment wholly or
partly for a sum of money or directing the payment of a swm of
money, hereafter rendered, which is docketed in a county clerk’s
office, as prescribed in this [article] chapter, binds, and is a
charge upon, for ten years after filing the judgment-roll, [and
no longer,] the real property and chattels real, in that county,
which the judgment debtor has at the time of so docketing it, or
which he acquires at any time afterwards, and within the ten
years. Provided, however, that no judgment shall be a charge
upon [or bind] the real property of any person unless and until
he be designated by his name in a docket of such judgment in the
office of the clerk in the county where such property is located.

[Code § 1251, first two sentences. New matter is from Code § 1272. See
Board’s proposed Lien Law § 187, identical. See the section following for
the remainder of Code § 1251.]
296 Revorr or Jornry Leaisiarive Commiirrer

§ 526. Amendment of judgment to designate judgment
debtor by name. Upon such notice to a judgment debtor as the
court may direct, the supreme court may order that any judgment
heretofore or hereafter rendered therein against such debtor
wholly or partly for a sum of money or directing the payment of
a sum of money, be amended so as to designate such debtor by his
name and that the clerk of the county in which the judgment-roll
is filed redocket such judgment as so amended; and from the time
of such redocket during the remainder of ten years from the filing
of the judgment-roll, such judgment shall bind and be a charge
upon the real property and chattels real in that county which such
judgment debtor may have at the time of such redocket or may
thereafter within said ten years acquire, and a transcript of such
new docket may be filed and docketed in the office of the clerk of
any other county in the state in like manner and with like effect
as a transcript of an original docket may be filed. Upon such
notice to a judgment debtor as the court may direct, any court
other than the supreme court may order that any such judgment
heretofore or hereafter rendered therein against such debtor and
any docket thereof in such court be amended so as to designate
such debtor by his name, and at any time after such amendment
shall have been made a transcript of the docket of such judgment
as so amended may be filed and docketed in the office of the clerk
of any county in this state in like manner and with like effect as
a transcript of an original docket may be filed.

[Code § 1251, all except first two sentences which have been made a
separate section. See the preceding section. New matter is from Code § 1272.

See Board’s proposed Lien Law § 187 and Debtor and Creditors Law, § 1m,
covering the above provisions and identical.] "

§ 527. Levy upon real property. When ten years after
filing the judgment-roll have expired, real property or a chattel
real which the judgment debtor, or real property which a person
deriving his right or title thereto as the heir or devisee of the
judgment debtor, then has in any county, may be levied upon by
virtue of an execution against property, upon a judgment wholly
or partly for a sum of money or directing the payment of a sum
of money, issued to the sheriff of that county, [upon a judgment
hereafter rendered,] by filing with the clerk of that county a
notice, subscribed by the sheriff, describing the judgment, the
execution, and the property levied upon; and, if the interest
QO1vin Practice Act 297

levied upon is that of an heir or devisee, specifying that fact and
the name of the heir or devisee. The notice must be recorded and
indexed by the clerk as a notice of the pendency of an action.
For that purpose, the judgment debtor, or his heir or devisee,
named in the notice, is regarded as a party to an action. The
judgment binds and becomes a charge upon the right and title
thus levied upon of the judgment debtor or of his heir or devisee,
as the case may be, only from the time of recording and indexing
the notice, and until the execution is set aside or returned.
[Code § 1252. New matter is from Code § 1272. See Board’s proposed

Real Property Law § 710, identical, except the Board omitted the limitation
from Code § 1272.]

§ 528. Exemption from levy of land under contract. The
interest of a person holding a contract for the purchase of real
property is not bound by the docketing of a judgment wholly or
partly for a sum of money or directing the payment of a sum
of money; and cannot be levied upon or sold by virtue of an
execution issued upon such a judgment.

[Code § 1253, new matter is from Code § 1272. See Board’s proposed Real
Property Law, § 638.]

§ 529. Lien of judgment subordinate to purchase-money
mortgages. Where real property is sold and conveyed, and
at the same time a mortgage thereupon is given by the pur-
chaser to secure the payment of the whole or a part of the pur-
chase-money, the lien of the mortgage upon that real property is
superior to the lien of a previous judgment wholly or partly for a
sum of money or directing the payment of a sum of money against
the purchaser.

[Code § 1254. New matter is from Code § 1272. See Board’s proposed
Real Property Law, § 250a.]

§ 530. Extension of lien in-certain cases. The time during
which a judgment creditor is stayed by an injunction or other
order or by the operation of an appeal or by express pro-
vision of law from enforcing a judgment is not a part of the ten
years to which the lien of a judgment wholly or partly for a sum
of money or directing the payment of a sum of money is limited
[by this article]. But this section does not extend the time of
298 Reporr or Joie Leqistarive Coxrrrrr

the lien as against a purchaser, creditor or mortgagee in good

faith.

[Code § 1255. New matter is from Code § 1272. See Board’s proposed
Lien Law § 193, identical, except the omission by the Board of the limitation
in section 1272.]

§ 531. Suspension of lien by order on appeal. Where an
appeal from a judgment wholly or partly for a swm of money
or directing the payment of a swm of money has been perfected,
and an undertaking has been given sufficient to entitle the appel-
lant to a stay of the execution of the judgment without an order
for that purpose, the court in which the judgment was recovered
[may], in its discretion and upon such terms as justice requires,
may make an order upon notice to the attorney for the respondent
and to the sureties in the undertaking, exempting from the lien of
the judgment as against judgment creditors and purchasers and
mortgagees in good faith the real property or chattels real upon
which the judgment is a lien, or a portion thereof, specifically
described in the order. If all the property subject to the lien is
so exempted, the order must direct the clerk in whose office the
judgment-roll is filed to make an entry on the docket of the judg-
ment in each place where it appears in the docket-book, substan-
tially as follows: “Lien suspended upon appeal. See order
entered ;” adding the proper date. If a portion only is exempted
the order must direct the clerk to make in like manner an entry
substantially as follows: “ Lien partially suspended upon appeal.
See order entered ;” adding the proper date. The clerk [must],
when he files the motion papers and enters the order, must make
the entry or entries in the docket-book as required hy the order.

[Code § 1256. New matter is from Code § 1272. See Board’s rule 320,
identical in substance.]

§ 532. Time from which order suspends lien on appeal.
Where an order is made, as prescribed in the last section, by the
supreme court or by a county court, it operates as a suspension
of the lien upon property situated in the county where the judg-
ment-roll is filed from the time when the order is entered and
the proper entry made in the docket-book. If the property
exempted is situated in another county, or if the order was made
by a court, other than the supreme court or a county court, the
order operates as a suspension from the time when the proper
Crvitn Practice Act 299

entry is made in the docket-book kept by the clerk of that county,
as prescribed in the next section.

(Code § 1257. See Board’s proposed Lien Law, § 194, identical.]

§ 533. Suspension of lien in another county. The clerk
with whom the order is entered, [must] upon payment of his fees
therefor, must furnish to the party who obtained the order one or
more transcripts, attested by his signature, of the docket of the
judgment, including the entry made upon the docket. A county
cierk in whose office the judgment is docketed, [must] upon pay-
ment of his fees therefor, immediately must file such a transcript
and make an entry upon the docket of the judgment in each place
where it appears in his docket-book, substantially as follows:
“Lien suspended”, or, “ Lien partially suspended ”, according to
the entry upon the original docket, and also “See transcript filed ” ;
adding the proper date.

[Code § 1258. See Board’s proposed County Law § 79d, idenfical.]

§ 534. Restoration of lien after appeal. At any time after a
judgment which has ceased to be a lien, as prescribed in the
last three sections, is affirmed, or the appeal therefrom is dis-
missed, the lien thereof may be restored, as follows:

1. The clerk in whose office the judgment of affirmance or the
order dismissing the appeal is entered, [must,] upon the request
of the judgment creditor, must docket the judgment anew as it
was originally docketed, but in the order of priority of the new
docket; and he must write upon the new docket the words “ Lien
restored by redocket ”; adding the date of redocketing.

2. A transcript of the new docket must be furnished to a county
clerk in whose office an entry of the suspension of the lien has
been made as prescribed in the last two sections; and thereupon
the judgment must be docketed by him anew in the order of the
priority of the new docket. The clerk who so redockets the judg-
ment must make an entry upon the new docket, substantially as
follows: “Lien restored by redocket. See transcript filed”;
adding the date of redocketing in his county.

The lien of the judgment is thereupon restored for the unex-
pired period thereof as if the order had not been made; but with
like effect only, as against judgment creditors. purchasers and
800 Reporr or Jowr Leatsiarive Commrrrre

mortgagees in good faith, as if the judgment had then been first
docketed.

[Code § 1259. See Board’s proposed Lien Law, § 195, identical.]

§ 535. Judgment against non-resident enforceable only
against attached property. Where a defendant who has not
appeared is a non-resident of the state, or a foreign corporation,
and the summons was served without the state, or by publication
pursuant to an order obtained for that purpose, [as prescribed in
chapter fifth of this act,] the judgment can be enforced only
against the property which has been levied upon by virtue of
[the] a warrant of attachment at the time when the judgment is
entered. But this section does not declare the effect of such a
judgment with respect to the application of any statute of
limitation.

[Code § 707. Board’s Civil Rights Law § 203.]

SETTING ASIDE JUDGMENT

§ 536. Setting aside judgment for irregularity. A motion
to set aside a final judgment for irregularity shall not be heard
after the expiration of one year since the filing of the judg
ment-roll, unless notice thereof is given for a day within the
year, and either the hearing is adjourned by one or more orders
until after the expiration of the year; or the term for which it is
thus noticed is not held. In the latter event the motion may be
re-noticed for and heard at the next term at which it can be made[,
held not less than ten days after the day when the first term was
appointed to be held].

[Code § 1282 with the omission of the time limitation in the last sentence.
See Board’s proposed rule 322.]

§ 537. Setting aside judgment for error in fact. A motion
to set aside a final judgment rendered in a court of record,
for error in fact not arising upon the trial, may be made by the
party against whom it is rendered; or, if an execution has not been
issued thereon, and the fadennen hue not been wholly or partly
satisfied or sitoreed, by the party in whose favor it is rendered.

[Code § 1283. See Board’s rule 323.]
Civit Practice Act 301

§ 538. Setting aside judgment after death of party. A
like motion may be made, after the death of a party entitled to
make it, as prescribed in the last section, by the following persons:

1. Where the judgment awards a sum of money, or a chattel,
or an interest in real property, which is declared by law to be
assets, the motion may be made by his executor or administrator.

2. Where the judgment awards real property, or the possession
thereof, or where the title to or an estate or interest in real prop-
erty is determined or affected thereby, the motion may be made
by the heir of the decedent to whom the real property descended,
or might have descended, or by the person to whom he devised it.

3. Where the judgment is rendered against or in favor of two
or more persons, the motion may be made jointly by the survivor
and the person who would have been entitled to make it if the
judgment had been rendered in favor of or against the decedent
only.

[Code § 1284. See note to preceding section.]

§ 539. Setting aside judgment by person not a party. A
motion may be made, either before or after the death of the
defendant, by a person who is not a party, to set aside, for error
in fact not arising upon the trial, a judgment rendered in an
action against a tenant for life or for years awarding real prop-
erty or the possession of real property in which the person making
the motion has an estate, or interest, in reversion or remainder.

[Code § 1285. See Board’s rule 324, identical.]

§ 540. Motion to set aside where several persons entitled.
Where two or more persons are entitled to move to set aside
a judgment, as prescribed in the last three sections, one or
more of them may move separately [but, in that case, notice of
the motion must be given to those who do not join therein, in like
manner as if they were adverse parties].

[Code § 1286. Bracketed provision is placed in Subd. 4 of the next section.
Omitted by the Board “ in view of change in practice.” See note 410.)

§ 541. Notice of motion to set aside judgment for error
in fact. 1. Notice of a motion to set aside a final judgment for
error in fact not arising upon the trial must be given to the adverse
party or, in case of his death, to each person who might have
302 Repvorr or Jom? Lreowpiarwe Comairrex

moved, as against the moving party, to set aside the judgment for
the same cause[[, as prescribed in this title].

2. Where the motion is made by the party against whom the
judgment i is rendered or by his heir, devisee, executor or adminis-
trator, service of the notice upon the attorney of record for the
party. in whose favor the judgment is rendered has the like effect
as if it‘was served upon the party.

8. Where the judgment awards real property, or the possession
thereof, or where the title to, or an estate or interest in, real prop-
erty is determined or affected thereby, and the real property or
estate or interest therein has been conveyed by the adverse party
more than eight days before the hearing of the motion, notice of
the motion must also be given to each actual occupant of the
property claiming under the conveyance.

Jj... Where two or more persons are entitled to move to set aside
a judgment [as prescribed in the last three sections] and one
or more of them [may] move separately[; but in that case]. as
prescribed in the last section, notice of the motion must be given to
those who do not join therein in like manner as if they were adverse
parties.

[Subdivision 1 is Code § 1287, first sentence. Subdivision 2 is Code § 1287,
last sentence. Subdivision 3 is Code § 1288. Subdivision 4 is Code § 1286.

All of these Code sections were omitted by the Board “in view of the change
in practice.” (See note 410).]

§ 542. Notice of motion; how given. Notice must be given,
in a case specified in [this title] the six preceding sections,
hy personal service of a written notice, or of an order to show
cause [why the motion should not be granted; or], except that if
a person entitled to notice cannotf[, with due diligence J be found
within the state, with due diligence, notice shall be given in any
manner which the court or a judge thereof directs [in an order to
show cause, or which the court directs in a subsequent order].

[Code § 1289. Omitted by the Board. See note 410.]

§ 543. Time for motion to set aside judgment. .\ motion
to set aside a final judgment, for error in fact not arising
upon the trial, shall not be heard, except as herein specified [in
the next section], after the expiration of two years since the filing
of the judgment-roll, unless notice thereof is given for a dav
within the two years; and either the hearing is adjourned, by one
Civin Pracricz: Acr 303

or more orders, until after the expiration of the two years; or
the term for which it is thus noticed is not held. In the latter
event, the motion may be re-noticed for, and heard at, the next
term at which it can be made, held not less than ten days after
the day when the first term was appointed to be held.

If the person against whom the judgment is rendered is, at the
time of filing the judgment-roll, either

1. Within the age of twenty-one years; or

2. Insane; or

3. Imprisoned on a criminal charge, or in execution upon con-
version of a criminal offense, for a term less than for life; _

The time of such a disability is not a part of the time limited
by [the last] this section; except that the time within which the
motion may be heard cannot be extended more than five years hy
such a disability, nor, in any case, more than one year after the
disability ceases.

[Code § 1290 and § 1291, without change. See Board’s proposed Debtor
& Creditor Law, § 1-e.]

§ 544. Restitution after judgment set aside. Where a
judgment is set aside for any cause, upon motion, the court may
direct and enforce restitution, in like manner, with like effect
and subject to the same conditions, as where a judgment is reversed
upon appeal.

[Code § 1292. See Board’s proposed Judiciary Law, § 31-m, identical.]

SATISFACTION, ASSIGNMENT AND CANCELLATION

§ 545. Satisfaction and cancellation of judgment. The
docket of a judgment wholly or partly for w sium of money or
directing the payment of a sum of money must be cancelled and
discharged by the clerk in whose office the judgment-roll is filed,
or by the clerk of any county where a transcript of said judgment
shall have been docketed, upon filing with him a satisfaction-piece,
describing the judgment, and executed as follows:

1. Except as otherwise prescribed in the next subdivision, the
satisfaction-piece must be executed by the party in whose favor
the judgment was rendered, or his executor or administrator; or,
if it is made within two years after the entry of judgment, or
after the entry of final judgment or order of affirmance, by the
attorney of record of the party. But where the authority of the
804 Report or Joint LeaisLativE CoMMITTEE

attorney has been revoked, a satisfaction by him is not con-
clusive against the person entitled to enforce the judgment, in
respect to a person who had actual notice of the revocation before
a payment on the judgment was made or a purchase of property
bound thereby was effected.

2. If an assignment of the judgment, executed by the party
in whose favor it was rendered, or his executor or administrator,
has been filed in the clerk’s office, the satisfaction-piece must be
executed by the person who appears, from the assignment, or
from the last of the subsequent assignments, if any, so filed, show-
ing a continuous chain of title, to be the owner of the judgment,
or by his executor or administrator.

3. If the satisfaction-piece is executed by an attorney in fact,
in behalf of a person authorized to execute it, other than the
attorney of record, an instrument, containing a power to acknowl-
edge the satisfaction, must be filed with the satisfaction-piece,
unless it has been recorded in the proper book for recording
deeds, in that or another county; in which case, the satisfaction-
piece must refer to the record, and the clerk [may], for his own
indemnity, may require evidence of a record remaining in another
office.

The execution of each satisfaction-piece or power of attorney
must be acknowledged before the clerk or his deputy and certi-
fied by him thereupon; or it must be acknowledged or proved and
certified in hke manner as a deed to be recorded in the county
where it is filed.

4. In the absence of a satisfaction-piece under any of the fore-
going provisions of this section, the docket of a judgment must
be cancelled, satisfied and discharged, by the clerk in whose office
the judgment-roll is filed, at any time, if the judgment debtor or
his legal representatives or any other person shall deposit with
such clerk a sum of money equal to the amount of the judgment,
or if the docket shows a partial satisfaction thereof, the unpaid
residue thereof, with interest to the time of such deposit and in
addition thereto a sum equal to one per centum of said judgment
or unpaid residue. ‘There shall be delivered to such clerk with
such a deposit a certificate of the sheriff of the same county dated
on the day of such deposit that no execution upon the judgment is
in his hands. Upon any such payment and delivery of such
certificate the clerk shall enter upon the judgment docket the
words “ satisfied and discharged by deposit.” All the provisions

 
Crvin Practice Act 305

of section [twelve hundred and sixty-seven] five hundred and
fifty-two of this act so far as they affect, shall be applicable to
this subdivision of this section, except that the clerk of |
a county with whom a judgment has been docketed, but
with whom the judgment-roll has not been filed, before filing the
transcript and cancelling and discharging the docket of a judg-
ment satisfied of record pursuant to this subdivision of this
section, shall also require to be delivered to him, in addition to
the certificate provided for in said section [twelve hundred
and sixty-seven of this act], a certificate of the sheriff of the
same county showing that no execution is in his hands or that an
execution is in his hands and that he has received payment of all.
fees to which he would by law be entitled if he had collected by
virtue of an execution the amount of said judgment or unpaid
residue thereof with interest. It shall be the duty of such sheriff
to accept such fees without payment to him of the amount of the
judgment or any part thereof, upon there being delivered to him
a certificate of the clerk with whom the judgment-roll is filed,
showing that the judgment has been satisfied of record; and it
shall be the duty of any sheriff to give any and all certificates
required under this subdivision of this section, upon compliance
with the provisions hereof, and he shall be entitled to receive fifty
cents for each certificate. All deposits of money hereunder
shall be considered as paid into court and shall be subject to the
provisions of [the code of civil procedure] statute and rules
relative to the payment of money into court and the surrender
of such money by an order of the court. The additional one per
centum to be deposited as aforesaid shall be in payment of all fees
of the financial officer of the city or county with whom any money
is deposited hereunder. But no provision of this subdivision shall
affect the right of the judgment creditor to appeal from the judy-
ment, or make any motion with respect thereto, nor shall any pro-
ceedings on appeal be affected by this subdivision.

[Code § 1260. The new matter in the first paragraph is from Code § 1272.

Board’s proposed Debtor and Creditor Law § 1-K, identical, except that it
does not contain the limitation from Code § 1272.]

§ 546. Satisfaction of judgment after composition by joint
debtor. An instrument specified in section two hundred and
thirty of the debtor and creditor law, executed by a creditor releas-
ing or discharging a compounding joint debtor, is deemed a satis-
306 Reporr or Joiner Lecistarrve ComMrrrer

faction-piece for the purpose of discharging, as prescribed in sec-
tion [twelve hundred and sixty] five hundred and fourteen of
this act. the docket of a judgment, recovered upon an indebtedness
released or discharged thereby, as far as the judgment affects the
compounding debtor. Where the docket of a judgment is dis-
charged thereupon, a special entry must be made upon the docket

to the effect that the judgment is satisfied as to the compounding
debtor only.

[Code § 1943, without change in substance. See Board’s proposed Debtor
and Creditor Law, § ln, practically identical.]

§ 547. Satisfaction-piece given on payment of judgment.
The person entitled to enforce a judgment wholly or partly for a
sum of money or directing the payment of a sum of money must
execute, and acknowledge before the proper officer, a satisfaction-
piece thereof, at the request of the judgment debtor or of a person
interested in the property bound by the judgment, upon presenta-
tion of a satisfaction-piece and payment of the sum due upon
the judgment and the fees allowed by law for taking the acknowl-
edement of a deed.

[Code § 1261. New matter is from Code § 1272. See Board’s proposed
Debtor and Creditor Law § 1-1, identical.]

§ 548. Acknowledgment of assignment of judgment. A
person who has heretofore executed, or who hereafter executes, a
written assignment of a judgment, wholly or partly for a sum of
money or directing the payment of a sum of money, owned by
him, without acknowledging the execution thereof, before an
officer authorized to take the acknowledgment of a deed, must so
acknowledge it at the request of his assignee or of a subsequent
assignee thereof or of the judgment debtor, upon presentation of
the assignment end payment of the officer’s fees.

[Code § 1262. New matter is from Code § 1272. See Board’s proposed
Debtor and Creditor Law § 1-j, identical.]

§ 549. Notice filed by certain parties has effect of assign-
ment. A resident of the state, or a person having an office
within the state for the regular transaction of business in person,
who becomes the owner of a judgment, wholly or partly for a sum
of money or directing the payment of a sum of money, by virtue
of a general assignment for the benefit of creditors, or of an
Crvin Pracricr Act 307

appointment as a receiver, or trustee or assignee of an insolvent
debtor or bankrupt, may file with the clerk in whose office the
judgment-roll is filed a notice of the assignment or of his appoint-
ment, and of his ownership of the judgment. The notice must
be subscribed by him, adding to his signature his place of resi-
dence, and also, if he resides without the state, his office address.
A notice so filed has the same force and effect for the purposes of
this article as if it was an assignment of the judgment.

[Code § 1263. New matter is from Code § 1272. See Board’s proposed
Debtor and Creditor Law, § 1-i, identical.]

§ 550. Return of execution unsatisfied. Where an exe
cution zssued on a judgment wholly or partly for a sum of money
or directing the payment of a sum of money is returned wholly
unsatisfied, the clerk must immediately make, in the docket of the
judgment upon which it was issued, an entry of the fact, stating
the time when the execution was returned.

[Code § 1265. New matter is from Code § 1272. See Board’s proposed
Judiciary Law, § 289, identical.]

§ 551. Return of satisfied execution and filing of same.
A sheriff, upon being paid the full amount due upon an execution
in his hands, issued upon a judgment wholly or partly for a sum
of money or dtrecting the payment of a sum of money, must
immediately indorse thereupon a return of satisfaction thereof.
He must also deliver to the person making the payment, upon the
latter’s request, and payment of the fees allowed by law therefor,
a certified copy of the execution and of the return of satisfaction
thereupon; which may be filed with the clerk of the same county,
who must thereupon cancel and discharge the docket of the judg-
ment as if the judgment-roll was filed in his office and the execu-
tion was returned to him as satisfied. But this section does not
exonerate the sheriff from his duty to return the execution to the
clerk with whom the judgment-roll is filed.

[Code § 1266. New matter is from Code § 1272. See Board’s proposed
County Law, §§ 190-g and 179-i.]

§ 552. Cancellation of docket on clerk’s certificate. The
clerk of a county with whom a judgment wholly or partly for
a sum of money or directing the payment of a sum of money has
been docketed, must cancel and discharge the docket thereof, upon
308 Reporr or Jorvrv Lecisiarive ComMitrrre

the filmg with him of a certificate of the clerk with whom the
judgment-roll is filed, showing that the judgment has been
reversed, vacated, or satisfied of record; or the certificate of the
clerk of the county with whom a copy of an execution and of a
return of satisfaction thereupon have been filed, as prescribed in
the last section, showing that they have been so filed and the
docket cancelled and discharged accordingly.

[Code § 1267. New matter is from Code § 1272. See Board’s proposed
County Law, § 179-j, identical.]

§ 553. Power of courts respecting docket. <A court of
record has the same power and jurisdiction concerning the docket
of its judgment, rendered wholly or partly for a sum of money or
directing the payment of a sum of money, kept by a county clerk,
which it has concerning the docket kept by its own clerk. It may
direct that such a docket be amended; or that its judgment, there
docketed, be docketed nune pro tune.

[Code § 1269. New matter is from Code § 1272. See Board’s proposed
Judiciary Law, § 31-1, identical.]

§ 554. Entry of assignment of judgment. Upon the presen-
tation to the clerk of a court of record, of an assignment of a
judgment, wholly or partly for a swum of money or directing the
payment of a swm of money, entered in his office, executed by a
person entitled to satisfy the judgment, as prescribed in section
[1260] five hundred and fourteen of this act, and otherwise
executed as prescribed in that section, with respect to a satis-
faction-piece, and upon payment of the fees allowed by law for
filing a transcript and docketing a judgment thereupon, the clerk
must forthwith file the assignment in his office and make upon
the docket of the judgment an entry of the fact and of the day
of filing; or, if he keeps a separate book for the entry of assign-
ments, an entry referring to the page of the book where the filing
of the assignment is noted.

[Code § 1270. See Board’s proposed Judiciary Law, § 287, identical.]

JUDGMENT BY CONFESSION

§ 555. Judgment by confession without action. A judg-
ment by confession may be entered, without action, either for
money due or to become due, or to secure a person against con-
Orvin Practice Act 309

tingent liability in behalf of the defendant, or both, as prescribed
in this article.

[Code § 1273. See Board’s rule 325, first paragraph, identical.]

§ 556. Statement by defendant. A written statement must
be made and signed by the defendant to the following effect:

1. It must state the sum for which judgment may be entered
and authorize the entry of judgment therefor.

2. If the judgment to be confessed is for money due or to
become due, it must state concisely the facts out of which the debt
arose; and must show that the sum confessed therefor is justly
due or to become due.

3. If the judgment to be confessed is for the purpose of securing
the plaintiff against a contingent liability, it must state concisely
the facts constituting the liability; and must show that the sum
confessed therefor does not exceed the amount of the liability.

The statement must be verified by the oath of the defendant
to the effect that the matters of fact therein set forth are true.

[Code § 1274. See Board’s rule 325, identical.]

§ 557. Confession by joint debtors. One or more joint
debtors may confess a judgment for a joint debt due or to become
due. Where all the joint debtors do not unite in the confession, the
judgment must be entered and enforced against those only who
confessed it; and it is not a bar to an action against all the joint
debtors upon the same demand.

[Code § 1278. See Board’s rule 326, identical.]

§ 558. Entry of judgment on filing statement. At any time
within three years after the statement is verified, it may be
filed with the county clerk of the county of which the defendant
was a resident at the time of making such statement[, or, where
the sum, for which judgment is confessed, does not exceed two
thousand dollars, exclusive of interest from the time of making
the statement, with the clerk of the city court of the city of New
York, provided, however, that the defendant at time of making
such statement was a resident of the city of New York]. There-
upon the clerk must enter, in like manner as a judgment is entered
in an action, a judgment for the sum confessed, with costs, which
he must tax, to the amount of fifteen dollars, besides disbursements
310 Report or Jor Leqisnative ComMirrer

taxable in an action. [If the statement is filed with a county
clerk, t]] The judgment must be entered in the supreme court[[; if
it is filed with the clerk of another court, specified in this section,
the judgment must be entered in the court of which he is clerk.
But a}. A judgment shall not be entered upon such a statement
after the defendant’s death.

, [Code § 1275. The omitted portions are covered by New York City Court
Act. See Board’s rule 327 which is practically identical.]

§ 559. Judgment-roll; docketing and enforcing the judg-
ment. The clerk, immediately after entering the judgment,
must attach toasther and file the statement, as verilied, and a copy
of the judgment; which constitute the qudeneab -roll. The judg-
‘ment may be docketed, and enforced against property, in the
same manner and with the same effect as a Judgment in an action
rendered in the [same] supreme court; and each provision of law
relating to a judgment in an action and ‘the proceedings subsequent
thereto apply to a judgment thus taken.

[Code § 1276. See Board’s rule 319, dubdivivion 2, which provides in the
general rule on “ Judgment-roll” that “Statement and Judgment in con-
fession ” shall be a part of the judgment-roll. See also Board’s rule 328

which covers the last sentence of § 1276 and is identical. Reference to
“Supreme Court ” inserted to conform to changes made in preceding section.]

§ 560. Execution where the judgment is not all due. Where
the debt for which the judgment is rendered is not all due,
execution may be issued, upon the judgment, for the collection of
the sum which has become due. The execution must be in the
form prescribed by law for an execution upon a judgment for the
full amount recovered; but the person whose name is subscribed
to it must indorse thereupon a direction to the sheriff to collect
only the sum due, stating the amount thereof, with interest thereon,
and the costs of the judgment. Notwithstanding the issuing and
collection of such an execution, the judgment shall remain as
security for the sum or sums to become due after the execution is:
issued. When a a further sum becomes due, an execution [may], in
like manner, may be issued for the edllection thereof; and suc-
cessive executions may be issued as further sums Geconis due.

, [Code § 1277. See Board’s proposed Civil Rights Law, § 110, identical

with the first and last sentences of § 1277, The second and third sentences
were omitted by the Board. See note 468.]
Crviz Practice Act 311

JUDGMENT ON SUBMITTED FACTS

§ 561. Submission of controversy upon agreed facts. The
parties to a question in difference which might be the subject
of an action, being of full age, may agree upon a case containing
a statement of the facts upon which the controversy depends; and
may present a written submission thereof to a court of record
which would have jurisdiction of an action brought for the same
cause. The cause must be accompanied with the affidavit of one
of the parties to the effect that the controversy is real; and that
the submission is made in good faith for the purpose of determin-
ing the rights of the parties. The submission must be acknowl-
edged or proved, and certified, in like manner as a deed to be
recorded in the county where it is filed.

[Code § 1279. See Board’s rule 67. which is identical.]

§ 562. Filing papers on submission of controversy. The
case, submission and affidavit must be filed in the office of the
clerk of the court to which the submission is made. If the sub-
mission is made to the supreme court, they must be filed in
the office of the county clerk, if any, specified in the submission ;
if no county clerk is so specified, they may be filed in the office of
any county clerk. The filing is a presentation of the submission ;
and thenceforth the controversy becomes an action and each pro-
vision of law relating to a proceeding in an action applies to the
subsequent proceedings therein except as otherwise prescribed in
the next section.

[Code § 1280. See Board’s rule 69, identical.]

§ 563. Proceedings subsequent to submission. An order of
arrest, a temporary injunction, or a warrant of attachment, can-
not be granted in such an action. The costs thereof are always
in the discretion of the court, but costs cannot be taxed for any
proceedings before notice of trial. The action must be tried
by the court upon the case alone, and the case, submission, affi-
davit, and a certified copy of the judgment and of any order or
paper necessarily affecting the judgment, constitute the judgment-
roll. If the action is in the supreme court, it must be tried and
judgment rendered by the appellate division [thereof, and if in
the city court of the city of New York, it must be tried and judg-
ment rendered at the general term thereof]. If the statement of
312 Revort or Jomnr Learstattve Commrrrer

facts contained in the case is not sufficient to enable the court to
render judgment, an order must be made dismissing the submis-
sion, without costs to either party, unless the court permits the
parties or, in a proper case their representatives, to file an addi-
tional statement, which [it may do], in its discretion, if may
do without prejudice to the original statement.

[Code § 1281. The omitted matter is covered by New York City Court
Act. The Board classified this section as follows: Civil Rights Law, § 37 as
to order of arrest; § 63 as to warrant of attachment; § 184 as to injunction;

Costs, Fees, Disbursements and Interest Law, § 166 as to Costs; rule 319 as
to judgment-roll; rule 68, remainder of section.]

ARTICLE 37
MOTIONS FOR NEW TRIAL

Section 564. Motion for new trial upon judge’s minutes.

565. Motion in appellate division for new trial where
trial was by jury.

566. Motion in appellate division for new trial where
interlocutory judgment is directed.

567. Motion for new trial to be made at special term.

‘568. Review where specific questions are tried by jury.

569. Motion for new trial after judgment; restitution.

570. When exception not to prejudice motion for new
trial.

571. Motion for new hearing after trial of specific ques-
tions by a referee.

§ 564. Motion for new trial upon judge’s minutes. The
judge, presiding at a trial by a jury, [may,] in his discretion,
may entertain a motion, made upon his minutes, at the same term,
to set aside the verdict or a direction dismissing the complaint
and grant a new trial upon exceptions; or because the verdict
is for excessive or insufficient damages, or otherwise contrary to
the evidence, or contrary to law. [If an appeal is taken from
the order, made upon the motion, it must be heard upon a ease
prepared and settled in the usual manner.]

[Code § 999, first sentence, without change. Last sentence in brackets
included under “Appeals.” See Board rule 373.]
Civin Pracrick Acr 313

§ 565. Motion in appellate division for new trial where
trial was by jury. Upon the application of a party who has
taken one or more exceptions, the judge, presiding at a trial by
jury, [may,] in his discretion, at any time during the same term,
may direct an order to be entered that the exceptions so taken be
heard in the first instance by the appellate division of the supreme
court; and that judgment be suspended in the mean time.

[Code § 1000, first sentence, without change. See Board rule 375.]

§ 566. Motion in appellate division for new trial where
interlocutory judgment is directed. Where the decision
or report rendered upon the trial of an issue of fact by the
court, without a jury, or by a referee, directs an interlocutory
judgment to be entered; and further proceedings must be taken,
before the court or a judge thereof or a referee, before a final
judgment can be entered, a motion for a new trial upon one or
more exceptions may be made at a term of the appellate division
of the supreme court after the entry of the interlocutory judg-
ment and before the commencement of the hearing directed
therein. [The time within which the party must except, for
that purpose, to a ruling of law, made, upon such a trial, by the
judge or the referee, after the close of the testimony, is ten days
after service of a copy of the decision or report, and notice of
the entry of the interlocutory judgment thereupon.]

[Code § 1001, first sentence. The last sentence is included under “Trial.”)

§ 567. Motion for new trial to be made at special term. In
a case not specified in the last three sections, a motion for a new
trial must[[, in the first instance,] be heard and decided, in the
first instance, at the special term. But where it is founded upon
an allegation of error, in a finding of fact, or ruling upon the law,
made by the judge upon the trial, it cannot be made unless notice
therefor be given before the expiration of the time within which an
appeal can be taken from the judgment, and it cannot be heard at
a special term held by another judge; unless the judge who pre-
sided at the trial is dead, or his term of office has expired, or
he is disqualified for any reason, or he specially directs the motion
to be heard before another judge. [And a] A trial by a referee
cannot be reviewed by a motion for a new trial founded upon
such an allegation except in a case specified in the last section.

[Code, § 1002, without change of substance.]

é
» F
31+ Revorr or Joiny Learstarive ComMrrrrer

§ 568. Review where specific questions are tried by jury.
[The p] Provisions [of this article] relating to the proceedings
to review a trial by a jury, by a motion for a new trial, are
applicable to the trial by a jury of one or more specific ques-
tions of fact arising upon the issues in an action triable by the
court. But, except in a case specified in section 970 of this
act,]J} a new trial may be granted as to some of the questions
so tried and refused as to the others, except in a case where a
party is entitled by the constitution or express provision of law to
a trial by jury of one or more issues of fact upon applying to the
court for an order directing all the questions upon those issues to
be plainly and distinctly stated for trial[[; and an error in the
admission or exclusion of evidence, or in any other ruling or
direction of the judge, wpon the trial, may, in the discretion of the
court which reviews it, be disregarded, if that court is of opinion,
that substantial justice does not require that a new trial should
be granted. Where the judge who presided at the trial, neither
entertains a motion for a new trial, nor directs exceptions, taken
at the trial, to be heard at a term of the appellate division of the
supreme court, a motion for a new trial can be made only at the
term, where the motion for final judgment is made, or the remain-
ing issues of fact are tricd, as the case requires].

[Code § 1003, first sentence and first clause of second sentence, without
change of substance, omitting the reference to § 970. The second clause of
the second sentence is omitted; covered by general clause providing that
upon motion for a new trial upon appeal an error in a ruling of a trial
court must be disregarded, if a substantial right of any party shall not
thereby be affected. Last sentence included in separate rule, ante.]

§ 569. Motion for new trial after judgment; restitu-
tion. [The entry of final judgment, and the subsequent pro-
ceedings to collect or otherwise enforce it, are not stayed by an
exception, the preparation or settlement of a case, or a motion
for a new trial, unless an order for such a stay is procured and
served; and the] Zhe entry, collection, or other enforcement of
a judgment, does not prejudice'a subsequent motion for a new
trial. Where a new trial is granted, the court may direct and
enforce restitution. as where a judgment is reversed upon appeal.

[Code § 1005, second clause of first sentence, and second sentence. First
clause of first sentence is under “Judgments.” Included by Board in rule
376.]
Crvin Practrick Acr 315

§ 570. When exception not to prejudice motion for new
trial. The taking of an exception upon a trial by a jury,
or the statement thereof in a case, [as prescribed in this article,]
does not prejudice a motion for a new trial, on the ground that
the verdict was contrary to evidence; but such a motion may be
made before or after the hearing of the exception; or, in the
discretion of the court before which the exception is heard, at
the time of the hearing.

[Code § 1006, without change of substance.]

§ 571. Motion for new hearing, after trial of specific
questions by a referee. Jn an action triable by the court, where
a reference has been made to report upon one or more specific
questions of fact involved in the issue, a motion for a new hear-
ing may be made at a special term at any time before the hear-
ing of a motion for final judgment or the trial of the remaining
issues of fact. The motion must be made upon affidavits, unless
the court or a judge thereof directs a case to be prepared and
settled.

[Code § 1004, without change.]

ARTICLE 38
APPEALS; GENERAL PROVISIONS

Section 572. Right to appeal generally.

573. Appeal by party prosecuting or defending as a poor
person.

574. Entry of order of judge out of court pre-requisite to
appeal.

575. When no appeal lies from judgment of reversal.

576. Parties to appeal; how designated; title of cause.

577. Notice of appeal.

578. Service of notice of appeal, if attorney or party not
found.

579. Deposit in liea of undertaking.

580. Undertakings may be in one instrument; form and
service thereof.

581. Approval of undertaking unnecessary ; exception to
sureties.
» r
316 Revorr or Jour Lugisuarive Commrrres

Section 582. Filing undertaking on appeal.

583. Limiting or dispensing with security on appeal.

584. Waiver of security.

585. No security necessary on appeal by people, or certain
public officers,

586. Security unnecessary on appeal by municipal cor-
poration unless ordered.

587. Undertaking and stay after party’s death.

588. Stay of proceedings on appeal.

589. Effect of stay on appeal from judgment for rent.

590. Case, when necessary.

591. Case, contents of.

592. Papers to be transmitted to appellate court.

593. Proceedings when party dies pending appeal.

594. Order of substitution.

595. Review on interlocutory judgment, or intermediate
order.

596. Review of order of judge of another court.

597. Review of remarks or comments of trial judge.

598. Review of ruling to which exception has been taken.

599. Judgment or order on appeal.

600. Appeal from judgment of non-suit or general
verdict.

601. Rights of parties after appeal from judgment in
favor of owner in certain real property actions.

602. Restitution.

§ 572. Right to appeal generally. A right to appeal shall
exist as follows:

1. A party aggrieved may appeal in a case provided by law.
He may not appeal from a judgment or order rendered or made
upon his default unless an appeal therefrom be expressly author-
ized by law;

2. A person aggrieved who is not a party but is entitled by
law to be substituted in place of a party, or who has acquired
since the making of the order or the rendering of the judgment
appealed from an interest which would have entitled him to be
so substituted if it had been previously acquired, may also appeal ;
but the appeal cannot be heard until he has been substituted in
place of the party, and if he unreasonably neglects to procure an
order of substitution, the appeal may be dismissed upon motion
of the respondent ;
Civin Practice Act 317

3. Where the adverse party has died since the making of the
order or the rendering of the judgment appealed from or where
the judgment appealed from was rendered after his death, in
a case prescribed by law, an appeal may be taken as if he were
living, but it cannot be heard until the heir, devisee, executor or
administrator, as the case requires, has been substituted.

[Code § 1294, § 1296, and first sentence of § 1297, rewritten without change
of substance. The words in the first subd. “unless an appeal therefrom be
expressly authorized by law” refer to statutes which give the absolute right

of appeal from default judgments of certain inferior courts. Board rule
352, in substance. ]

§ 573. Appeal by party prosecuting or defending as a poor
person. An order allowing a person to sue or defend as a poor
person[[, made as prescribed in this article, does not authorize
the petitioner to take or maintain an appeal as a poor person;
but where an appeal is taken by the adverse party, the order is
applicable in favor of the petitioner as respondent in the appeal.

[Code § 466, without change of substance. Included by Board in rule
354.]

§ 574. Entry of order of judge out of court pre-requi-
site to appeal. An appeal cannot be taken from an order
made by a judge, out of court, until it is entered in the office of
the proper clerk, but the entry thereof and the filing of the papers
on which it was granted may be compelled by order of a judge
of the court in or to which an appeal therefrom may be taken.
[Where such an order has not been so entered, or the papers, upon
which it was founded, have not been filed in the same clerk’s
office, the judge who made it, or, if he is absent, or unable or
disqualified to act, a judge of the court, in or to which an appeal
therefrom may be taken, must, upon the application of a party
or other person, entitled to take such an appeal, make an order,
requiring the omission to be supplied, within a specified time
after service of a copy of the order made by him. Upon proof,
by affidavit, that a copy of the latter order has been served, and
that the omission has not been supplied, the same judge may
make, upon notice, an order revoking and annulling the original
order. The provisions of the last section but one apply to the
service of an order, or a notice, as prescribed in this section. ]

[Code § 1804, rewritten. See Board rule 352, subd. 4.]
>
318 Revorr or Jorny Luecistarive Comrrrre

§ 575. When no appeal lies from judgment of reversal.
Where a judgment from which an appeal is taken is reversed
upon the appeal, and a new trial is granted, an appeal cannot be
taken from the judgment of reversal; but upon an appeal from
the order granting a new trial, taken as prescribed by law, the
judgment of reversal must also be reviewed.

[Code § 1318 without change. See Board rule 358.]

§ 576. Parties to appeal; how designated; title of cause.
The party or person appealing is designated as the appellant and
the adverse party as the respondent. After an appeal is taken to
another court, the name of the appellate court must be substituted
for that of the court below, in the title of the action or special
proceeding. and in any case, the name of the county, if it-is men-
tioned, may be omitted; otherwise the title shall not be changed in
consequence of the appeal.

[Code § 1295, without change. Board rule 334.]

§ 577. Notice of appeal. An appeal must be taken by serving
upon the attorney for the adverse party[[, as prescribed in
article third of title sixth of chapter eighth of this act], and
upon the clerk with whom the judgment or order appealed from
is entered, by filing it in his office, a written notice to the effect
that the appellant appeals from the judgment or order or from
-a specified part thereof. Upon an appeal to the court of appeals
from an order of the appellate division, made upon an appeal
from the surrogate’s court, the notice of appeal shall be filed
with the clerk of the surrogate’s court. Where the appeal is
from a final judgment, or from a final order in a special pro-
ceeding, and the appellant intends to bring up for review there
upon an interlocutory judgment, or an i nbermediate order, he
must[, in the notice of appeal,] distinctly specify in the notice of
appeal the interlocutory judgment or intermediate order to be
reviewed.

[Code §§ 13800, 1301, without change of substance. Included by Board
in rule 336.]

§ 578. Service of notice of appeal, if attorney or party
not found. If the attorney for the adverse party is dead; or
if he has been removed and notice of the removal has been served
Crviz Practice Act 319

upon the appellant’s attorney, and another attorney has not been
substituted in his place; or if for any reason service of a notice of
appeal upon the proper attorney for the adverse party cannot[,
with due diligence,] be made within the state with due diligence,
the notice of appeal may be served upon the respondent in the
manner prescribed by law for serving it upon an attorney. If
personal service upon the respondent cannot[, with due diligence, ]
be so made within the state with due diligence, the notice of
appeal may be served upon him, and notice of the subsequent pro-
ceedings may be given to him, as directed by a judge of the court
in or to which the appeal is taken.

[Code § 1302, without change. Included by Board in rule 337.]

§ 579. Deposit in lieu of undertaking. Where the appellant
is required[, by this chapter,] to give an undertaking, he may,
in lieu thereof, deposit with the clerk with whom the judgment or
order appealed from is entered a sum of money equal to the
amount for which the undertaking is required to be given. The
deposit has the same effect as filing the undertaking, and notice
that it has been made has the same effect as notice of the filing
and service of a copy of the undertaking. The court wherein the
appeal is pending may direct the mode in which the money shall
be kept and disposed of, during the pendency or after the deter-
mination of the appeal.

(Code § 1306, without change of substance. Included by Board in rule
342.)

§ 580. Undertakings may be in one instrument; form
and service thereof. Where two or more undertakings
are required or authorized to be given on appeal [as prescribed
in this title], they may be contained in the same instrument or in
different instruments, at the option of the appellant. Each under-
taking so given [as prescribed in this title] must be executed by
at least two sureties and must specify the residence of each
surety therein. A copy thereof, with a notice showing where
it is filed, must be served on the attorney for the adverse party
with the notice of appeal or before the expiration of the time of
appeal.

4 [Code § 1334. Included by Board in rule 340. The section now applicable

to court of appeals only has been extended to cover all appeals where two or
more undertakings are required “or authorized” to he given on appeal.]
3820 Report or Jorwwt LzqtstarivE ComMirrEer

§ 581. Approval of undertaking unnecessary; exception
to sureties. An undertaking given to perfect an appeal or to
stay the execution of the judgment or order appealed from need
not be approved; but exceptions to sureties may be made and
disposed of as provided by law.

[Code § 1335, first clause applicable to court of appeals only extended to
all appeals, The remainder of the section is under “ Security.”]

§ 582. Filing undertaking on appeal. An undertaking
on appeal, given as prescribed in this chapter,] must be filed
with the clerk with whom the judgment or order appealed from
is entered, except that upon an appeal to the court of appeals
the undertaking must be filed with the clerk of the court wherein
the original judgment or order was entered.

[Code § 1807, without change of substance. Included by Board in rule
341.]

§ 583. Limiting or dispensing with security on appeal.
[Where an appeal is taken, as prescribed in title second or
fourth of this chapter, the court, in or from which the appeal
is taken; or, where an appeal is taken as prescribed in title third
or fifth of this chapter, the court, to which the appeal is taken;
may, in its discretion, make a] An order may be made by the
supreme court or a justice thereof, in the discretion of the court
or justice, upon notice to the respondent, dispensing with or
limiting the security required to stay the execution of the judg-
ment or order appealed from, as follows:

1. Where the appellant is an executor, administrator, trustee,
or other person acting in another’s right, the security may be
dispensed with or limited, in the discretion of the court.

2. The aggregate sum in which one or more undertakings are
required to be given may be limited to not less than fifty thousand
dollars, where it would otherwise exceed that sum.

[Code § 1312, without change of substance except that the appellate division
is not authorized to make the order and a justice of the supreme court is.
Included by Board in rule 344.]

§ 584. Waiver of security. An undertaking which the
appellant is required[, by this chapter,] to give, or any other
act which he is [so] required to do for the security of the
Crvit Practiczn Acr 821

respondent, may be waived by the written consent of .the
respondent. .

[Code § 1305, without change of substance. Included by Board in rule
343.]

§ 585. No security necessary on appeal by people, or
certain public officers. Upon an appeal taken by the people of
the state or by a state officer or board of state officers, or a board
of supervisors of a county, the service of the notice of appeal
perfects the appeal and stays the execution of the judgment or
order appealed from, without an undertaking or other security.

[Code § 1313, without change. Included by Board in rule 346.]

§ 586. Security unnecessary on appeal by municipal
corporation unless ordered. Upon an appeal taken by a
domestic municipal corporation, or by a public officer in behalf
of such a corporation, the service of the notice of appeal perfects
the appeal and stays the execution of the judgment or order
appealed from, without an undertaking or other security[;
except that, where an appeal is taken, as prescribed in title second,
third or fourth of this chapter}, wnless the court[[, in or from
which the appeal is taken, may, in its discretion,] requires secu-
rity to be given. Such security may be required by order of the
court in or from which the appeal is taken, except that if the
appeal be from an order in a special proceeding made by a judge of
a court of record, such security may be required by order of the
supreme court. [In that case, t] The form, nature and extent of
the security, not exceeding that which is required in a like case
from a natural person, and the time and manner in which it must
be given, must be prescribed by the order of the court; and the
mayor, comptroller or counsel to the corporation, may execute, in
behalf of the corporation, an undertaking so required to be given.

[Code § 1314, amended to provide that security may be required by order,

if the appeal be from order in a special proceeding. Included by Board in
rule 346. The new matter in first sentence adopts the language of § 1990.]

§ 587. Undertaking and stay after party’s death. In
a case where the adverse party has died since the making of the
order or the rendering of the judgment appealed from or when
the judgment appealed from was rendered after his death, the
undertaking required to perfect the appeal or to stay the execu- °

11
322 Report or Jornr Leaistarive CoMMITTEE

tion of the judgment or order appealed from must recite the
fact of the adverse party’s death, and the undertaking enures
after substitution to the benefit of the person substituted.

[Code § 1297, last sentence, without change of substance. Board rule
345.]

§ 588. Stay of proceedings on appeal. Where an ap-
peal to the appellate term of any court or to the appellate
division of the supreme court or to the court of appeals or other-
wise shall have been [has been heretofore or shall hereafter be]
perfected, [as prescribed in this chapter,] and the other acts,
if any, required to be done to stay the execution of the judgment
or order appealed from have been done, the appeal stays all pro-
ceedings to enforce the judgment or order appealed from; except
that the court or judge from whose determination the appeal is
taken may proceed in any matter included in the action or special
proceeding and not affected by the judgment or order appealed
from or not embraced within the appeal; or may cause perish-
able property to be sold pursuant to the judgment or order
appealed from. The proceeds of such a sale must be paid, to
abide the result of the appeal, into the court from or in which
the appeal is taken, or, if it was taken to the appellate Civision
of the supreme court from the determination in a special proceed-
ing [as prescribed in title fifth of this chapter], into the supreme
court.

[Code § 1310, first two sentences, without change of substance. Included
by Board in rule 350.]

§ 589. Effect of stay on appeal from judgment for rent.
When an appeal from a judgment for rent has been per-
fected and execution stayed [[as herein provided], the appeal
stays all summary proceedings, pending or otherwise, to recover
the possession of real property or dispossess tenants therefrom,
based on the failure to pay the rent included in the judgment
appealed from.

[Code § 1310, third sentence, without change of substance. Included by
Board in rule 350, subd, 2.)

§ 590. Case, when necessary. When a party intends to
appeal from a judgment rendered after the trial of an issue
’ of fact, or from an order granting or denying a motion for a new

 
Civit Practice Act 328

trial upon the minutes, [or to move for a new trial of such an
issue,] he must, except as otherwise prescribed by law, make a
case and procure the same to be settled and signed by the judge,
justice or the referee, by or before whom the action was tried,
as prescribed by rules [in the general rules of practice];
or, in a case of the death or disability of the judge, justice or
referee, in such manner as the court directs. It is not necessary
to make a case where a party intends to appeal from a judgment
entered upon a referee’s report, or a decision ‘of the court upon
a trial without a jury, and to rely only upon exceptions[L, taken
as prescribed in section 994 of this act] to rulings upon questions
of law made after the cause is finally submitted.

[Code § 997, first sentence, § 998, last clause, § 999, last sentence, without
change of substance. ]

§ 591. Case, contents of. [The] A case upon an appeal
from a judgment rendered after the trial of an issue of fact or
from an order granting or denying a motion for a new trial upon
the minutes must contain so much of the evidence and other
proceedings upon the trial as is material to the questions to be
raised thereby, and also the exceptions taken by the party making
the case; and in a case where a special question is submitted to
the jury, or the jury have assessed damages, such exceptions
taken by any party to the action as shall be necessary to deter-
mine whether there should be a new trial in case the judgment
should be reversed. If it afterwards becomes necessary to sepa-
rate the exceptions, the separation may be made, and the excep-
tions may be stated, with so much of the evidence and other pro-
ceedings as is material to the questions raised by them, in a
case, prepared and settled, as directed by rules [in the general
rules of practice]; or in the absence of directions therein, by
the court, upon motion. It is not necessary to state in a case
that a finding upon the facts or a ruling upon the law was made,
where the finding or ruling appears in a referee’s report or in the
decision of the court upon a trial by the court, without a jury.

[Code § 997, all except first sentence, without change of substance.]

§ 592. Papers to be transmitted to appellate court.
Where an appeal is taken to the court of appeals or to the supreme
court from an inferior court, from a final judgment[[, as pre
scribed in title second or third of this chapter], the appellant
324 Report or Joinr Lucrsuative ComMItTTEE

[must], within twenty days after it is perfected, must cause a
copy of the judgment-roll, and of a case or notice of exceptions, if
any, filed after the entry of judgment, and a certified copy of the
judgment given thereon and of the notice of appeal, and also a
copy of an order, if any, denying a motion for a new trial, which
the appellate court would have jurisdiction to review upon such
appeal, to be transmitted to the appellate court by the clerk
upon whom the notice of appeal was served. Where an appeal
from an order or [a] part of an order, except an order in an action
m the supreme court, is taken [as prescribed in title second,
third, and fifth of this chapter], the appellant [must], within the
same time, must cause a certified copy of the notice of appeal, of
the order, and of the papers upon which the order was founded,
to be transmitted to the appellate court by the same clerk. If
the appellant fails so to do, the respondent may cause those
‘papers to be so transmitted; and he is entitled to tax the expense
thereof, as a disbursement, where he recovers costs. The clerk
of the appellate court must file the papers so transmitted; and,
except where it is otherwise specially prescribed by law, the
appeal must be heard upon them.

[Code § 1315, broadened to cover review of order denying a motion for a
new trial.]

§ 593. Proceedings when party dies pending appeal.
Where either party to an appeal dies before the appeal is heard,
[or has heretofore died,] and the appeal has not been heard, if
an order substituting another person in his place is not made
within three months after his death, [or, where he has hereto-
fore died, within three months after this section takes etfect.]
‘the court[[, in which the appeal is pending, may], in its dis-
cretion, may make an order requiring all persons interested in
the decedent’s. estate to show cause before it why the judg-
ment or order appealed from should not be reversed or affirmed,
or the appeal dismissed, as the case requires. The order must
specify a day when cause is to be shown, which must be not
less than six months after making the order; and it must desig-
nate the mode of giving notice to the persons interested. Upon
the return day of the order, or at a subsequent day appointed
by the court, if the proper person has not been substituted, the
court, upon proof by affidavit that notice has been given as
required by the order, may reverse or affirm the judgment or
Civizn Praoricr: Act 325

order appealed from or dismiss the appeal or make such further
order in the premises as the case requires.

[Code § 1298, without change of substance.]

§ 594. Order of substitution. Where the appeal is from
one court to another, an application for an order of substitu-
tion of a party, as prescribed by the last three sections,]
must be made to the appellate court. Where personal service
of notice of application for an order has been made, within the
state, upon the proper representative of [the] a decedent, an
order of substitution may be made upon the application of the
surviving party.

[Code § 1299, without change of substance. See Board rules 220, 352 and
377.]

§ 595. Review of interlocutory judgment, or interme-
diate order. An appeal taken from a final judgment or from
a final order wm a special proceeding brings up for review an
interlocutory judgment or an intermediate order, as the case may
be, which is specified in the notice of appeal and necessarily
affects the final judgment or order; and which has not already
been reviewed, upon a separate appeal therefrom, by the court
or the division or term of the court to which the appeal from the
final judgment or order is taken. An appeal from a final judg-
ment also brings up for review an order denying a motion for
a new trial, although not specified in the notice of appeal, which
has not already been reviewed, upon a separate appeal therefrom,
by the court or the division or term of the court to which the
appeal from the final judgment is taken. The right to review an
interlocutory judgment or an intermediate or other order, as
prescribed in this section, is not affected by the expiration of the
time within which a separate appeal therefrom might have been
taken.

[Code §§ 1316, 1358. The words, “division or”, added, refer to “ appellate
division.” Included by Board in rule 370 and Judiciary Law, § 67. The
second sentence is new and is intended to carry out the object of Board rule
49, as indicated in Board note 46.]

§ 596. Review of order of judge of another court. An
order made by a judge of a court, other than the court in which
the action is pending, may be reviewed in the same manner as if it
was made by a judge of the court in which the action is pending.

[Code § 774, without change. Included by Board in rule 353.]
326 Report or Joinr LecistattveE ComMirrEr

§ 597. Review of remarks or comments of trial judge.
In case of an appeal, every remark or comment vf the presiding
judge during the trial, duly excepted to and appearing in the case
and exceptions settled as provided by law, shall be the subject of
review, but the case and exceptions on appeal shall be settled
by the trial justice as now provided by law].

[Code § 1323-a, rewritten, without change of substance. Included by Board
in rule 329.]

§ 598. Review of ruling to which exception has been
taken. A ruling to which an exception is taken[[, as prescribed
in the last four sections, can be reviewed only upon an appeal
from the judgment rendered after the trial, except in a case
where it is expressly prescribed by law that a motion for a new
trial may be made thereupon.

[Code § 996, without change of substance.]

§ 599. Judgment or order on appeal. Upon an appeal
from a judgment or an order, the appellate division of the
supreme court, or appellate term, to which the appeal is taken,
may reverse or affirm, wholly or partly, or may modify, the judg-
ment or order appealed from, and each interlocutory judgment
or intermediate or other order which it is authorized to review,
[as specified in the notice of appeal,] and as to any or all of
the parties. It shall thereupon render judgment of afirmance,
judgment of reversal and final judgment upon the right of any
or all of the parties, or judgment of modification thereon, accord-
ing to law, except where it may be necessary or proper to grant
a new trial or hearing, when it may grant a new trial or hearing.
When a trial has been before a jury, the judgment of the appel-
late court must be rendered either upon special findings of the
jury or the general verdict or upon a motion to dismiss the com-
plaint or to direct a verdict. A judgment affirming wholly or
partly a judgment from which an appeal has been taken shall not
award, expressly and in terms, [award] to the respondent, a sum
of money or other relief which was awarded to him by the judg-
ment so affirmed. [After hearing the appeal, the court must give
judgment, without regard to technical errors or defects or to
exceptions which do not affect the substantial rights of the
parties. ]

[Code § 13817, except the last sentence omitted, which is included in
general section on subject of errors on appeals. The words “or other ”

||
Civi, Practioz Act 327

included in first sentence and the omission of the words in brackets cover the
review of an order denying a motion for a new trial, which is reviewable on
appeal from a judgment, although not specified in notice of appeal. Section
included by Board in Judiciary Law, §§ 69-c and 130.]

§ 600. Appeal from judgment of non-suit or general
verdict. On an appeal from the judgment entered upon a
[such] nonsuit or general verdict rendered after the jury has
found a special verdict upon questions of fact submitted by the
court or assessed the damages, such special verdict, or general
verdict, shall form a part of the record, and the appellate division
or the court of appeals may direct such judgment thereon as
either party may be entitled to.

[Code § 1187, last sentence without change of substance. Included by
Board in Judiciary Law, §§ 34, 63.]

§ 601. Rights of parties after appeal from judginent
in favor of owner in certain real property actions. When
[the] an appeal is from a judgment in favor of the owner of
real estate in an action to set aside a conveyance thereof, or in
an action to compel the specific performance of a contrdct for the
sale thereof, such owner shall have the same right to sel] or dis-
pose of the same as though no appeal had been taken, unless the
appellant shall file with the clerk of the court a written under-
taking in a sum fixed by the court or a judge thereof, upon a
notice to the respondent of at least ten days, and to be approved
by such court or judge, to the effect that the appellant [will], in
case the judgment appealed from shall he affirmed, will pay to such
owner such damages as he may suffer by reason of such appeal,
not exceeding the amount of the penalty in such undertaking.
Such undertaking may be filed at any time during the appeal, but
any sale of such real estate or contract to sell the same in good
faith and for a valuable consideration, after said judgment and
before the filing of such undertaking, shall be as valid as if such
under‘aking had not been filed. In case such undertaking shall
not be filed, the respondent shall be entifled at any time during
such appeal to an order discharging of record any notice of
pendency of action filed in the action, and, in an action to compel
the specific performance of a contract for the sale of real estate,
also canceling and discharging of record said contract in case
the same has been recorded.

[Code § 1323, last three sentences, without change. Included by Board
in Real Property Law, § 278.]
328 Rerort or Jornr, Leqisuarive ComMItreE

o§ 602.. Restitution. When a final judgment or order is
reversed or modified upon appeal, the appellate court, or the
[general] division or term of the same court to which the appeal
is taken, as the case may be, may make or compel restitution of
property, or of a right, lost by means of the erroneous judgment
or order ; but not so as to affect the title of a purchaser in good
faith and for value. When property has been sold, the court
may compel the value or the purchase price to be restored or
deposited to abide the event of the action, as justice requires.

[Code § 1323, first two sentences, without change of substance. Included
by Board in Judiciary Law, § 310.]

ARTICLE 39
‘APPEALS TO THE COURT OF APPEALS

Section 603. Jurisdiction of the court of appeals in civil actions
., and. proceedings. —
604, Limitations on appeal to court of appeals.

605. Appeal from final judgment rendered after affirm-
ance of interlocutory judgment, or denial of
motion for new trial.

606. Application for leave to appeal; stay pending
application.

607. Limitation of time to appeal.

608. Security to perfect appeal.

609. Security to stay execution on judgment or order
for money.

610. Security to stay execution on judgment or order
for delivery of document or property.

611. Security to stay execution on judgment for a
chattel.

612. Security to stay execution on judgment or order
directing convevance,

613. Security to stay execution on judgment or order

a for the sale or possession of real property.

614, Form of undertaking where appeal from judgment
_ or order of affirmance.

615. The last six sections qualified.

616, Case on appeal where verdict was subject to opinion
j of court.
Crvit Practice Act 329

Section 617. When reversal presumed not to be on a question
of fact.
618. Review of intermediate determination of appellate
division upon appeal from final judgment.
619. Judgment or order of court of appeals.
620. When judgment absolute to be rendered and pro-
ceedings thereupon.
621. Remittitur.

§ 603. Jurisdiction of the court of appeals in civil
actions and proceedings. From and after the thirty-first day
of. May, nineteen hundred and. seventeen, the jurisdiction of the
court of appeals [shall,] in civil accione and proceedings shall
be confined to the review, upon appeal, of an actual determination
made by an appellate division of the supreme court in either of
the following cases, and no others:

1. An appeal may be taken as of right to said court from a
judgment or order entered upon the decision of an appellate
division of the supreme court which finally determines an action
or special proceeding where as directly involved the construction
ot the constitution of the state or of the United States, or where
one or more of the justices of the appellate division dissents
from the decision of the court, or, having sat in the case, refrains
from participating in the decision of the court, or where the
judgment or order is one of reversal or modification.

2. An appeal may also be taken as of right to said court from
an order of the appellate division granting a new trial on excep-
tions where the appellants stipulate that, upon affirmance, judg-
ment absolute shall be rendered against them.

3. An appeal may also be taken from a determination of the
appellate division of the supreme court in any department, other
than from a judgment, or order which finally determines an
action or special proceeding, where the appellate division allows
the same and certifies that one or more questions of law have
arisen which, in its opinion, ought to be reviewed by the court
of appeals, in which case the appeal brings up for review the
question or questions so certified, and no other; and the court
of appeals shall certify to the appellate division its determination
upon such questions.

4. An appeal may also be taken fie a judgment or order
entered upon the decision of an appellate division of the supreme
court which finally determines an action or special proceeding,
330 Reporr or Jomt Leoistative ComMirrre

but which is not appealable as of right under subdivision one
of this section, where the appellate division shall certify that in
its opinion a question of law is involved which ought to be
reviewed by the court of appeals, or where, in case of the refusal
so to certify, an appeal is allowed by the court of appeals. Such
an appeal shall be allowed when required in the interest of sub-
stantial justice.

The provisions of this section shall not apply to an appeal taken
to the court of appeals prior to the first day of June, nineteen
hundred and seventeen, but an appeal so taken shall be heard
and determined under the then existing provisions of law.

Code § 190, as amended by Laws 1917, ch. 290, without change. Included
by Board in Judiciary Law, § 32. Section 1324 omitted as obsolete. The
amendment to subdivision 1 is to clarify its meaning, and conform to the
construction placed upon the language by the court of appeals.]

§ 604. Limitations on appeal to court of appeals. The
jurisdiction conferred by the last section is subject to the follow-
ing limitations, exceptions and conditions:

1. No appeal shall be taken to said court in any civil action
or proceeding commenced in any court other than the supreme
court, court of claims, county court, or a surrogate’s court, unless
the appellate division of the supreme court allows the appeal by
an order made at the term which rendered the determination,
or at the next term after judgment is entered thereupon and shall
certify that in its opinion a question of law is involved which
ought to be reviewed by the court of appeals.

2. The jurisdiction of the court is limited to the review of
questions of law.

3. No unanimous decision of the appellate, division of the
supreme court that there is evidence supporting or tending to
sustain a finding of fact or a verdict not directed by the court
shall be reviewed by the court of appeals, but where the justices
of the appellate division from which an appeal is taken are
divided upon the question as to whether there is evidence support-
ing or tending to support a finding of fact or a verdict not
directed by the court, a question of review is presented.

[Code § 191, without change as amended by Laws 1917, ch. 290. Included
by Board in Judiciary Law, § 33. The italicized matter in subd. 3 is from
§ 1337, second clause.]
Crvit Practice Act 331

§ 605. Appeal from final. judgment rendered after
affirmance of interlocutory judgment, or denial of motion for
new trial. Where final judgment is rendered in the court below,
after the affirmance, upon an appeal to the appellate division of
the supreme court, of an interlocutory judgment, or after the
refusal by the appellate division, of a new trial, either upon an
application, made in the first instance at a term thereof, or
upon an appeal from an order of the special term, or of the
judge before whom the issues, or questions of fact, were tried by
a jury; the party aggrieved may appeal directly from the final
judgment to the court of appeals, notwithstanding that it was
rendered at a special term or at a trial term or pursuant to the
directions contained in a referee’s report. But such an appeal
brings up for review only the determination of the appellate
division of the supreme court affirming the interlocutory judg-
ment or refusing the new trial.

[Code § 1336, without change. Included by Board in Judiciary Law,
§ 37.]

§ 606. Application for leave to appeal; stay pending
application. [In a case, specified in subdivision four of section
one hundred and ninety of this act,J Where a party is required
in order to take an appeal to the court of appeals to apply to
the appellate division for leave to appeal, and in case of refusal,
to the court of appeals, such party, [aggrieved] upon presenting
to the court proof by affidavit that he intends to apply to the
appellate division rendering the [such] decision, for leave to
appeal to the court of appeals, and in case such appellate division
shall refuse such leave, then that such party intends to apply
to the court of appeals to be allowed to appeal to said court of
appeals, and proof that [an] the prescribed undertaking[, given
as prescribed in this chapter,§ has been filed with the clerk with
whom the judgment appealed from is entered, shall be entitled
to an order staying all proceedings to enforce such judgment,
until the granting or final refusal of such leave to appeal [by
such appellate division or the court of appeals]. The party
desiring to make such application must do so at the same term
or at the term of said appellate division next succeeding that
at which judgment of affirmance was rendered and notice of entry
thereof served upon the party aggrieved, and in case said appel-
late division refuses such application, then such party shall have
332 Revorr or Joiner LuaistarivE ComMirrrer

thirty days from and after service of a copy of the order of
said appellate division denying such application, with notice of
entry, in which to apply to the court of appeals to be allowed to
so appealf, and if such application be granted]. Jf the court be
mm recess during all or part of such period, an application may
be made upon notice served within such period to be heard after
the expiration thereof, if noticed for a day not later than ten
days after the court shall have re-convened. If leave to appeal
be granted to such party, he shall have thirty days from the
granting thereof to perfect an appeal to the court of appeals.

[Code § 1310, last two sentences, without change of substance. Italicized
matter is to clarify practice. Included by Board in rule 359.]

§ 607. Limitation of time to appeal. An appeal to the court
of appeals must be taken within sixty days after service upon the
attorney for the appellant of a copy of the judgment or order
appealed from and a written notice of the entry thereof.

(Code § 1325, without change except punctuation. Included by Board in
tule 335, subd. 1.]

_ § 608. Security to perfect appeal. To render a notice of
appeal to the court of appeals effectual for any purpose, except
in a case where it is specially prescribed by law that security is
not necessary to perfect the appeal, the appellant must give a
written undertaking to the effect that he will pay all costs and
damages which. may be awarded against him on the appeal not
exceeding five hundred dollars. The appeal is perfected when
such an undertaking is given and a copy thereof, with notice of
the filing thereof, is served[[, as prescribed in this title].

[Code § 1326, without change of substance. Included by Board in rule
338.] ;

§ 609. Security to stay execution on judgment or
order for money. If the appeal is taken from a judgment for
a sum of money, or from a judgment or order directing the
payment of a sum of money, it does not stay the execution of
the judgment or order until the appellant gives a written under-
taking to the effect that if the judgment or order appealed from
or any part thereof is affirmed, or the appeal is dismissed, he
will pay the sum recovered or directed to be paid by the judg-
ment or order or the part thereof as to which it is affirmed.
Crvit Practice Act 333

But where the judgment or order directs the payment of money
in fixed instalments the undertaking must be to the effect that
the appellant will pay each instalment which becomes payable
pending the appeal, or the part thereof as to which the judgment
or order is affirmed, not exceeding a sum specified in the under.
taking, which must be fixed by a judge of the court below. [The
court below may, at any time afterwards, upon satisfactory proof,
by affidavit, that the sum so fixed is insufficient in amount,
make an order, requiring the appellant to give a further under-
taking, to the same effect, in a sum and within a time, specified
in the order. A failure to comply with such an order has the
same effect, as if no undertaking had been given, as prescribed
in this section.J

[Code § 1327. The last two sentences omitted here are included in a
general provision relating to new or additional security. Included by Board
in rule 347, subd. 1.]

§ 610. Security to stay execution on judgment or order
for delivery of document or property. If the appeal is taken
from a judgment or order directing the assignment or delivery
of a document or of personal property, it does not stay the
execution of the judgment or order until the thing directed to be
assigned or delivered is brought into the court below, or placed
in the custody of an officer or receiver designated by that court,
or the appellant gives a written undertaking as prescribed in the
next section.

[Code § 1328, without change. Included by Board in rule 347, subd. 2.]

§ 611. Security to stay execution on judgment for a
chattel. If the appeal is taken from a judgment for the recovery
of a chattel, it does not stay the execution of the judgment until
the appellant gives a written undertaking in a sum fixed by the
court below or a judge thereof to the effect that the appellant will
obey the direction of the appellate court upon the appeal.

[Code § 1329, without change. Included by Board in rule 347, subd. 3.)

§ 612. Security to stay execution on judgment or
order directing conveyance. If the appeal is taken from a judg-
ment or order directing the execution of a conveyance, or other
instrument, it does not stay the execution of the judgment or
order until the instrument is executed and deposited with the
3884 Report or Jomnr LegisLativE ComMMITTrer

clerk with whom the judgment or order is entered, to abide
the direction of the appellate court.

[Code § 1330, without change. Included by Board in rule 347, subd. 4.]

§ 613. Security to stay execution on judgment or
order for the sale or possession of real property. If the judg-
ment or order directs the sale or the delivery of the possession of
real property, or entitles the respondent to the immediate posses-
sion thereof, an appeal does not stay the execution of the judgment
or order until the appellant gives a written undertaking to the
effect that he will not, while in possession of the property, commit
or suffer to be committed any waste thereon; and if the property
is in his possession or under his control, the undertaking must
also provide that if the judgment or order is affirmed or the appeal
is dismissed, and there is a deficiency upon a sale, he will pay
the value of the use and occupation of such property, or the part
thereof as to which the judgment or order is affirmed, from the
time of taking the appeal until the delivery of the possession
thereof, pursuant to the judgment or order, not exceeding a speci-
fied sum fixed by a judge of the court below. If the judgment
directs a sale of real property upon the foreclosure of a mortgage
and an appeal is taken by a party against whom payment of the
deficiency is awarded by such judgment, the undertaking must also
provide that if the judgment is affirmed or the appeal is dismissed
the appellant will pay any deficiency which may occur upon the
sale, with interest and costs, and all expenses chargeable against
the proceeds of the sale, not exceeding a sum fixed by a judge of
the court below.

[Code § 1331, without change. Included by Board in rule 347, subd. 5.]

§ 614. Form of undertaking where appeal from judg-
ment or order of affirmance. Where the judgment or order,
from which an appeal is taken to the court of appeals, affirms a
judgment or order to the effect specified in either of the last five
sections, the undertaking must be the same as if the judgment or
order from which the appeal is so taken was to the same effect
as the judgment or order so affirmed.

[Code § 1332, without change. Included by Board in rule 347, subd. 6.]

§ 615. The last six sections qualified. The last six sec
tions do not extend to a case where it is specially prescribed
Civit Practice Act 3835

by law that an appeal may be taken or the execution of a judg-
ment or order appealed from may be stayed, without security, or
where the security to be given, for either purpose, is specially
regulated by law.

[Code § 1333, without change. Included by Board in rule 347, subd. 7.]

§ 616. Case on appeal where verdict was subject to
opinion of court. Where an appeal to the court of appeals from
a judgment rendered by the appellate division of the supreme
court upon a verdict subject to the opinion of the court has been
perfected, a case, containing a concise statement of the facts, of
the questions of law arising thereupon, and of the determination
of those questions by the appellate division, must be prepared
and settled by or under the direction of the court below and
annexed to the judgment-roll. An exception is not necessary to
enable the court of appeals to review the determination of a ques-
tion of law arising upon the verdict. A certified copy of the case
must be transmitted to the court of appeals instead of the case
upon which the judgment of the court below was rendered. The
court below or a judge thereof may extend the time limited by
law within which the papers must be transmitted to the court of
appeals for the purpose of enabling the appellant to procure the
case to be prepared or settled.

[Code § 1339, without change.]

§ 617. When reversal presumed not to be on a ques=
tion of fact. Upon an appeal to the court of appeals from a
judgment reversing a judgment entered upon the report of a
referee upon the verdict of a jury or a decision or a determina-
tion in the trial court, or from an order granting a new trial
upon such a reversal, it must be conclusively presumed that the
judgment was not reversed, or the new trial granted, upon a
question of fact, unless the particular question or questions of
fact upon which the reversal was made or the new trial was
granted are specified and referred to by number or other adequate
designation in the body of the judgment or order appealed from.

[Code § 1338, without change. Included by Board in Judiciary Law, § 36.]

§ 618. Review of intermediate determination of ap=
pellate division upon appeal from final judgment. Where
final judgment is taken at a special term or trial term, or pur-
336 Rerort or Jornr Luarsiarive, COMMITTEE

suant to the directions of a referee, after the affirmance, upon an
appeal to the appellate division of the supreme court of an inter-
locutory judgment; or after the refusal by the appellate division
of a new trial, either upon an application made in the first
instance at a term of the appellate division, or upon an appeal
from an order of the special term, or of the judge before whom
the issues of questions of fact were tried | by a jury; [an appeal
to the appellate division from the final judgment brings up, for
_Teview, only the proceedings to take the final judgment, or upon
which the final judgment was taken, including the hearing or
trial of the other issues in the action, if any. If] on an appeal
[is taken, J to the court of appeals from the determination of
the appellate division upon the appeal from the final judgment,
the, determination of the appellate division affirming the inter-
locutory judgment or refusing the new trial may, at the election
of either party, be reviewed thereupon. If the respondent elects
to bring it up for review, he may take a cross-appeal therefrom,
notwithstanding the expiration of the time to take an original
appeal therefrom.

. [Code §, 13850, as to appeal to court of appeals. Included by Board in

‘Judiciary Law, § 38. The section as to power of appellate division included
under “Appeals to appellate division,” | § 981, post.]

§ 619. Judgment or order of court of appeals. [An
appeal to the court of appeals from a final judgment, or from an
order, granting or refusing a new trial in an action, where the

appellant stipulates that upon affirmance judgment absolute shall
be rendered against him, brings up for review in that court only
questions of law; but where the justices of the appellate division
from which an appeal'is taken are divided upon the question as
to whether there is evidence supporting, or tending to support,
a finding or verdict not directed by the court, a question for review
‘is presented. In any action, on an appeal to the court of appeals,
the court may either modify or affirm the judgment or order
appealed from, ‘award ‘a new trial, or grant to either party such
judgment as such party may be entitled to.

“TCode § 1337, last sentence. The first clause omitted as covered by § 952,

subd. 2. The second clause is included in § 952, subd. 8. Included by Board
in Judiciary Law, § 40.]

§ 620. When judgment absolute to be rendered and
proceedings thereupon. Upon an appeal from an order grant-
Civit Practicr Acr 4 3387

ing a new trial on a case or exceptions, if the court of appeals
determine that no error was committed in granting the new trial,
it must render judgment absolute upon the right of the appellant;
and after its judgment has been remitted to the court below, an
assessment of damages, or any other proceeding, requisite to
render the judgment effectual, may be had in the latter court.

[Code § 194, second sentence, without change. Included by Board in Judici-
ary Law, § 39.]

§ 621. Remittitur. The judgment or order of the court

of appeals must be remitted to the court below to be enforced
according to law.

[Code § 194, first sentence, without change. Included by Board in Judici-
ary Law, § 41.]

ARTICLE 40

- APPEALS TO THE APPELLATE DIVISION OF
THE SUPREME COURT

Section 622. Appeal from final judgment.
623. Appeal from order of court in action.
624. Appeal from judge’s order in an action.
625. Appeal from interlocutory judgment.
626. Limitation of time to appeal.
627. Stay by appellate division pending appeal.
628. Stay of execution of judgment or order.
629. Stay of proceedings without order.
630. Record on appeal.
631. Where appeal to be heard.
632. Removal of appeal to another department.
633. Review limited to matters not previously disposed
of by appellate division.
634. Decision of reversal to specify grounds.
635. Entry of judgment or order of appellate division.

§ 622. Appeal from final judgment. An appeal may
be taken to the appellate division of the supreme court from a
final judgment rendered in the supreme court [as follows:

1. Where the judgment was rendered] upon a trial by a
referee, or by the court without a jury, [the appeal may be taken
upon questions of law, or upon the facts, or upon both.
338 Report or Joint LeaisuativE ComMItrTEE

2. When the judgment was rendered] or upon the verdict of
a jury, [the appeal may be taken] upon questions of law, or upon
the facts, or upon both.

[Code § 1346, without change of substance. This section seems to super-
sede the first clause of the second sentence of § 993. The latter part of § 993

seems covered by the general language of Code § 1817, re-enacted as § 947,
ante, }

§ 623. Appeal from order of court in action. An
appeal may be taken to the appellate division of the supreme
court from an order[[, made prior to the first day of January,
one thousand eight hundred and ninety-six,] in an action, upon
notice, [at a special term or a trial term of a superior city court,
or of the supreme court, or at a term of the circuit court, and
from an order] made at a special term or trial term of the
supreme court[[, after said day,] in either of the following cases:

1. Where the order grants, refuses, continues or modifies a
provisional remedy ; or settles, or grants, or refuses an application
to resettle a case on appeal or a bill of exceptions.

2. Where it grants or refuses a new trial; except that where
specific questions of fact arising upon the issues in an action
triable by the court have been iried by a jury, pursuant to an
order for that purpose, [as prescribed in section 971 of this act,]
an appeal cannot be taken from an order granting or refusing a
new trial upon the merits.

3. Where it involves some part of the merits.

4. Where it affects a substantial right.

5. Where, in effect, it determines the action and prevents a
judgment from which an appeal might be taken.

6. Where it determines a statutory provision of the state to be
unconstitutional; and the determination appears from the reasons
‘given for the decision thereupon or is necessarily implied in the
decision.

An order made upon a summary application after judgment
is deemed to have been made in the action within the meaning
of this section.

[Code § 1347, without change of substance. Obsolete provisions omitted.
Included by Board in Judiciary Law, § 65. The decisions limit the right to
appeal from an order, procured “upon notice,” and the preliminary part of
the section has been amended to clarify its meaning.]

§ 624. Appeal from judge’s order in an action. An
appeal may also be taken to the appellate division of the supreme
Crvit Practice Act 339

court from an order made in an action, upon notice, by a judge
or justice out of court, in a case where an appeal might have been
taken, as prescribed in the last section, if the order had been
made by the court.

[Code § 1348, first sentence, without change. Included by Board in
Judiciary Law, § 66.]

§ 625. Appeal from interlocutory judgment. An appeal
may also be taken to the appellate division of the supreme court
from an interlocutory judgment rendered at a special term or
trial term of the supreme court or entered upon the report of a
referee,

[Code § 1349, without change. Included by Board, modified to new prac.
tice, in Judiciary Law, § 68.]

§ 626. Limitation of time to appeal. An appeal [author-
ized by this title,] to the appellate division of the supreme court,
except as otherwise provided by statute, must be taken within
thirty days after service upon the attorney for the appellant of
a copy of the judgment or order appealed from and a written
notice of the entry thereof.

[Code § 1351, first sentence without change of substance. Included by
Board in rule 335, subd. 2.]

§ 627. Stay by appellate division pending appeal. [It]
The appellate division may grant a stay of proceedings upon any
judgment or order of the. supreme court from which an appeal
is pending.

[Code § 1348, second clause of second sentence, without change of sub-
stance. Included by Board in Judiciary Law, § 119.]

§ 628. Stay of execution of judgment or order. Secu-
rity is not required to perfect [the] an appeal from the
supreme court to the appellate division thereof ; but except where
it is otherwise specially prescribed by law, the appeal does not
stay the execution of the judgment or order appealed from, unless
the supreme court[, in or from which the appeal is taken,] or a
justice [judge] thereof makes an order directing such a stay.
Such an order may be made, and [may], from time to time, may
be modified, upon such terms, as tu security or otherwise, as justice
requires. If security is given, either as a condition of granting
340 . Rerorr or Jour Learsparive Commirrne

the order, or as prescribed in the next section, the provisions
relating to stay and security on appeal to the court of appeals [of
title second of this chapter] apply thereto as if the appellate
division of the supreme court was specified in those provisions
in place of the appellate court, and a justice [judge] of the
[same] supreme court, in place of a judge of the court below.
Execution of a judgment for the recovery of money only shall not
‘be stayed without security for more than thirty days after the
service upon the attorney for the appellant of a copy of the judg-
ment and written notice of the entry thereof.

[Code § 1351, except first sentence, without change of substance. The
first sentence included in § 974, ante.]

§ 629. Stay of proceedings without order. Upon an appeal
to the appellate division from a final judgment of the supreme
court, [taken as prescribed in this title,] the appellant may give
the security required to perfect an appeal to the court of appeals
from a judgment of the same amount or to the same effect, and
to stay the execution thereof. In that case, the execution of the
judgment appealed from is stayed as upon an appeal to the court
of appeals, and subject to the same conditions,

' [Code § 1352, without change of substance. Included by Board in rule
348.]

§ 630. Record on appeal. An appeal to the appellate
division from a final judgment of the supreme court [taken as
‘prescribed in this title,] must be heard upon a certified copy of
the notice of appeal, of the judgment-roll, and of the case or
notice of exceptions, if any, filed, as prescribed by law [or the
general rules of practice], after the entry of the judgment, and
either before or after the appeal is taken, and a copy of the order,
if any, denying a motion for a new trial, which the court would
have jurisdiction to review on such appeal. An appeal to the
appellate division from an interlocutory judgment or [from
an] order of the supreme court [taken as prescribed in this
title] must be heard upon a certified copy of the notice of appeal
and of the papers used before the court, judge or justice, upon
the hearing of the [demurrer,] application for judgment, or
motion, as the case requires. Unless the appellate division shall
in a special case otherwise direct, before an appeal shall be placed
upon the calendar, the appellant shall file with the clerk of the
Crvitn Practice Act 341

appellate division the case and exceptions or the other papers
upon which the appeal shall be heard, printed as required by
law [the rules of practice]. In case the appeal is from a judg-
ment, the printed case and exceptions must be ordered filed by the
justice or referee before whom the case was tried.

[Code § 1353, without change of substance, except to make the record
include a copy of an order denying a motion for a new trial, where such
order is reviewable.]

§ 631. Where appeal to be heard. An appeal [taken] to
the appellate division from a judgment or order of the supreme
court [as prescribed in this title.J must be heard in the depart-
ment embracing the county in which the judgment or order
appealed from is entered, unless an order is made, pursuant to
law, [as prescribed in section 231 of this act,] directing that it
be heard in another department, or unless appeals pending in one
department are transferred for hearing and determination to
another, pursuant to section one of article six[[, section one,] of
the constitution.

[Code § 1355, first sentence, without change of substance. Included by
Board in Judiciary Law, § 69-d.]

§ 632. Removal of appeal to another department.
Where in any case four justices of the appellate division in any
department are not qualified to sit therein, or where the justices
qualified to hear the appeal are equally divided, the court must
direct the same to be sent to another department to be specified
in the order to be there heard and determined. [Where] Jn any
case when an appeal to the appellate division of any department
comes on for argument, and the justice before whom the action
was tried or who granted the order appealed from is a member
of such appellate division, the appellant may make an applica-
tion to such appellate division for, and the court may grant, an
order directing that such appeal be sent to an adjoining depart-
ment to be specified in the order, to be there heard and deter-
mined. The appellate division [may], in any other appeal, may
make an order in the furtherance of justice directing that such
appeal be sent to the appellate division of any department to be
there heard and determined.

[Code § 231, without change. Included by Board in Judiciary Law, § 69-c.]
342 Report or Joiunt LecisiativE CoMMITTEE

§ 633. Review limited to matters not previously disposed
of by appellate division. Where final judgment is taken at
a special term or trial term, or pursuant to the directions of a
referee, after the affirmance, upon an appeal to the appellate
division of the supreme court of an interlocutory judgment; or
after the refusal by the appellate division of a new trial, either
upon an application, made, in the first instance, at a term of the
appellate division, or upon an appeal from an order of the special
term, or of the judge before whom the issues or questions of fact,
were tried by a jury; an appeal to the appellate division from the
final judgment brings up for review only the proceedings to take
the final judgment, or upon which the final judgment was taken,
including the hearing or trial of the other issues in the action, if
anv. [If an appeal is taken, to the court of appeals, from the
determination of the appellate division upon the appeal from the
final judgment, the determination of the appellate division, affirm-
ing the interlocutory judgment or refusing the new trial, may,
at the eleetiun of either party, be reviewed thereupon. If the
respondent elects to bring it up for review, he may take a cross-
appeal theref-or, notwithstanding the expiration of the time to
take an original appeal therefrom.]

[Code § 1350, first sentence without change. Included by Board in Judici-

ary Law, § 69-b. The last two sentences included under “ Appeals to court
of appeals.”’]

§ 634. Decision of reversal to specify grounds. The
decision of the appellate division reversing a judgment or order
shall state the exact ruling of the court, that 1s, whether or not
a reversal was made upon the facts or upon the law or upon both
the law and the facts or that the facts were affirmed and that the
reversal was upon the law and also whether or not the decision
was unanimous as to an issue or party.

[Board rule 371 broadened. The section is new and as stated by the Board
in note 46] is “intended to avoid in the future the questions that have arisen

in the court of appeals where the record judgment or order was silent =
to the grounds of reversal.”]

§ 635. Entry of judgment or order of appellate
division. The order of the appellate division made upon an
appeal must be entered in the office of the clerk of the appellate
division. A certified copy of such order with the original case or
papers upon which the appeal was heard must be transmitted to
Civin Practice Act 343

the clerk of the county where the judgment or order appealed
from was entered, or, if the appeal was from a judgment or order
of a court other than the supreme or county court, to the clerk
of the county where the court from which the appeal was taken
is situated, except as follows:

If the appeal was from a decree or order of a surrogate’s court,
they must be transmitted to the clerk of such surrogate’s court, and
if the appeal was from a judgment or order of the city court of
New York, they must be transmitted to the clerk of such city court.
The judgment, if any, rendered or directed, pursuant to any such
order, shall be entered by the clerk to whom the order and the
case and papers were transmitted. The certified copy of such
order, the judgment entered thereon and the case or papers so
transmitted shall constitute the judgment-roll and remain on file
in the office of such clerk. The filing of the judgment-roll or
the entry of the order is sufficient authority for any proceeding
in the court below or before the judge or justice who made the
order appealed from, which the judgment or order of the appel-
late division directs or permits. :

[Code §§ 1345 and 1355 combined and rewritten, to conform to practice.]

ARTICLE 41

APPEALS TO SUPREME COURT FROM INFERIOR
COURTS

Section 636. Appeals to appellate division from inferior courts.
637. Appeals to supreme court from inferior courts.
638. Extent of review by appellate division on appeals
from inferior courts.

639. Limitation of time to appeal from final judgment;
security.

640. Limitation of time to appeal from order; stay of
proceedings.

6-L1. Hearing of appeals from city or municipal courts
of New York; appellate terms of supreme court.

642. Hearing of. appeals from city court of Buffalo.

643. Judgment or order of supreme court on appeal
from inferior or local court.

644. Application of provisions relating to appeals in the
supreme court.
844 Report or Jornt Leotstative ComMirrre

§ 636. Appeals to appellate division from inferior
courts. [Except appeals from inferior and local courts hereto-
fore heard in the court of common pleas for the city and county
of New York, and the superior court of Buffalo, aJ An appeal
may be taken to the appellate division of the supreme court from
a final judgment rendered by a county court or by any other court
of record possessing original jurisdiction, or from an order affect-
ing a substantial right made by a court or judge in an action
brought in or taken by appeal to such a court, where an appeal
therefrom to the supreme court or to a court other than the
supreme court is not expressly given by statute.

[Code § 1340, first sentence, § 1342.]

§ 637, Appeals to supreme court from inferior courts.
Appeals from inferior and local courts not of record [heretofore
heard in the court of common pleas for the city'and county of
New York and the superior court of Buffalo,} where an appeal
therefrom to a court other than the supreme court is not expressly
gwen by statute may be taken to the supreme court.

[Code § 1340, last sentence, broadened.]

§ 638. Extent of review by appellate division on ap-=
peals from inferior court. [and uJ] Upon [such] an appeal
to the appellate division of the supreme court from the judgment
of an inferior or local court, an order granting or refusing a new
trial [for any of the causes .nentioned in section nine hundred
and ninety-nine of this act] made by any of said courts, and
questions of fact, may be reviewed in the same manner and to the
same extent as questions of fact may be reviewed upon appeal
to the appellate division of the supreme court from a final judg-
ment and order granting or refusing a new trial rendered by
the same court.

[Code § 1340, second clause of first sentence, without change of substance.]

§ 639. Limitation of time to appeal from final judg-
ment; security. An appeal to the supreme court or the appellate
division thereof from the final judgment of an inferior or local
court, except where otherwise expressly provided by law, [author--
ized by the last section,] must be taken within thirty days after
service upon the attorney for the appellant of the copy of the
judgment, and written notice of the entry thereof. Security is
Crvit Practricz Aor 345

not required to perfect the appeal, but to stay the execution of
the judgment, security must be given and the sureties may be
excepted to and must justify as upon an appeal to the court of
appeals from a judgment of the same amount or to the same
effect.

[Code § 1341, without change of substance.]

§ 640. Limitation of time to appeal from order; stay
_ of proceedings. An appeal to the supreme court or to the appel-
late division thereof from the final judgment of an inferior or
local court, except where otherwise expressly provided by law,
[authorized by the last section, must be taken within sixty
days after service upon the attorney for the appellant of a copy
of the order, and written notice of the entry thereof. Security
is not required to perfect it, but it does not stay the execution
of the order from which it is taken. The appellate court, or a
judge thereof, may direct such a stay upon such terms as to
security or otherwise as justice requires.

[Code § 1343, without change of substance.]

§ 641. Hearing of appeals from city or municipal
courts of New York; appellate terms of supreme court. [1.
An appeal taken as prescribed in this title must be heard by the
appellate division of the supreme court, except that a] Appeals to
the supreme court from judgments or orders of the city court or
municipal court of the city of New York, or from judgments
or orders of the city court of the city of New York] may be
heard either by the appellate division of the supreme court or by
not Jess than three justices’ of the supreme court in each of the
first and second judicial departments, who shall be designated
for that purpose by the justices of the appellate division sitting
in said departments and who shall be known as the appellate
term of the supreme court in the first and second departments,
respectively. [29 When an appeal shall have been heard and
determined by such an appellate term [constituted as herein pro-
vided], the justices thereof or a justice of the appellate division
in the same department may allow a further appeal to be taken
from that determination to such [said] appellate division.

[Code § 1344, subds. 1 and 2, without change of substance.]
346 Report or Joint LeaistativE ComMItrEe

§ 642. Hearing of appeals from city court of Buffalo.
[3.] Appeals from the city court of Buffalo [inferior courts
heretofore heard by the superior court of Buffalo] shall be heard
by the appellate division of the supreme court in the fourth
judicial department or by such justice or justices of the supreme
court as may be designated for that purpose by the justices of
the appellate division of [said] such department.

[Code § 1344, subd. 3, without change of substance.]

§ 643. Judgment or order of supreme court on appeal
from inferior or local court. A judgment or order of the supreme
court rendered upon an appeal from a judgment of an inferior
or local court, except as otherwise provided by law, must be
entered in the office of the clerk of the county wherein the court
below is located. Where the appeal is from the city court of
New York, the judgment or order of the supreme court must be
entered in the office of the clerk of such court. Where the appeal
is from the city court of Buffalo, the judgment or order of the
supreme court must be entered in the office of the clerk of such
court. The judgment or order of the supreme court, with
the papers transmitted from the court below, forms the judgment-
roll, which must be filed in the office of the clerk in which the
judgment or order of the appellate division is required to be
entered.

[Code § 1345, last three sentences, rewritten and broadened.]

§ 644. Application of provisions relating to appeals
in the supreme court. [[4.] The provisions [of title fourth of
this chap‘er.} relating to the hearing of appeals to the appellate
division [taken] in an action in the supreme court and to sub-
sequent proceedings thereupon apply to an appeal to the supreme
court or the appellate division thereof from a judgment or order
of an inferior or local court in an action [taken as prescribed
in this title], except as otherwise provided by statute. [specified
in the next following section and except as otherwise provided in
a statute enacted by the legislature in the year nineteen hundred
and fifteen, entitled “An act in relation to the municipal court of
the city of New York, and repealing certain statutes affecting
such court, its justices and officers.” ]

[Code § 1344, subd. 4, without change of substance.]

 
Crvit Practicr Act 347

ARTICLE 42

APPEALS FROM A DETERMINATION IN A
SPECIAL PROCEEDING

Section 645. Appeal from order in special proceedings.
646. Limitation of time to appeal from final order in
special proceedings.
647. Enforcement of affirmed or modified final order
after appeal in special proceedings.
648. Practice on appeal to appellate division from order
in special proceedings.

§ 645. Appeal from order in special proceedings. An
appeal may be taken to the appellate division of the supreme
court,

1. From an order, affecting a substantial right, made in a
special proceeding at a special term or a trial term of the supreme
court, or made by a justice thereof in a special proceeding insti-
tuted before him, pursuant to a special statutory provision, or
instituted before another judge, and transferred to, or continued
before him. [An appeal may also be taken to the appellate
division of the supreme court from an order granting or denying
an application for an alternative writ of mandamus or an alterna-
tive writ of prohibition. An appeal may also be taken to the
appellate division of the supreme court, J

2. From an order, affecting a substantial right, made by a
court of record possessing original jurisdiction, or a judge thereof,
in a special proceeding instituted in that court, or before a judge
thereof, pursuant to a special statutory provision, or instituted
before another judge, and transferred to, or continued before,
the judge who made the final order. But this [section] sub-
division does not apply to a case where an appeal from the order
to a court, other than the appellate division of the supreme court
is expressly given by statute.

3. From an order granting or denying an application for an
alternative [writ of mandamus order or an alternative [writ of]
prohibition order.

This section does not confer the right to appeal from an order.
in a case where it is specially prescribed by law that the order
cannot be reviewed.

[Code §§ 1356, 1357, without change of substance.]
848 Report or Jornt LEeGisLaTiIvE ComMMITTEE

§ 646. Limitation of time to appeal from final order
in special proceedings. An appeal to the appellate division from
a final order in a special proceeding [authorized by this title,]
must be taken within thirty days after service of a copy of the
final order from which it is taken, with a written notice of the
entry thereof, upon the appellant; or, if he appeared upon the
hearing by an attorney at law or an attorney in fact, upon the
person who so appeared for him.

_ [Code § 1359, without change of substance.]

§ 647. Enforcement of affirmed or modified final order
after appeal in special proceedings. Where a final order:
in a special proceéding from which an appeal has been taken from
one court to another [as prescribed in title fifth of this chapter,]
is wholly or partly affirmed, or is modified, upon the appeal, the
appellate court may enforce its order, or may direct the proceed-
ings to be remitted for that purpose to the court below or to
the judge who made the order appealed from.

[Code § 1320, without change of substance. Included by Board in Judici-
ary Law, § 31-n.] :

§ 648. Practice on appeal to appellate division from
order in special proceedings. The provisions [of title fourth
of this chapter,] relating to perfecting an appeal to the appellate
division from an order in an action in the supreme court [taken
as therein prescribed]; to staying the execution of the order
appealed from; to hearing the appeal; and to the entry and
enforcement of the order made upon the appeal, apply, where an
appeal is taken to the appellate division from an order in a
special proceeding, [as prescribed in this title,] except as other-
wise specially prescribed by law. The proceedings upon such an
appealf[, taken as prescribed in this title,] are governed by the
provisions of law [this act, and of the general rules of practice,]
relating to an appeal in an action, except as otherwise specially
prescribed by law.

; [Code §§ 1360, 1361, without: change of substance.]

 
Civit Pracrice Aor 349

ARTICLE 43
EXECUTIONS GENERALLY

[The subject of “ Executions” in the code of civil procedure covers sections
1362 to 1495. Practically all of these sections have been here retained in the
form of statute law. The provisions relating to executions against the person
and executions against property affect the rights of the individual so inti-
mately and so few of these provisions might properly be the subject of rules,
that it has been determined to keep the entire subject together in the form
of statute.

The objections to our existing system of court practice are directed against
the procedure in an action up to the time of obtaining judgment. The objec-
tions relate to the method of pleading, to the trial, to incidental motions
and proceedings, and to the delays which may be interposed before the judg-
ment is actually obtained. The method of obtaining satisfaction of a judg-
ment by execution is well defined, has been in successful operation for many
years, and is not the subject of criticism from either the courts or the mem-
bers of the profession. It may also be noted that the sections of the code
relating to executions are very infrequently amended and that most of them
have stood in their present form without any change since their original
enactment as part of the code, so that they cannot be said to be the subject
of constant legislative amendment. These sections have stood the test of
years of trial and under them personal and property rights have been settled
with but comparatively little litigation. The sections are for the most part
well drafted, their language is clear and unambiguous, and because of their
very nature and purpose they are here set forth as a part of the proposed
practice act with but few and unimportant changes in wording.

The board presented a number of rules on the subject of executions. See
Board’s proposed rules 378 to 386. These rules were general in their nature.
The Board retained the greater number of the code sections on executions
but distributed them among the various Consolidated Laws, as follows:
15 sections to Civil Rights Law; 6 sections to County Law; 63 sections to
Real Property Law; 13 sections to Personal Property Law; 5 sections to
Partnership Law; 6 sections to Lien Law; 4 sections to Decedent Estate Law;
1 section to Debtor and Creditor Law; 3 sections to Evidence Law; and por-
tions of a few sections to Tax Law, and Costs, Fees, Disbursements and
Interest Law. Twenty-three sections were omitted as unnecessary or as
sufficiently covered by the proposed rules. ]

GENERAL PROVISIONS

Section 649. Execution is court process.
650. Officer or person to whom execution directed.
651. Time of receipt to be endorsed on execution.
652. Kinds of execution.
653. Enforcement upon death or disqualification of
sheriff.
350 Reprorr or Jornt Leeistarive CoMMITTEE

Section 654

655.

656.
657,
658.
659.

660.

661.

662.
663.
664.
665.
666.
667.
668.
669.
670.

671.
672.
673.

REQUISITES OF EXECUTIONS

Requisites of executions generally. ;

Requisites of executions issued after transcript
filed.

Requisites of execution for collection of money.

Requisites of execution against property.

Requisites of execution for delivery of property.

Requisites of execution where warrant of attach-
ment levied.

Execution against heir, representative, tenant or
trustee.

Requisites of execution against the person.

ISSUANCE OF EXECUTIONS

To what counties execution may issue.

Separate executions where separate sums awarded.

Execution of course within five years.

Execution after death of party.

Execution after five years.

Leave to issue execution after five years.

Execution against decedent.

Execution against decedent’s property.

Execution against decedent’s property; leave to
issue,

Stay as affecting issuance of execution.

Execution against surviving judgment debtors.

Execution not to issue against the people.

SALES UNDER EXECUTIONS GENERALLY

674.
675.
676.
677.

Sale on execution; time.

Penalty for destroying notice of sale.
Failure to give notice of sale.
Purchase by sheriff at execution sale.

GENERAL PROVISIONS

§ 649. Execution is court process. An _ execution is
the process of the court from which it is issued.

[Last sentence of Code § 1364. See Board’s proposed rule 378.}
Civit Practice Act 351

§ 650. Officer or person to whom execution directed.
An execution must be directed to the sheriff, unless he is a party
or interested, in which case it must be directed [[as prescribed in
section 173 of this act] to a particular coroner or generally to the
coroners of that county. [But] The court [may], however, in
its discretion, may order an execution issued upon a judgment ren-
dered against a sheriff, either alone or with another, to be directed
to a person designated in the order, instead of to the coroners or a
particular coroner; in which case it must be so directed. The
person so désignated must be of full age, a resident of the state,
and not a party to the action, or interested therein. Where the
execution is issued upon a judgment for a sum of money or
directing the payment of a sum of money, the order does not take
effect until the person so designated executes and files in the
clerk’s office a bond to the people, with at least two sureties,
approved by a judge of the court or a county judge, in a penal
sum fixed by the order, not less than twice the sum to be collected
by virtue of the execution, conditioned for the faithful perform-
ance of his duties under the execution. A certified copy of the
order, and, where it requires a bond to be given, the clerk’s certifi-
eate that a bond has been filed, as required by the order, must be
attached to the execution. The person so designated is deemed
an officer, and, with respect to that execution, he is subject to
the obligations and liabilities and has the power and authority
of a coroner, and is entitled to fees accordingly.

[Code § 1362. The new matter inserted in first sentence covers the reference
omitted. See Board’s proposed Civil Rights Law, § 112, practically identical.]

§ 651. Time of receipt to be indorsed on execution. The
sheriff to whom an execution is directed and delivered must[[, upon
the receipt thereof,] indorse [thereupon] thereon, upon the re-
ceipt thereof, a memorandum of the day, hour and minute when
he received it.

[Code § 1363. See Board’s proposed County Law, § 190-b, identical.]

§ 652. Kinds of execution. There are four kinds of execu-
tion as follows:

1. Against property.

2. Against the person.

3. For the delivery of the possession of real property with or
without damages for withholding the same.
852 Rerorr or Joint Learstative ComMirrEr

“4. For the delivery of the possession of a chattel, with or with-
out damages for the taking or detention thereof.
[Code § 1364, except last sentence which has been made into a new section.

The whole section except a part of the last sentence was omitted by Board
as covered by proposed rule 378.)

' § 653, Enforcement upon death or disqualification
of sheriff. Where the sheriff, to whom an execution is delivered,
dies, ig removed from office, or becomes otherwise disqualified to
act, before the execution is returned, his under-sheriff must pro-
ceed upon the execution, as the sheriff might have done. If there
is no under-sheriff, the court from which the execution issued
may designate a person to proceed thereupon; who may complete
the same as ‘an under-sheriff might have done. The person so
designated must give such security as the court directs. He is
deemed an officer, and is subject to the same obligations and
liabilities, and has the same power and authority, in relation to
the object of his appointment, as a sheriff, and is entitled to fees
accordingly. But this section does not apply in a case where
special provision is otherwise made by law for the enforcement
of an execution after the death, removal from office or other dis-
qualification, of the sheriff or undershenift

| [Code'.§ 1388. See Board’s proposed County Law, §§ 190-d, 190-e,
identical.] i

REQUISITES OF EXECUTION

* 654, Reaiiisites of executions generally. An _ execu-
tion must intelligibly describe the judgment, stating the names
of the parties in whose favor, and against whom, the time when,
and.the court in which, the judgment was rendered; and, if it
was rendered in the supreme court, the county in which the judg-
ment-roll ig filed. It must require the sheriff to return it to the
proper clerk within sixty days after the receipt thereof. Except
as otherwise prescribed in the next section, it must be made return-
able to the clerk with whom the judgment-roll is filed.

. [Code §' 1366, ‘except last two sentences which have been made a new
section. See Board’s note 468.]

§ 655. Requisites of executions issued after  tran-
script filed. Where an execution is issued out of a court other
than that in which the judgment was rendered, upon fil-
ing a transcript of the judgment rendered in the latter court,
. Crviz Practice ‘Act 353

it’ must also specify the clerk with whom the transcript is: filed’
and the time of filing; and it must be made returnable to’ that:
clerk. If the judgment was rendered in the justice’s court, ‘it
must specify the justice’s name, and it must omit the specifica.
tion, respecting the filing of the judgment-roll. © eh ae
[Code § ee Omitted ay Boot eee poate’ note 468.] :
Pe 8 : Yonge) oe Sal]
§ 656. eal aise of execution for eulledtion of money.’
An execution issued upon a judgment for a sum of money or
directing the payment of a sum of. money must specify, i in the
body thereof, the sum recovered or directed to be paid’ and the’
sum actually due when it is issued. It may specify a day from
which interest upon the sum due is to be computed; in which.
case, the sheriff must collect interest accordingly, until the sum
is paid. If all the parties against whom the judgment is rendered
are not judgment debtors, the execution must show who is the’

judgment debtor.

[Code § 1368. Omitted by Biot: See Board’s note 468.) _—

§ 657. Requisites of execution against property. An execu- ,
tion against property [must], if the judgment- -roll is not filed<n
the clerk’s office of the county to which it is issued, must specify - the,
the time when the judgment was docketed in that county. - [1t.
must ,] Except in a case where special provision .is otherwise made;
by law, it. must substantially require the sheriff to satisfy ‘the judg:
ment out of the personal property of the judgment debtor ;' and, if,
sufficient personal property cannot be found, out of the Teal:,
property belonging. to him at the time when, the, judgment, was
docketed in the clerk’s office of thé county or at any time there-
after.

ted. 8 1369. ‘Omitted "Board: "Bes Board’s ‘tata 468.) ae Doya
§ 658. Requisites of Section for delivers: of: “props;
erty. An execution for the delivery of the possession. of''real-
property, or a chattel, must particularly, describe the property 3 and
designate the ‘party to whom the judgment awards the possession
thereof; and .it must substantially require the. sheriff, to deliver
the possession of. the | property, within his county, to the party,
entitled thereto. Ifa sum of money. is awarded. by. the same judg,
ment, j it may be collected by virtue of the same execution ;. on, a:

12
354: Rerort or Jormvr Leaispative CommittE&

separate execution may be issued for the collection thereof, omit:
ting the direction to deliver possession of the property. If one
execution is issued. for both purposes, it. must contain, with
respect to the money to be collected, the same directions as an
execution against property, or against the person, as the case
requires.

[Code § 1373. Omitted ae Boned. See Board’s proposed rule 378 and
note 468.) sil

-§ 659. Requisites of execution where warrant of at-
tachment levied. Where a warrant of attachment issued in
the. action has been levied by the sheriff, the execution must
substantially. require the sheriff to satisfy the judgment, as fol-
lows:

ihe Where the judgment-debtor is a non-resident, or a foreign
corporation, and the summons was served upon him or it, with-
out the state, or otherwise than personally, pursuant to an order
obtained for that purpose, [as prescribed in chapter fifth of this
act, and the judgment debtor has not appeared in the action;
out of the personal property attached, and, if that is insufficient,
out of the real property attached.

2. In any other case, out of the personal property attached ;
and, if that is insufficient, out of the other personal property of
the judgment debtor; if both are insufficient, out of the real
property attached ; and, if that is insufficient, out of the. real
property belonging to him at the time when the judgment was
docketed in the clerk’s offies of the county or at any time there
after.

[Code §' 1370. Omitted by Board, See Board’s note 468.]

8 660. Execution against heir, representative, tenant
of trustee. An execution against real or personal property in
the hands of an executor, administrator, heir, devisee, legatee,
teant of real’ property, or trustee, must substantially require the
sheriff to satisfy the judgment out of that property.

[Code § 1371. Omitted by Board. See Board’s note 468.]

Ҥ 661. Requisites of execution against the person.
An execution against the person must substantially require the
sheriff to arrest the judgment debtor and commit him to the
jail of the county until he pays the judgment or is discharged
Crvin Practice Act 355

according to law. Except where it may be issued without the
previous issuing and return of an exccution against property, it
must recite the issuing and return of such an execution, specify-
ing the-county to which it was issued.

[Code § 1372. Omitted by Board. See Board’s note 468.]

ISSUANCE OF EXECUTIONS

§ 662. To what counties executions may issue. An
execution against property can be issued only to a county in
the clerk’s office of which the judgment is docketed. An execu-
tion against the person may be issued to any county. An execu-
tion for the delivery of the possession of real property must be
issued to the county where the property or a part thereof is
situated. An execution for the delivery of the possession of a
chattel may be issued to any county where the chattel is found,
or to the sheriff of the county where the judgment-roll is filed.
Executions upon the same judgment may be issued at the same
time to two or more different counties.

[Code § 1365. Omitted by Board as sufficiently covered by Board’s pro-
posed rule 384.}

§ 663. Separate executions where separate sums awarded.
Where a judgment awards different sums of money to
or against different parties, a separate execution may be issued
to collect each sum so awarded, subject to the power of the court
to control the enforcement of the executions, upon motion, where
the collection of one execution will, wholly or partly, satisfy
another.

[Code § 1374. Omitted by Board as covered by Board’s proposed rule
378.]

§ 664. Execution of course within five years. Except
as otherwise specially prescribed by law, the party recovering a
final judgment, or his assignee, may have execution thereupon,
of course, at any time within five years after the entry of the
judgment.

[Code § 1375. See Board’s proposed Civil Rights Law, § 106, identical.]

§ 665. Execution after death of party. Where the party
recovering a final judgment has died, execution may be
356 Report or Jornr Leatstarive Commirret

issued at any time within five years after the entry of the judg-
ment, by his personal representatives, or by the assignee of the
judgment, if it has been assigned, and the execution must be
indorsed with the name and residence of the person issuing the
same. And where a party or one or more of several parties
against whom a judgment for the recovery of possession of real
property has been obtained has died, an order granting leave to
issue and execute such execution or writ of possession may be
granted upon giving twenty days’ notice to the occupants of the
lands so recovered and to the grantees or devisees of said deceased,
or if he dies intestate, to the heirs at law of said deceased, said
notices to be served in the same manner as a summons is directed
to be served in an action in the supreme court.

[Code § 1376. First sentence omitted by Board as covered by proposed
rule 381, and last sentence omitted as covered by proposed rule 380.]

§ 666. Execution after five years. After the lapse of
five years from the entry of a final judgment, execution can be
issued thereupon in one of the following cases only:

1. Where an execution was issued thereupon within five years
after the entry of the judgment, and has been returned wholly
or partly unsatisfied or unexecuted.

2. Where an order is made by the court granting leave to
issue the execution.

[Code § 1377. See Board’s proposed Civil Rights Law, § 107, identical.]

§ 667. Leave to issue execution after five years. Notice of an
application for an order granting leave to issue an execution, as
prescribed in the last section, must be served personally upon the
adverse party, if he is a resident of the state and personal service
can[[, with reasonable diligence,] be made upon him therein with
reasonable diligence ; otherwise, notice must be given in such man-
ner as the court directs. Where the judgment is for a sum of money
or directs the payment of a sum of money, leave shall not be
granted except on proof, by affidavit, to the satisfaction of the
court, that the judgment remains wholly or partly unsatisfied.

[Code § 1378. Omitted by Board as covered by proposed rule 380.]

§ 668. Execution against decedent. An _ execution to
collect a sum of money cannot be issued against the property
Civit Practice Act 357

of a judgment debtor who has died since the entry of the judg-
ment except as prescribed in the next two sections.

[Code § 1879. See Board’s proposed Decedent Estate Law, § 129-j,
identical.}

 § 669. Execution against decedent’s property. 1, After
the expiration of one year from the death of a party against
whom a final judgment for a sum of money or directing the
payment of a sum of money is rendered, the judgment may
be enforced by execution against any property upon which it is
a lien with like effect as if the judgment debtor was still living.

2, [But] Such an exccution shall not be issued, however, unless
an order granting leave to issue it is procured from the court
from which the execution is to be issued, and from a surrogate’s
court of this state, which has duly granted letters testamentary
or letters of administration upon the estate of the deceased judg-
ment debtor.

3. Where the len of the judgment was created as pre
scribed in sections [twelve hundred and fifty-one] five hundred
and twenty-five and five hundred and twenty-six of this act,
neither order can be made until the expiration of eigh-
teen months after letters testamentary or letters of administra-
tion have been duly granted upon the estate of the decedent, and
for that purpose such a lien existing at the decedent’s death con-
tinues for two years thereafter, notwithstanding the previous
expiration of ten years from the filing of the judgment roll.

4, [But] Where letters upon the estate of the decedent have not
been granted within eighteen months after his death by the sur-
rogate’s court of the county in which the decedent resided at the
time of his death, or if the decedent resided out of the state
at the time of his death, and letters testamentary or letters of
administration have not been granted within the same time by
the surrogate’s court of the county in which the property on which
the judgment is a lien is situated, such court may grant the order
where it appears that the decedent did not leave any personal prop-
erty within the state upon which to administer. In such case the
lien of the judgment existing at the decedent’s death continues for
two years as aforesaid.

5. [Provided, however, that] Such judgment lien, existing at
the decedent’s death, upon the decedent’s real property, or some
portion thereof, may be enforced and payment thereof obtained
358 Report or Joint Leoisuative Commirrer

during the said eighteen months after granting of letters testa-
mentary, or letters of administration, in the manner prescribed
by [title four of chapter eighteen of this act] the surrogate court
act for the disposition of decedent’s real property for the payment
of debts.

6. [But] This section shall not apply to real estate which
shall have been conveyed, or hereafter may be conveyed,
by the deceased judgment debtor during his lifetime, if
such conveyance was made in fraud of his creditors or
any of them, and any judgment creditor of said deceased,
against whose judgment said conveyance shall have been, or may
hereafter be, declared fraudulent by the judgment and decree of
any court of competent jurisdiction, may enforce his said judg-
ment against such real property, with like effect as if the judg-
ment debtor was living, and it shall not be necessary to obtain
the leave of any court or officer to issue such execution and the
same may be issued at any time to the sheriff of the county where
such property is or may be situated. The person issuing such
execution, however, shall annex thereto a description of the real
estate against which the same is sought to be enforced, as afore-
said, and shall endorse on said execution the words “issued under
section [thirteen hundred and eighty] six hundred and sixty-
nine of the [code of civil procedure] civil practice act” ; where-
upon said sheriff shall enforce said execution as therein directed,
against the property so described, and not against any other prop-
erty, either real or personal, and all provisions of law relating to
the sale and conveyance of real estate on execution and the redemp-
tion thereof shall apply thereto.

[Code § 1380. See Board’s proposed Decedent Estate Law, § 129-k, iden-
tical, except that here the section has been subdivided.]

§ 670. Execution against decedent’s property; leave
to issue. Leave to issue an execution, as prescribed in the last
section, must be procured as follows:

1. Notice of the application, to the court from which the
execution is to be issued, for an order granting leave to issue
the execution, must be given to the person or persons whose
interest in the property will be affected by a sale by virtue of
the execution, and also to the executor or administrator of the
judgment debtor. The [general] rules [of practice] may pre
scribe the manner in which the notice must be given. Until pro-
Crvit Practice Act 359

‘vision is so made [therein], it must be served either personally,
or in such manner as the court prescribes in an order to show
cause. Leave shall not be granted, except upon proof by affi-
davit to the satisfaction of the court that the judgment remains
wholly or partly unsatisfied.

2. For the purpose of procuring a decree from the surrogate’s
court granting leave to issue the execution, the judgment creditor
must present to that court a written petition, duly verified, set-
‘ting forth the facts and praying for such a decree, and that the
persons, specified in the first subdivision of this section, may be
cited to show cause why it should not be granted. Upon the
presentation of such a petition, the surrogate must issue a citation
accordingly, which [said] citation may be served in the same
manner as is provided in the first subdivision of this section for
the service or giving of a notice to the parties or persons therein
mentioned, and, if the [general] rules [of practice of the
supreme court] do not provide for a mode of giving such notice,
such citation must be served in such manner as the surrogate by
order may prescribe, or as is otherwise provided by law; and,
upon his return thereof, he must make such a decree in the
premises as justice requires.

[Code § 1381. See Board’s proposed Decedent Estate Law, § 129-1, iden-
tical.]

§ 671. Stay as affecting issuance of execution. The
time during which the person entitled to enfarce a judgment ‘is
stayed from enforcing it, by the provision of a statute, or by an
injunction or other order, or in consequence of an appeal, is not
a part of the time limited by [this title] this act for issuing
an execution thereupon or for making an application for leave
to issue such an execution.

(Code § 1382. See Board’s proposed Civil Rights Law, § 108, identical.]

§ 672. Execution against surviving judgment debt-
ors. The last six sections do not affect the right of a judgment
creditor to enforce a judgment against the property of one or
more surviving judgment debtors as if all the judgment debtors
were living. In that case, an execution must be issued in the
usual form; but the attorney for the judgment creditor must
indorse thereupon a notice to the sheriff reciting the death of
1860 Report or Joint Leeisiarive ComMITTEE

the deceased judgment debtor and requiring the sheriff not \to
collect ithe execution out) of any property which belonged to him.
" [Code § 1383. First sentence’ covered by’ Board ‘in practically identical

teimuce in proposed Decedent Estate Law, §.129-m. The Board. omitted
the last sentence as covered. See Board’s note 468.)

aa § 673. Execution. not to issue against the people. An execu-
tion shall not be issued against the people.

[Code §. 1985, second sentence, without change. aievlaied by Board in Civil
Rights Law, § 105.]_ ; ae er ee .
i Bs 1b,

ci" SALES UNDER EXECUTIONS GENERALLY

_ § 674, Sale on execution; time, A sale of real or per-
sonal property by virtue ‘of an execution, or pursuant to the
‘directions contained in a judgment or “order, must be made at
public auction, between the hour of nine o jolgeka in the morning
and sunset.

‘

t [Code 5, 1384, except last caibenees which has been made @ new section. See
Board's proposed Gisal’ Rights Law, § Pa identical.]

§ 675. Penalty for destroying notice ee sale. A per-
son who, before the time fixed for the sale, in a notice ‘of ‘the
sale of property to be made by virtue of an execution, wilfully
takes down or defaces such a notice put up by the sheriff, or by
‘hig authority, forfeits fifty dollars to the judgment: ereditor ‘and
the same:sum to the judgment debtor, unless the notice was
‘defaced or'taken down, with the consent of the person seeking to
‘enforce the forfeiture or the execution was previously satisfied. ©

“tote § 1385. ‘Sed Board’s proposes Civil Rights Law, § 204, identical.] °

§ 676. Failure to give notice of sale. An omission
shy the sheriff: to give notice of, the sale of property. by virtue of
an execution, as required by law, or the taking down or defacing
of, a notice when put up, does not affect the “validity of a sale,
made by virtue of an execution, to a purchaser i in, good faith,
_without 1 notice of the omission or offense.

[Gode 5 1386., See Board’s proposed Civil Rights Law, § 205, practically

identical.] , ses
wigs ; ‘ , . Dah

-§ 677. Purchase by sheriff at execution sale. ‘The
ghériff ‘to’ whom an execution is ‘directed, or' the under-sheriff or
Cryin Practice Aor’ a B61

deputy-sheriff holding an execution, and conducting a sale of
property by virtue thereof, shall not, directly or indirectly, pur-
chase any of the property at the sale. A purchase made by him
or to his use is void. :

[Code § 1387. See Board’s proposed County Law, § 190-i, identical.]

flee 28
‘4

EXECUTIONS AGAINST PROPERTY

EXEMPTIONS GENERALLY

Section 678. Certain special exemptions not affected.

EXEMPTIONS OF PERSONAL PROPERTY

679. Exempt ‘personal property. »

680. Woman’s exemption as householder.

681. Exemptions to members in military or naval service.

682. Exemption of right of action or damages for taking
or injuring personal property. ' aan

683. Exemptions of exhibits’ at sale pihionts

EXEMPTIONS OF REAL PROPERTY

4 684. Exemption of burying ground. .. Se pe
' 685. Exemption of homestead..
686. Designation of exempt . nines tent. =o
687. Designation of married woman’s Homiedead:
688. Homestead exemption after owner’s death.
689. Suspension of occupation as affecting homestead.
690. Exemption of homestead exceeding one thousand
dollars in value.
.691. Sale of, homestead exceeding one, thousand.dollars
ee in value.
692. Cancellation of exemption’ of, real property.

LIEN UPON PERSONAL PROPERTY

_ 693. Personal property. bound by execution.
694. Order of preference among executions.
695. Order of preference when attachments also issued.
696. Preference when issued from court not of record.
697. Title of bona fide purchasers before levy.
362 Report or Joint LeaistativE ComMITTEE

LEVY UPON AND SALE OF PERSONAL PROPERTY

Section 698.

699.

700.
701.
702,
703,
704.
705.
706.

107.

708.
709.
710.
711.
712.
7138.

714..
715.
716.

717.
718.
419.
720.
721.

Levy upon earnings or income of judgment debtor.

Accounting for moneys collected under execution
against earnings or income.

Levy upon money and gold coin.

Levy upon certain evidences of debt.

Levy upon interest of bailor in goods pledged.

Discharge of levy after appeal.

Application by partners for release of property.

Undertaking on application by partners.

Levy on partner’s interest where attachment dis-
charged.

When undertaking by party enures to other judg-

ment creditors.
Sale of partner’s. interest and disposition of surplus.
Exhibit of property levied upon, to creditor.
Claim of property. by. third person.
Proceeding when claimant succeeds.
Action to recover property or damages by claimant.
Substitution of indemnitors as defendants in action
against officer.
Notice of application for substitution and proofs.
Terms on granting order substituting indemnitors.
Severance where indemnity related to part of
property.
Application by officer when joined with indemnitors.
Effect of order substituting indemnitors.
Notice by officer to whom indemnity given.
Sale of personal property under execution.
Notices of sale of personal property.

SALE AND EXEMPTION OF REAL PROPERTY

122.

723.
724,
725.

726.
727.

“Real property” includes certain “leasehold prop-
erty.”

Levy upon real property held in trust.

Sale of equity of redemption in mortgaged property.

Direction endorsed on execution regarding mort-
gaged property.

Notice of sale of real property.

‘Description of property in notice of sale.
Section 728.
729.
730.
731.
732.
738.

734,
735.
736.
737,
738.
739.
740.
741.
742.

743.
744,
745.
746.
747,
748.
749.
750.
751.
752.

753.
754.

758.

759.

Crvit Practice Act 363

Penalty for irregularity in sale.

Manner of conducting sale.

Duplicate certificates of sale.

Delivery and recording of certificates of sale.

Vesting of title to real property sold.

Rights of holder cf property during intermediate
period.

Order to prevent waste during redemption period.

Proceedings upon violation of waste order.

Punishment for violation of waste order.

Discharge of prisoner upon giving undertaking.

Time and manner of redeeming real property.

By whom redemption may be made.

Effect of redemption upon sale.

Redemption by creditor.

Payment and satisfaction upon redemption by
creditor.

Redemption by another creditor from redeeming
creditor.

Second redemption by first redeeming creditor.

Subsequent redemptions by other creditors.

Redemption by creditor after fifteen months.

Redemption in certain cases at sheriff’s office.

Redemption by original purchaser when also a
creditor.

Redemption by creditor under another judgment or
mortgage.

Redemption by person entitled to redeem part.

Redemption by owners of undivided shares.

Redemption by creditors having liens on undivided
shares.

Right to redeem not affected by agreement.

Persons to whom payment of money may be made
upon redemption.

5. Certificate of satisfaction, and clerk’s duties.
5G. Evidence to be furnished by redeeming creditor.
. Evidence to be furnished hy redeeming mortgage

creditor.

Evidence to be furnished hy redeeming executor or
administrator.

Sheriff’s duties as to papers delivered to him,
364 Reporr or Jour LeeistativE CoMMITTEE

Section 760

768.
769.

761.
762.
763.
764.
765.
766.
767,

Completion and effect of redemption.

Certificate of redemption, delivery and recording.

Conveyance by sheriff after fifteen months.

Parties entitled to receive conveyance.

‘Conveyance to executor or administrator and effect.

Acknowledgment and filing of assignment.

Under sheriff or successor to act if sheriff dies.

Delivery of papers or payment after sale by under-
sheriff or deputy.

Sales by persons specially appointed.

Appointment by court of person to execute deed.

REMEDIES FOR FAILURE OF TITLE TO REAL PROPERTY

770
771

SOLD

Recovery of purchase money by evicted purchaser.
Remedy of judgment creditor after recovery of
purchase money.

CONTRIBUTION BETWEEN OWNERS OF REAL PROP-

772.
773.
774.
775.

776.

tts

ERTY AFTER SALE

Contributions between owners of real property.

Contribution when part owner redeems.

Order of contribution.

Enforcement of contribution by means of original
judgment.

Requisites to preservation of lien of original judg-
ment. q

Clerk’s entries in preserving lien of original judg-
ment.

EXEMPTIONS GENERALLY

§ 678. Certain special exemptions not affected. The
enumeration in this article of the property which is exempt from
levy and sale by virtue of an execution does not repeal any special
provision of law relating to such an exemption, which, by its
terms, is applicable only to a particular class of persons or corpora-
tions, or to a particular locality, or otherwise to a special case.

[Code § 1389.

See Board’s proposed Personal Property Law, § 71, and

proposed Real Property Law, § 640, which cover this section in identical

language.]
Crvit Practice Act 365

EXEMPTIONS OF PERSONAL PROPERTY

- § 679. Exempt personal property. The following personal
property when owned by a householder is exempt from levy and
sale by virtue of an execution, and each moveable article thereof
continues to be so exempt while the family or any of them are
removing from one residence to another:

1, All [spinning wheels, weaving looms, and] stoves[, put up,
or] kept for use in a dwelling house; [and] one sewing machine,
with its appurtenances.

2. The family bible, family pictures, and school books, used by
or in the family; and other books, not exceeding in value fifty
dollars, kept and used as part of the family bible.

3. A seat or pew occupied by the judgment debtor or the family
in a place of public worship.

4, Ten sheep, with their fleeces, and the yarn or cloth manu-
factured therefrom; one cow; two swine; the necessary food for
those animals; all necessary meat, fish, flour, groceries and veg-
etables, actually provided for family use; and necessary fuel and
oil [and candles,] for the use of the family for sixty days.

5. All wearing apparel, beds, bedsteads, and bedding, necessary
for the judgment debtor and the family; all necessary cooking
utensils; one table; six chairs; six knives; six forks; six spoons;
six plates; six tea cups; six saucers; one sugar dish; one milk
pot; one tea pot; [one crane and its appendages; one pair of
andirons;J} one coal scuttle; one shovel; [one pair of tongs;]
and one lamp[[, and one candlestick].

6.. The tools and implements of a mechanic, necessary to the
carrying on of his trade, not exceeding in value one hundred
[twenty-five] dollars.

7. In addition to the preceding exemptions, [allowed by the
last section,J necessary household furniture, working tools and
team, professional instruments, furniture and library, not exceed-
ing in value two hundred and fifty dollars, together with the
necessary food for the team, for ninety days, are exempt from levy
and sale by virtue of an execution, when owned by a person, being
a householder, or having a family for which he provides, except
where the execution is issued upon a judgment recovered wholly
upon one or more demands either for work performed in the
family as a domestic or for the purchase money, of one or more
articles, exempt as prescribed in this [or the last] section.

[First six subdivisions are Code § 1390, with obsolete references elimi-
nated as indicated. See Board’s proposed Personal Property Law, § 68, the
366 Rerorr or Jour Learsparive Commrrrer

first six subdivisions of which are identical with the section as it now exists
in the Code. Subdivision 7 is first sentence of Code § 1391 and is identical
with Board’s Personal Property Law § 68, subdivision 7. The remainder of
Code § 1891 has been made into a new section.]

§ 680. Woman’s exemption as householder. Where the
judgment debtor is a woman, she is entitled to the same exemp-
tions from levy and sale by virtue of an execution, subject to the
same exceptions, as prescribed in the last [two] section[[s], in
the case of a householder.

[Code § 1392. See Board’s proposed Personal Property Law, § 69,
identical.]

§ 681. Exemptions to members in. military or naval
service. The pay and bounty of a non-commissioned officer,
musician or private in the military or naval service of the United
States or the state of New York; a land warrant, pension or other
reward heretofore or hereafter granted by the United States, or
by a state, for military or naval services; a sword, horse, medal,
emblem or device of any kind presented as a testimonial for
services rendered in the military or naval service of the United
States or a state; and the uniform, arms and equipments which
were used by a person in that service, are also exempt from levy
and sale by virtue of an execution, and from seizure [for non-
payment of taxes, or] in any [other] legal proceeding[; except
that real property purchased with the proceeds of a pension
granted by the United States for military or naval services, and
owned by the pensioner, or by his wife or widow, is subject to
seizure and sale for the collection of taxes or assessments lawfully
levied thereon].

[Code § 1393. The bracketed portion omitted as covered by the Tax Law.
See Board’s proposed Personal Property Law, § 68, subd. 8, practically
identical.)

§ 682. Exemption of right of action or of damages
for taking or injuring personal property. A right of action to
recover damages, or damages awarded by a judgment, for taking
or injuring personal property exempt by law from levy and sale
by virtue of an execution, are exempt, for one year after the
collection thereof, from levy and sale by virtue of an excention
and from seizure in any other legal procecding.

[Code § 1394. See Board’s proposed Personal Property Law, § 68, subd.
10, identical.]
Crvit Practice Act 367

§ 683. Exemptions of exhibits at exhibitions. No
[process of attachment,] execution[[, sequestration, replevin, dis-
tress or any kind of seizure] shall be [served or] levied upon
articles, goods, wares, merchandise or property of any description
while the same is en route to or from, or while on exhibition or
deposited by exhibitors at any international exhibition held under
the auspices or supervision of the United States, within any city
or county of the state, nor shall such property be subject to
[attachment, seizure,] levy or sale, for any cause whatever, in
the hands of the authorities of such exhibition or otherwise.

[Code § 1404-a. The section, so far as relates to the matter included

within the brackets is covered by the Personal Property Law. The Board
included the entire section in its proposed Personal Property Law as § 68.]

EXEMPTIONS OF REAL PROPERTY

§ 684. Exemption of burying ground. Land, set apart
as a family or private burying ground and heretofore designated,
as prescribed by law, in order to exempt the same, or hereafter
designated for that purpose, as prescribed in [the next] this
section, is exempt from sale by virtue of an execution, upon the
following conditions only:

1. A portion of it must have been actually used for that
purpose.

2. It must not exceed in extent one-fourth of an acre.

3. It must not contain at the time of its designation, or at any
time afterwards, any building or structure, except one or more
vaults or other places of deposit for the dead, or mortuary
monuments.

In order to designate land to be exempted as prescribed in
[the last] this section, a notice containing a full description of
the land to be exempted and stating that it has been set apart
for a family or private burying ground must be subscribed by
the owner; acknowledged or proved, and certified, in like manner
as a deed to be recorded in the county where the land is situated ;
and recorded in the office of the clerk or register of that county,
in the proper book for recording deeds, at least three days before
the sale of the land by virtue of the execution.

[All except the last sentence is Code § 1395. Last sentence is Code
§ 1396. See Board’s proposed Real Property Law, § 637, identical.]

§ 685. Exemption of homestead. A lot of land, with
one or more buildings thereon, not exceeding in value one thou-
368 Report oF Joint LeaGisLative 'ComMITTEE

sand dollars; owited -and déceupied as a residence by a house-
holder having a family, and heretofore designated as an exempt
homestead, as prescribed! by law, or hereafter designated for that
purpose, as prescribed in the next section, is exempt from sale
by virtue of an’ execution issued upon a’ judgment’ ‘recovered for
a-debt' contracted after the thirtieth day of April, eighteen hun-
dred and. fifty; unless the judgment was recovered wholly for 4
debt. or debts contracted. before: the designation of the property,
or for the purchase money thereof. But 1 no property heretofore or
hereafter designated as an exempt homestead, as prescribed “by
law; or by the next .section,, shall. ba exert: from taxation or
from sale for nonpayment of taxes or assessments.

[Code § 1397. See Board’s proposed Real Property Law, § 636, identical.]

§ 686. Designation of’ exempt homestead. In order to
designate property to be exempted’ as prescribed in the last
section, a conveyance thereof, stating in substance that it is
designed: to be held as a homestead, exempt from sale by virtue
of an execution, must be recorded, as prescribed by law; or a
notice’ containing a full description of the property and stating
that it is designed to be so held must be subscribed by the owner,
acknowledged or proved, ‘and certified, in like manner as a deed
to be recorded in the county where the property is situated,
and must: be recorded in the office of the clerk of that county,
insa book. kept for that Paes and styled the “ homestead
Ssemnee book.’”

*s “TCode g 1398. See Boani’s ‘ capated Real Se Law, § 638, iadleas

“g 687. Designation of married woman’s ‘homestead,
A’ lot of land, with one or more buildings thereon, owned by a
married woman. and occupied by her as a residence, may. be
designated | as her exempt homestead, as prescribed in the last
section ; and the property so, designated i is exempt from sale by
virtue of an execution, under the same cir cumstances and subject
to the ‘ same exceptions as the homestead of a householder having
a family:

. [Code § 1399. See Board’s proposed Real Property Law, § 636, identical.]

§ 688. Homestead exemption after owner’s death. The
exemption, prescribed by: the last three sections, ‘continues

“Qh te Yay these : fate = ‘ : RIB on oe
> -Crvin Practice Act 369

after the ‘death of the person in whose favor the Property: was
exempted, as follows:

1. If the decedent was a woman, it continues for the benefit
of her. surviving children until the majority of the youngest
surviving child.

2. If the decedent was a man, it continues for the benefit of
his widow and ‘surviving children until the majority of the
youngest surviving child and until the death of the widow.

: But the exemption ceases earlier if the property ceases to be
occupied as a residence by a person for whose benefit it may so
continue, except as otherwise prescribed in the next section.

[Code § 1400. See Board’s proposed’ Real Property Law, § 636, identical.]

-§ 689. Suspension of occupation as affecting home=
stead. The right to exemption, of a person entitled thereto, as
prescribed in the last four sections, is not affected by a suspension
of the occupation of the exempt property as a residence for a
period not exceeding one year, which occurs in consequence of
injury to, or destruction of, the dwelling house upon the premises.

‘ {Code § 1401. See Board’s proposed Real Property Law, § 636, identical.]

§ 690. Exemption of homestead exceeding one thou-
sand dollars in value. The exemption of a homestead, other-
wise valid under the provisions of this article, is not void because
the value of the property designated as exempt exceeds one
thousand dollars. In that case, the lien of a judgment attaches
to ‘the surplus as if the property had not been designated as an
exempt homestead ; but the property cannot be sold bs virtue of
an execution ° issued upon a judgment as against which it is
exempt. After the return of such an execution, the owner of
the Judgment may maintain a judgment creditor’s action to pro-
cure a judgment directing a sale of the property and enforcing
his lien upon the surplus.

[Code § 1402. See Board’s proposed Real Property Law, § 636, identical.}

sg 691. Sale of homestead exceeding one thousand dol-
lars in value. Where the judgment in a judgment creditor’s
action, brought as prescribed in the last section, or in any other
action affecting the title to an exempt homestead, directs the sale
of the property, the court must so marshal the proceeds of the
sale that the right and interest of each person in the proceeds
370 Rerortr or Jornt Lueistarive ComMMITTEE

shall correspond as nearly as may be to his right and interest in
the property sold. Money, not exceeding one thousand dollars,
paid to a judgment debtor, as representing his interest in the
proceeds, is exempt for one year after the payment, as the prop
erty sold was exempt; unless, before the expiration of the year,
he causes real property to be designated as an exempt home-
stead, as prescribed in section [1398 of this act] six hundred and
eighty-siw; in which case, the exemption ceases with respect to so
much of the money as was not expended for the purchase of that
property; and the exemption of the property so designated extends
to every debt against which the property sold was so exempt.
Where the exemption of property sold as prescribed in this
section has been continued after the judgment debtor’s death, or
where he dies after the sale and before payment to him of his
proportion _ of the proceeds of the sale, the court may direct
that portion of the proceeds which represents his interest to be
invested for the benefit of the person or persons entitled to the
benefit of the exemption, or to be otherwise disposed of as justice
requires.

[Code § 1403. See Board’s proposed Real Property Law, § 70, identical.)

_§ 692, Cancellation of exemption of real property. The owner
of real property exempt as prescribed in this article may[[, at any
time,] subscribe a notice, at any time, and personally acknowledge
the execution thereof before an officer authorized by law to take
the acknowledgment of a deed, to the effect that he cancels all
exemptions from levy or sale by virtue of an execution affecting
the property, or a particular part thereof, fully described in the
notice. The cancellation takes effect when such a notice is
recorded as prescribed in this article for recording a notice to
effect the exemption so canceled. Any other release or waiver,
hereafter executed, or an exemption of real property allowed by
this article, or of an exemption of a homestead, or a private or
family burying-ground, allowed by the provisions of law hereto-
fore in force, is void; provided, however, that nothing herein con-
tained shall be so construed as to prevent the husband and wife
from jointly conveying or mortgaging property so exempt.

[Code § 1404. See Board’s proposed Real Property Law, § 639, identical.)
Crvit Pracrice Act 371

LIEN UPON PERSONAL PROPERTY

§ 693. Personal property bound by execution. The
goods and chattels of a judgment debtor, not exempt, by express
provision of law, from levy and sale by virtue of un execution,
and his other personal property which is expressly declared by
law to be subject to levy by virtue of an execution, are bound by
the execution, when situated within the jurisdiction of the officer
to whom an execution against property is delivered, [bound by
the execution, ] from the time of the delivery thereof to the proper
officer to be executed, but not before.

[Code § 1405. See Board’s proposed Lien Law, § 196, identical.]

§ 694. Order of preference among executions. Where two
or more executions against property are issued out of the same
or different courts of record against the same judgment debtor,
the one first delivered to an officer to be executed has preference,
notwithstanding that a levy is first made by virtue of an execu-
tion subsequently delivered; but if a levy upon and sale of per-
sonal property has been made by virtue of the junior execution,
before an actual levy by virtue of the senior execution, the same
property shall not be levied upon or sold by virtue of the latter.

[Code § 1406. See Board’s proposed Lien Law, § 197, identical.]

§ 695. Order of preference when attachments also issued.
Where there are one or more executions and one or more war-
rants of attachment against the property of the same person, the
rule prescribed in the last section prevails in determining the
preferences of the executions or warrants of attachment; the
defendant in the warrants of attachment being, for that purpose,
regarded as a judgment debtor.

[Code § 1407. See Board’s proposed Lien Law, § 197, identical.]

§ 696. Preference when issued from court not of record.
[But a] An execution issued out of a court not of record, or a
warrant of attachment granted in an action pending in a court
not of record, if actually levied, has preference over another
execution issued out of any court of record or not of record which
has not been previously levied.

[Code § 1408. See Board’s proposed Lien Law, § 197, identical.]
872 Report or Joint Leaisiative ComMirTEE

§ 697. Title of bona fide purchasers before levy. The
title to personal property, acquire before the actual levy of an
execution, by a purchaser in good aith, and without notice that
the execution has been issued, is not affected by an execution
delivered, before the purchase was made, to an officer, to be
executed.

[Code § 1409. See Board’s proposed Lien Law, § 198, identical.]

LEVY UPON AND SALE OF PERSONAL PROPERTY

§ 698. Levy upon earnings or income of judgment
debtor. 1. Where a judgment has been recovered and where an
execution issued upon said judgment has been returned wholly
‘or partly unsatisfied, and where any wages, debts, earnings, salary,
income from trust funds or profits are due and owing to the judg-
ment’ debtor or shall thereafter become due and owing to him, to
the amount of twelve dollars or more per week, the judgment
ereditor may apply to the court in which said judgment was
recovered or the court having jurisdiction of the same without
notice to the judgment debtor, and upon satisfactory proof of such
facts by affidavits or aiienniee the court, if a court not of record,
a judge or justice thereof, must issue, or if a court of record, a
judge or justice; must grant an order directing that an execution
issue against the wages, debts, earnings, salary, income from trust
funds or profits of said judgment debtor, and on presentation of
such execution by the officer to whom delivered for collection to
the person or persons from whom such wages, debts, earnings,
salary, income from trust funds or profits due or to become due
to said judgment: debtor to the amount specified therein which
shall not exceed ten per centum thereof, and said levy shall be a
continuing levy until said execution and the expenses thereof
are fully satisfied and paid or until modified as hereinafter pro-
vided, but only one execution against the wages, debts, earnings,
salary, income from trust funds or profits of said sudement debtor
shall be satisfied at one time, and where more than one execution
has been issued or shall be iesued pursuant to the provisions of
this section against the same judgment debtor, they shall be satis-
fied in the order of priority in which such executions are presented
to the person or persons from whom such wages, debts, earnings,
salary, income from trust funds or profits are due and owing.

2. It shall be the duty of any person or corporation, munic-
ipal or otherwise, to whom said execution shall be presented, and
Crviz Practice Act: 373

who shall at such time be indebted to the judgment debtor named
in such execution, or who shall become indebted to such judgment
debtor in the future, and while said execution shall remain a lien
upon said indebtedness, to pay over to the officer presenting the
same such amount of such indebtedness as such execution shall
prescribe until said execution shall be wholly satisfied, and such
payment shall be a bar to any action therefor by any such judg-
ment debtor.

8. If such person or corporation, municipal or otherwise, to
whom said execution shall be presented, shall fail or refuse to pay
over to said officer presenting said execution the percentage of said
indebtedness, he or it shall be liable to an action therefor by the
judgment creditor named in such execution, and the amount so
recovered by such judgment creditor shall be applied towards the
payment of said execution.

4. Either party may apply at any time to the court from which
such execution shall issue, or to any judge or justice issuing the
same, or to the county judge of the county, and in any county
where there is no county judge, to any justice of the city court,
upon such notice to the other party as such court, judge, or
justice shall direct, for a modification of said execution, and upon
such hearing the said court, judge or justice may make such
modification of said execution as shall be deemed just, and such
execution as so modified shall continue in full force and effect
until fully paid and satisfied or until further modified as herein
provided.

5. This section, so far as it relates to wages and salary due
and owing or to become due and owing to the judgment debtor,
shall not apply to judgments recovered more than ten years prior
to September first, nineteen hundred and eight, nor to judg-
ments heretofore or hereafter recovered upon such judgments, and
any execution heretofore issued upon such judgments pursuant to
an order heretofore granted under this section shall, when this act
takes effect, cease to be a lien and continuing levy upon wages and
salary thereafter to become due and owing to the judgment debtor.

[All except first sentence of Code § 1391. See Board’s proposed Debtor and

Creditor Law, § l-mm, identical except that the section has here been
subdivided.]

-§ 699. Accounting for moneys collected under execu-
tion against earnings or income. . When an execution has been
issued against the wages, debts, earnings, salary, income from trust
374 Report oF Joint LaegisLATIvVE CoMMITTEE

funds or profits due and owing to any judgment debtor, [pursu-
ant to the provisions of this chapter,] it shall be the duty of the
sheriff or other officer or person to whom such execution shall be
delivered, from time to time and at least once every six months
from the time a levy shall be made thereunder, to account for
and pay over to the person entitled thereto all moneys collected
thereon, less his lawful fees and expenses for collecting the same.
[This section shall apply to all such executions now issued and
outstanding. ]

[Code § 1366, last two sentences. The last sentence is omitted as tem-
porary. See Board’s proposed County Law, § 190-h, identical except the last
section was retained by the Board.] -

§ 700. Levy upon money and gold coin. The officer to whom
an execution against property is delivered must levy upon current
money of the United States belonging to the judgment debtor,
and must pay it over as so much money collected, without exposing
it for sale, except that where it consists of gold coin, he must sell
it like other personal property, unless he is otherwise directed by
an order of a judge or by the judgment in the particular cause.

[Code § 1410. See Board’s proposed Personal Property Law, § 75,
identical. ] ;

§ 701. Levy upon certain evidences of debt. The officer
to whom an execution against property is delivered must levy
upon and sell a bill or other evidence of debt belonging to the
judgment debtor, which was issued by a money corporation to
circulate as money, or a bond or other instrument for the pay-
ment of money belonging to the judgment debtor, which was
executed and issued by a government, state, county, public officer,
or municipal or other corporation, and is in terms negotiable, or
payable to the bearer or holder.

[Code § 1411. See Board’s proposed Personal Law, § 76, identical.]

§ 702. Levy upon interest of bailor in goods pledged. The
interest of the judgment debtor in personal property subject
to levy, lawfully pledged for the payment of money or the
performance of a contract or agreement, may be sold, in the hands
of the pledgee, by virtue of an execution against property. The
purchaser at the sale acquires all the right and interest of the
judgment. debtor and is entitled to the possession of the property,
Civit Practice Act 375

on complying with the terms and conditions upon which the
judgment debtor could obtain possession thereof. This section
does not apply to property of which the judgment debtor is uncon-
ditionally entitled to the possession.

[Code § 1412. See Board’s proposed Personal Property Law, § 77,
identical.]

§ 703. Discharge of levy after appeal. Where an appeal
taken from a final judgment to the court of appeals has been
perfected, and the security required to stay the execution of
the judgment has been given, or where the security given
upon an appeal taken from a final judgment of the supreme
court, a county court or the city court of the city of New York,
or the municipal court of the city of New York, is equal to that
required to perfect an appeal to the court of appeals and to stay
the execution of the judgment, the court, in which the judgment
appealed from was rendered, [may,] in its discretion, and upon
such terms as justice requires, may make an order, upon notice
to the respondent and the sureties in the undertaking, discharging
a levy upon personal property made by virtue of an execution
issued upon the judgment appealed from. [But t] This section
does not authorize the discharge of a levy made by virtue of a
warrant of attachment.

[Code § 1311. See Board’s proposed Civil Rights Law, § 113.]

§ 704. Application by partners for release of prop=
erty. Where an officer has seized personal property of a partner-
ship, before or after its dissolution, upon a levy upon the interest
therein of a partner, made by virtue of an execution against his
individual property, the other partners, or former partners, hav-
ing an interest in the property, or any of them, may apply at any
time before the sale [apply] to a judge of the court, or to the
county judge of the county where the seizure was made, upon an
affidavit, showing the facts, for an order directing the officer to
release the property and to deliver it to the applicant.

[Code § 1413. See Board’s proposed Partnership Law, § 46.]

§ 705. Undertaking on application by partner. Upon such
an application the applicant must give an undertaking, with
at least two sureties, approved by the judge, to the effect that he
will account to the purchaser upon the sale to be made by virtue
B76 Rerort or Joint: Leaignative 'ComMMITTEE

of the execution, of the interest of the judgment debtor in the
property seize], in like manner as he would be bound to account
to an assignee of such an interest, and that he will pay to the
purchaser the balance which may be found due upon the account-
ing, not exceeding a sum specified in the undertaking, . which
must be not less than the value of the interest of the judgment
debtor in the property seized by the sheriff, as fixed by the judge.
The provisions of [sections 695. and 696 of this act] law relating
to determination of the value of a partnership interest and
sufficiency cf sureties, notice of application and dismissal thereof
for failure of applicant to appear, in proceedings to discharge an
attachment as to a partnership interest, shall apply to the Dre
ceedings taken as prescribed in this and the last section.

[Code § 1414. See Board’s proposed Partnership Law, § 47, identical
except for the new matter substituted for bracketed matter.]

§ 706. Levy on partner’s interest where attachment
discharged. Where'a warrant of attachment has been levied upon
the interest of a defendant, as a partner, in personal property, of
a partnership, and the attachment has been discharged as to that
interest, as prescribed [in sections 693 and 694 of this act] by
the provisions of this act relating to the discharge of.a partner-
ship interest, a levy by virtue of an execution against his individ-
ual property cannot be made upon his interest on the same prop-
erty unless the warrant of attachment has been vacated or
annulled. - ox if See €

de

[Code § 1415. See Board’s proposed Partnership Law, § 43.]

§ 707. When undertaking by partner enures to other
judgment creditors. Where personal property of a partnership
has been released upon giving an undertaking, as prescribed in
the last three sections, if the execution by virtue of which the
levy was made is set aside, or is satisfied without a sale of the
interest levied upon, the mndertaling enures . to the benefit of
each judgment creditor of the same ad oicnt debtor then hav-
ing an execution in the hands of the same officer, or of another
officer having authority to levy upon that interest, as if it had
been given to obtain a release from a seizure made by virtue of
such an execution.

[Code §; 1416. See Board’s proposed Partnership Law, .§ 43, identical.]
-Orvin Practicr Act 877

§ 708. Sale of partner’s interest and disposition of
surplus. Where personal property of a partnership has been
so released, the interest of the judgment debtor therein may be
‘sold by the officer; and the purchaser upon the sale acquires
all that interest as if he was an assignee thereof. If the purchase-
money exceeds the amount of all the executions and warrants of
attachment. against the property of the same judgment debtor,
of which the officer has notice, and of the lawful fees and charges
thereon, the officer must pay the surplus into court for the
benefit of the judgment debtor or other person entitled thereto.

[Code § 1417. See Board’s proposed Partnership Law, § 44, identical.]

§ 709. Exhibit of property levied: upon, to creditor.
‘The sheriff to whom an execution is issued shall at any time before
‘the sale of the personal property levied on by him, on the written
‘request of any person who is a creditor of the person against whom
the writ was issued under which the sheriff levied upon the prop-

“erty, exhibit to such creditor the personal property so levied upon
under said writ and permit an inspection thereof by such creditor
or his agent.

" [Code § 1384, last sentence. See Board’s proposed County Law, § 190-c,
‘identical. ]

’ § 710. Claim of property by third person. If personal
property levied upon as the property of the judgment debtor
‘is claimed by or in behalf of another person, as his prop-
erty, an affidavit may be made and delivered to the sheriff in
behalf of such person at any time while such property or the
proceeds thereof are in the sheriff’s possession stating that he
makes ‘such a claim; specifying in whole or in part the property
to which it'relates, and in all cases stating the value of the prop-
erty claimed and the damages, if any, over and above such value,
‘which the claimant will suffer in case such levy is not released.
‘Th that ease the officer [may], in his discretion, may empanel a
puy to try the validity of the claim

- [Code § 1418. Omitted’ by Board as covered by its proposed rule 386.]

"§ 71. Proceedings when claimant succeeds. If by
their inquisition the jurors find that the property belongs to the
‘claimant, they must also determine its value and the damages
above such value as specified in the last section. Thereupon the
378 Revorr or Jort Leqisuative ComMIrrEE

officer may relinquish the levy, unless the judgment creditor gives
him an undertaking with at least two sufficient sureties, to the
effect that the sureties will indemnify him to an amount therein
specified, not less than twice the value of the property and
damages as determined by the jury, and two hundred and fifty
dollars in addition thereto, against all damages, costs and
expenses in an action to be brought against him by any person,
by the claimant, his assignee or other representative, by reason
of the levy upon, detention or sale of any of the property by
virtue of the execution. If the undertaking is given, the officer
must detain the property as belonging to the judgment debtor.
Where an undertaking is given to indemnify an officer, he must
cause the same to be.filed, within two days after the giving of
the said undertaking, [cause the same to be filed] in the office of
ithe clerk of the court out of which the execution was issued, and
serve upon the claimant, his assignee or other representative, and
the judgment creditor, or the attorney whose name is subscribed to
the execution, a copy of the said undertaking with a notice of the
justification of the sureties thereon. The justification must take
place before a judge of.the court out of which the execution was
issued, at a time to be specified in the notice, which must not be less
‘than two nor more than five days after service of said notice. For
the purpose of justification, each of the sureties upon the undertak-
ing must attend before the judge at the time and place mentioned
in the notice, and be examined on oath, on the part of the
claimant, his assignee or other representative, touching his suffi-
ciency in such manner as the judge in his discretion thinks proper.
The examination may be adjourned from day to day until it is con-
pleted, but such adjournment must always be to the next judicial
day. If required by the claimant, his assignee or other repre
sentative, the examination must be reduced to writing and sub
scribed by the sureties. If the judge finds the sureties sufficient,
he must annex the examination to the undertaking, endorse his
allowance thereon, and cause the said undertaking together with
the examination of the sureties to be filed with the clerk of the
court. Thereupon the sheriff is released and discharged from all
liability by reason of the levy upon, detention and sale of the
property seized. When any such undertaking shall have been
approved and filed, as hereinbefore provided, the clerk of the
court [shall], immediately upon the same being filed, shall index
the same in the index book in his office, under which executions
Civin, Practice Act 379

are indexed, under the title of the suit in which the execution is
issued.

[Code § 1419. Omitted by Board as covered by its proposed rule 386.]

§ 712. Action to recover property or damages by
claimant. If the property is found to belong to the defendant,
the finding does not prejudice the right of the claimant to bring
an action to recover the property so levied upon or damages by
reason of the levy, detention or sale.

[Code § 1420. See Board’s proposed Civil Rights Law, § 72, identical.]

§ 713. Substitution of indemnitors as defendants. Where
an action to recover a chattel or chattels hereafter levied upon
by virtue of an execution, or several executions, or a warrant
of attachment, or several warrants of attachment, or to recover
damages by reason of a levy or levies upon detention, sale or
sales of personal property hereafter made by virtue of an execu-
tion or several executions, or a warrant of attachment, or several
warrants of attachment, is brought against an officer, or against
a person who acted by his command or in his aid, if a bond or
bonds or written undertaking or undertakings indemnifying the
officer against the levy or levies, or other act or acts, has been
given in behalf of the judgment creditor or the several judgment
creditors, or the plaintiff in the warrant or the plaintiffs in the
several warrants, either before or after the commencement of the
action, the persons or person or the several persons who gave it
to them, or the survivors if one or more are dead, may apply to
the court for an order to substitute the applicant or several appli-
cants as defendants in the action in place of the officer or of the
person so acting by his command or in his aid; and the court,
[may] upon application of the officer, or in case of his death,
upon the application of his legal representatives, may grant an
order substituting the indemnitors as defendants in the action
in place of the officer or of the person so acting by his command
or in his aid. .

[Code § 1421. The entire section was omitted by the Board as covered by
its proposed rule 220.]

§ 714. Notice of application for substitution and proofs.
Where the application is made by the officer, notice of the
880 Report or Joint Lxeoisnative ComMIrreE

application must be given to the indemnitors or their attorney
and also to the attorney for the plaintiff. If the pleadings do
not sufficiently show that the case is one where the order may be
granted, the facts with respect thereto must be shown by affi-
davit or other competent proof. Where the application is made by
the indemnitors, or one of them, the motion papers must contain a
written, consent to be made defendant in the action executed by
each person who executed the instrument or instruments of
indemnity, unless proof by affidavit is furnished that those who
do not consent are dead. Each consent must be acknowledged or
proved and certified in like manner as a deed to be recorded in
the county, and notice of the application must be given to the
attorney of each party to the action, and if the defendant has not
‘appeared, notice must be given to him personally.

[Code § 1422. Omitted by Board as covered by its proposed rule 220.]

§ 715. Terms on granting order substituting indemnitors.
Upon granting the order, the court [may], in its discretion,
may require the indemnitors to furnish additional security to
the plaintiff and to pay the reasonable expenses of the defend-
ant necessarily incurred before the order is granted, or it may
impose such other terms for the security of either of the original
parties’ ‘as justice requires.

[Code § 1423. Omitted by Board as covered by its proposed rule 220.]

. § 716. Severance when indemnity related to part of prop-
erty. If the indemnity given related to a part only of the property,
the. court [may], in a proper case, may direct that the action
be divided into two actions, that the indemnitors be substituted
as defendants in one without affecting the other, and that the
controversy in each action be limited to that part of the property
in respect to which it is to be continued. Where such an order
is.made a similar application may be subsequently made in the
action which proceeds against the original defendant.

[Code § 1424. Omitted by Board as covered by its proposed rule 220.]

§ 717. Application by officer when joined with indemnitors.
If the officer or person acting by his command, or in his aid,
is joined as a defendant with “all the tidemnttens, he may apply
for an order to strike out his name as a defendant. If he is
joined as a defendant with one or more, but not all of them,
he may apply for an order substituting those who are not joined
Crviz Practice Act 381

with him as defendants in his place. In either case, the appli-
cation is made in the same manner and is subject to the same

provisions as if made as prescribed in section [1421] seven hun-
dred and thirteen of this act.

[Code § 1425. Omitted by Board as covered by its proposed rule 220.] |

§ 718. Effect of order substituting indemnitors. An order
made as prescribed in the last five sections does not affect the
merits of the cause of action or of the defense, except so far as
it limits the controversy to particular property. But if the
substituted or remaining defendants recover judgment, they are
entitled to single costs only. If the action is discontinued,
or the complaint dismissed, a new action may be brought as if
the former action had not been brought.

[Code § 1426. First sentence omitted by Board as covered by its pro-
posed rule 220. See Board’s proposed Costs, Fees, Disbursements and Interest
Law for second sentence and proposed Personal Property Law, § 79-d for
last sentence. ]

§ 719. Notice by officer to whom indemnity is given. Where
an action is brought in a case where one or more persons are
entitled to make an application for an order of substitution, or
where one or more persons are liable to be substituted as defend-
ants, as prescribed in section [one thousand four hundred and
twenty-one] seven hundred and thirteen of this act, the officer
to whom the instrument or instruments of indemnity was given
cannot maintain-an action thereupon against a person entitled
to make, but who has not made, such an application, or who is
liable to be but has not been substituted as a defendant, unless
notice of the commencement of the action against the officer or the
person acting by his command or in his aid is given before the
trial thereof, or at least ten days before judgment by default is
taken therein either to attorney or several attorneys whose name
is or. several names are subscribed to the execution or several
executions or warrants of attachment or several warrants of
attachment, or personally to the judgment creditor or creditors,
or the plaintiff or several plaintifis in the action in which the war-
rant of attachment was or several warrants of attachment were
issued, or to one of the persons who executed the instrument or
instruments of indemnity.

[Code § 1427. See Board’s proposed Civil Rights Law, § 92, covering entire
section. ]
382 Revort or Jornt Leatstattve ComMItTEE

§ 720. Sale of personal property under execution. Per-
sonal property must be offered for sale in such lots and par-
cels as are calculated to bring the highest price. Except where
the officer is expressly authorized by this article to sell property
not in his possession, personal property shall not be offered for
sale unless it is present and within the view of those attending
the sale.

[Code § 1428, See Board’s proposed Personal Property Law, § 73,
identical.

§ 721. Notices of sale of personal property. At least
six days previous notice of the time and place of a sale of per-
sonal property by virtue of an execution must be given by post-
ing conspicuously written or printed notices thereof in at least
three public places of the town or city where the sale is made.
Where perishable property has been levied upon by virtue of an

execution, the court [may], upon the application of the officer
making the levy, [by order,] may direct, by order, the sale
thereof at such a time and upon such a notice as it deems proper,
and thereupon the property must be sold accordingly.

[Code § 1429. See Board’s. proposed Personal Property Law, § 72, identical.]

SALE AND EXEMPTION OF REAL PROPERTY

§ 722. “Real property ” includes certain “leasehold prop=
erty.” The [expression]: term “real property” as used in
[this and] the succeeding sections of this article includes lease-
hold property, where the lessee or his assignee is possessed at the
time of the sale of at least five years unexpired term of the
lease, and also of the building or buildings, if any, erected there-
upon.

[Code § 1430. ‘See Board’s proposed Real Property Law, § 650, identical.]

§ 723. Levy upon real property held in trust. Real prop-
erty held by one person in trust or for the use of another is
liable to levy and sale by virtue of an execution issued upon
a judgment recovered against the person to whose use it is so
held, in a case where it is prescribed by law that, by reason of
the ‘invalidity of the trust, an estate vests in the beneficiary,
but special provision is not otherwise made by law for the mode
of subjecting it to his debts.

[Code § 1431. See Board’s proposed Real Property Law, § 651, identical. j
Civizr Practice Act 383

§ 724. Sale of equity of redemption in mortgaged prop=-
erty. The judgment debtor’s equity of redemption in real
property mortgaged shall not be sold by virtue of an execution
issued upon a judgment recovered for the mortgage debt, or any
part thereof.

[Code § 1432. See Board’s proposed Real Property Law, § 652, identical.]

§ 725. Direction endorsed on execution regarding mort-
gaged property. Where an execution against property is
issued upon a judgment, specified in the last section, to the
county where the mortgaged property is situated, the attorney,
or other person who subscribes it, must indorse thereupon a direc-
tion to the sheriff not to levy it upon the mortgaged property,
or any part thereof. The direction must briefly describe the
mortgaged property and refer to the book and page where the
mortgage is recorded. If the execution is not collected out of the
other property of the judgment debtor, the sheriff must return it
wholly or partly unsatisfied, as the case requires.

[Code § 1433. See Board’s proposed Real Property Law, § 653, identical. ]

§ 726. Notice of sale of real property. The sheriff who
sells real property by virtue of an execution must previously
give public notice of the time and place of the sale, as follows:

1. A written or printed notice thereof must be conspicuously
fastened up at least forty-two days before the sale, in three

public places in the town or city where the sale is to take place,
‘and also in three public places in the town or city where the
property is situated, if the sale is to take place in another town
or city.

2. A copy of the notice must be published at least once in each
of the six weeks immediately preceding the sale, in a newspaper
published in the county, or published in an incorporated village,
a part of which is within the county, if there is a newspaper
published in such county or village, or, if there is none, in the
newspaper. printed at Albany in which legal notices are required
to be published.

[Code § 1434. See Board’s Réal Property Law, § 654, identical.]

§ 727. Description of property in notice of sale. In each
notice specified in the last section, the real property to be
sold must be described with common certainty, by setting forth
384: Report or Jotnt Leeistative ComMITTEE

the name of the township or tract, and the number of the lot,

if there is any, or by some other appropriate description.. [The
validity of a sale is not affected by the fact, that the property sold
is part only of the property advertised to be sold.]

[Code § 1435. See Board’s proposed Real Property Law, § 658. The last’
sentence has. been transferred to the second section following.]... «

§ 728. Penalty for irregularity in sale. A sheriff who sells
real property by virtue of an execution without having given ;
notice thereof, as prescribed in the last two sections, or other-
wise than us peeoribed in this chapter, forfeits one thousand dol-
lars to the party injured, in addition to the damages which the
latter sustains thereby.

[Code § 1436. See Board’s proposed County. Law, § 1860, identical.]

§ 729. Manner of conducting sale. Where real property
offered for sale by virtue of :an execution consists of two or
more known lots, tracts or parcels, each lot, tract or parcel
must be separately exposed for sale. Ifa person who is the owner
of, or is entitled by law to redeem, a distinct parcel of the prop-
erty of any other description, requires that parcel to be exposed
for sale separately, the sheriff must expose it accordingly. No
more real ‘property ‘shall be exposed for sale than it appears to
be necessary to sell in order to satisfy the execution. The valid-
ty of asale rs not affected by the fact that the property sold,
is part only of the property advertised to be sold.

[Code § 1487. See Board’s proposed Real Property Law, § 660, identical, ;

except that in the above section the last sentence of § 1435 has been inserted.
See new matter at end of section.]

' § 730. Duplicate certificates of sale. The sheriff who sells
real property by virtue of an execution must make out,
subscribe, and acknowledge before an officer authorized to take
the acknowledgment of a deed, duplicate certificates of the sale,
containing:

1. The name of each purchaser and the time when the sale
was made.

2. A particular description of the property sold.

3. The price bid for each distinct parcel enamtaly ol

4, The whole consideration money paid. i

{Code § 1438. See Board’s proposed Real Property Law, § 661, identical.) :

4 ae
Civitn Practice Act - 885

- § 731. Delivery and recording of certificates of sale. The
sheriff [must], within ten days after the sale, must file one of the
duplicate certificates in the office of the clerk of the county and
deliver another to the. purchaser. If there are two or more pur-
chasers, a certificate must be delivered 'to each. The clerk must
immediately record the certificate in a book kept by him for that
purpose and must index the record to the name of the judgment
debtor. His fees for so doing must be paid by the sheriff as
part of the expenses of the wiles,

[Code § 1439. See Board’s proposed Real Property Law, § 662, identical.]

§ 732. Vesting of title to real property sold. The right
and title of the judgment debtor, or of a person holding under
him, or deriving title through him, to real property sold by
virtue of an execution is not divested by the sale, until the
expiration of the period within which it cam be redeemed, as
‘prescribed in this article, and the execution of the sheriff’s deed.
But if the property is not redeemed, and a deed is executed in
pursuance of the sale, the grantee in the deed is deemed to have
been vested with the legal estate from the time of the sale. [And
if the title of such grantee or his assigns is adjudged for any
reason or cause whatsoever to be null and void in any action for
that purpose brought-by the judgment debtor or his assigns, sich
judgment shall hare no force or effect unless within.twenty days
after the entry of such judgment, the plaintiff shall pay to such
grantee or his assigns the sum of money which was paid upon
the sale with interest from the time of the sale as prescribed in
this article, including the costs and expenses of said defendant
in defending this action in which such judgment was recovered,
to be adjusted by a judge of the court in which said action ‘is
brought, and..in the event.of. plaintiff’s failure to pay such pur-
chase money and expenses within the time aforesaid, said title
shall: be valid in said grantee, and in case such judgment has
heretofore. been recovered, and an appeal has been taken therefrom
which.is now pending, and such judgment shall be affirmed on
final appeal, the same shall have no force or effect unless within
twenty days after the entry of judgment or affirmance, the plain-
tiff shall pay. to such grantee or his assigns the sum of money
which was paid upon the sale, with interest as aforesaid, includ-
ing the costs and expenses of the defendant as aforesaid, in
prosecuting any appeal from such judgment, and in the event of

13
386 Revorr or Jorvr Leoisiuative ComMiTrer

plaintiff’s failure so to do, said title shall be valid in said
grantee. ]

{Code § 1440. See Board’s proposed Real Property Law, § 663, identical
with the provisions as here given: The bracketed portion was added by Laws
1881, ch. 618. It has been omitted because it was held by the Court of
Appeals to be unconstitutional in Gilman v. Tucker, 128 N. Y. 190, for the
reason that it deprives the owner of his property without due process of
law. The court further stated the provision to be unnecessary, existing
provisions being sufficient. }

§ 733. Rights of holder of property during intermediate
period. The person entitled to the possession of real property sold
by virtue of an execution, as prescribed in the last section, may
use and enjoy the same, during the period therein specified, [use
and enjoy the same] as follows, without being chargeable with
committing waste:.

1. He may use and enjoy it in like manner and for the like
purposes as it was used and enjoyed before the sale, doing no
permanent injury to the freehold:

2. He may make necessary repairs to a building or other
erection thereupon. But this subdivision does not permit an
alteration in the form or structure of the building or other
erection.

38. He may use and unprove the land in the ordinary course
of husbandry, but he is not entitled to a crop growing thereon
at the expiration of the period of redemption.

4. He may apply any wood or timber on the land to the neces-
sary reparation of a fence, building or other erection which was
thereupon at the time of the sale.

5. If he actually occupies the land sold, he may take necessary
fire-wood therefrom for use in his household.

[Code § 1441. See Board’s Real Property Law, § 665, identical.]

§ 734. Order to prevent waste during redemption period.
If, at any time during the period allowed for redemption, the
judgment debtor or any other person in possession of the
property sold commits or threatens to commit or makes prep-
aration for committing waste thereupon, the supreme court, or
any justice thereof, within the judicial district, or the county
judge of the county in which the property or any. part thereof is
situated, [may] upon the application of the purchaser or his
assignee or the agent or attorney of either, and proof by affidavit
Crvin Practice Act 387

of the facts, may grant without notice an order restraining the
wrongdoer from committing waste upon the property.

[Code § 1442. See Board’s Real Property Law, § 584, identical.]

§ 735. Proceedings upon violation of waste order. If the
person against whom such an order is granted commits waste
in violation thereof after the service upon him of the order,
with a copy of the affidavit upon which it was granted, the court
or judge, upon proof by affidavit of the facts, may grant an
order requiring him to show cause at a time and place therein
specified why he should not be punished for a contempt.

[Code § 1443. See Board’s proposed Real Property Law, § 585, identical.]

§ 736. Punishment for violation of waste order. If,
upon the return of the order to show cause, it satisfactorily
appears that the person required to show cause has violated
the former order, the court or judge may either punish him, as
prescribed by law for the punishment of a contempt of a court
of record, other than a criminal contempt, or may grant a warrant
directed to the sheriff of the county, reciting the former order
and the violation thereof, and commanding the sheriff to commit
the wrong-doer to close confinement for a term specified therein,
not more than one year. A person thus committed cannot be
admitted to the liberties of the jail.

[Code § 1444. See Board’s proposed Real Property Law, § 586, identical.]

§ 737. Discharge of prisoner upon giving undertaking. The
warrant may be superseded and the prisoner discharged
by an order, in the discretion of the court or judge com-
mitting him, upon his executing, to the person who applied for
the warrant, an undertaking in a sum fixed, and with sureties
approved, by the court or judge, to the effect that he will pay
any judgment which the applicant or his assignee or other
representative may recover against him by reason of any waste
theretofore or thereafter committed on the property, and upon his
paying to the applicant for the costs and expenses of the pro-
ceeding a sum fixed by the court or judge.

[Code § 1445. See Board’s proposed Real Property Law, § 587, except

that the clause relating to “costs” was included by the Board in its pro-
posed Costs, Fees, Disbursements and Interest Law, § 184.]
388 Rerorr or Joint Lecistative Commrrrer

§ 738. Time and manner of redeeming real property.
Within one year after the sale of’ real property by virtue of an
execution, a person, specified in the next section, may redeem
[it] suck real property by paying to the purchaser, his execu-
tor, administrator or assignee, or to the sheriff who made the
sale, for the use of the person so, entitled thereto, the sum ot
money which was paid upon the sale with interest from the time
of the sale at the rate of ten per centum per annum [a year].

[Code § 1446. See proposed Real Property Law, § 666, identical.)

§ 739. By whom redemption may be made. The redemp-
tion, specified in the last section, may be made either by the
judgment debtor whose right and title were sold or by his heir,
devisee or grantee, who has acquired by inheritance, devise,
deed, sale, ie wich of a mortgage or of an execution, or by any
other. means, an absolute title to the property proposed to be
redeemed, or, in a case specified i in section [1458] seven hundred
and fifty or T1459] seven hundred and fifty-one of this act, to
a portion thereof.

[Code § 1447. See Board’s proposed Real Property Law, § 667, identical.]

§ 740. Effect of redemption upon sale. Upon payment
being made by a person entitled to redeem real property,
as prescribed in the last two sections, the sale of the property
redeemed, and the certificates of the sale, as far as they relate
thereto, become null and void.

[Code § 1448. See Board’s proposed Real Property Law, § 668, identieal.]

§ 741. Redemption by creditor. Real property sold by
virtue of an execution, which remains at the expiration of one
year aftér the sale unredeemed by the person or persous entitled
to redeem it, as prescribed in the last three sections, may be
redeemed within three months after the expiration of the year,
by the ereditors specified, and upon the terms and in the manner
prescribed in the following sections of this article.

[Code § 1449. See Board’s proposed Real Property Law, § 669, identical.]

§ 742, Payment and satisfaction upon redemption by cred-
itor. In a case specified in the last section, a creditor hav-
ing in his own name or as executor, administrator, assignee,
Civiz Practice Act 389

trustee or otherwise, a judgment rendered, or a mortgage duly
recorded, at any time before the expiration of fifteen months from
the time of the sale, which is a lien upon the real property sold,
may redeem that property by paying the sum of money which
was paid upon the sale thereof with interest at the rate of seven’
per centum [[a year] per annum from the time of the sale, and
executing a certificate of satisfaction, as prescribed in section
[1463] seven hundred and fifty-five of this act.

[Code § 1450. See Board’s proposed Real Property Law, § 670, identical.]

§ 743. Redemption by another creditor from a redeeming
creditor. Where a creditor has redeemed real property, as pre-
scribed in the last section, any other creditor who might have
redeemed it from the purchaser as therein prescribed may. re-
deem it from the first redeeming creditor, as follows:

1. He must reimburse to the first redeeming creditor, his
executor, administrator or assignee, the sum paid by him to
redeem the property with interest at the rate of seven per centum
[a year] per annum from the time of his redemption.

2. He must execute a certificate of satisfaction relating to his
judgment or mortgage in like manner as the first redeeming
creditor was required to do. |

3. If the judgment or mortgage, by virtue of which the first
ereditor redeemed is prior to the jadoment or mortgage of the sec-
ond creditor, the second creditor [must] also must pay to the first
creditor the sum specified in the certificate of satisfaction exe-
cuted by him upon his redemption, with inte zest at the rate of seven
per centum [a year,] per annum from the time of his redemp-
tion, unless the first redeeming creditor’s judgment or mortgage
has ceased, when he redeemed, to be a lien as against the second
redeeming creditor, in which case, the latter need not pay any
part of the sum specified in the certificate.

[Code § 1451. See Board’s proposed Real Property Law, § 671, identical.]

§ 744. Second redemption by first redeeming creditor.
Where the lien of the second redeeming creditor’s judg-
ment or mortgage is prior to that of the first redeeming
creditor’s judgment or mortgage, so that the former redeems
without paying the sum specified in the latter’s certificate of satis-
faction, the latter [may], without executing another certificate of

|
4
390 Repvorr or Jor Leaisiarive ComMitrEr

satisfaction, again may redeem from the former, or from any sub-
sequent redeeming creditor, in a case where he would have been
entitled to redeem if his first certificate had not been executed ;
and he has the same rights with respect to any creditor redeem-
ing from him as if his first certificate had been executed when
he made his second redemption.

[Code § 1452. See Board’s proposed Real Property Law, § 672, identical.]

§ 745. Subsequent redemptions by other creditors. A third
or other creditor who might have redeemed, as prescribed
in the last four sections, may redeem from the second or any other
creditor who has redeemed, in the manner and upon the terms
and conditions prescribed in the last two sections.

[Code § 1453. See Board’s proposed Real Property Law, § 673, identical.]

§ 746. Redemption by creditor after fifteen months. A
creditor who might have redeemed within fifteen months after
the sale, as prescribed in the last four sections, may redeem from
any other redeeming creditor although the fifteen months have
elapsed ; provided that he thus redeems within twenty-four hours
after the last previous redemption.

[Code § 1454. See Board’s proposed Real Property Law, § 674, identical.]

§ 747. Redemption in certain cases at sheriff’s office.
A redemption made by a creditor on or after the last day of the
fifteen months must be made at the sheriff’s office of the county.
The sheriff, or his under-sheriff, or a deputy-sheriff, in his behalf,
must attend at the sherifi’s office for that purpose on the last
day of the fifteen months, and on each day thereafter in which
a redemption can be made, during the time when the sheriff’s
office is required by law to be kept open. In the absence of the
sheriff, the redemption may be made by paying the necessary
money and delivering the necessary papers to the under-sheriff
or to any deputy-sheriff present at the sheriff’s office. If the
term of office of the sheriff who made the sale has expired, and
he, or his under-sheriff, or a deputy-sheriff authorized, in his
behalf, to receive the necessary money and the necessary papers,
is not present, the money may be paid and the papers may be
delivered to the sheriff then in office, or to the under-sheriff or a
deputy-sheriff of the latter.

[Code § 1455. See Board’s proposed Real Property Law, § 675, identical.]
Crvit, Practice Act 391

§ 748. Redemption by original purchaser when also a cred-
itor. If the purchaser at the execution sale of property
which can be redeemed by a creditor, as prescribed in this article,
is also a creditor of the judgment debtor, and as such could
redeem from a purchaser or a redeeming creditor, he may avail
himself of his judgment or mortgage to redeem from any other
redeeming creditor.

[Code § 1456. See Board’s proposed Real Property Law, § 676, identical.]

§ 749, Redemption by creditor under another judgment or
mortgage. The judgment creditor by virtue of whose execu-
tion real property has been sold cannot avail himself of the
judgment upon which the execution was issued to redeem the
property; nor, except as otherwise specially prescribed in this
article, can a creditor who has once redeemed avail himself of
the same judgment or mortgage to redeem again. But if either
has another judgment or mortgage which would entitle him to
redeem, he may avail himself thereof for that purpose in the
same manner and on the same terms as any other creditor.

[Code § 1457. See Board’s proposed Real Property Law, § 677, identical.]

§ 750. Redemption by person entitled to redeem part. Where
a person who has an absolute title to, or a judgment or
mortgage which is a lien upon, a distinct parcel only of
the real property sold by virtue of an execution would be au-
thorized by this article to redeem the property if his title or
lien extended to the whole, he may redeem from a purchaser the
entire property sold, or from a prior redeeming creditor the
entire property redeemed by that creditor; except that if his title
or lien extends to a distinct parcel only of one or more parts of
the property which were separately sold, he can redeem from a
purchaser only the part or parts thus separately sold in whick
his distinct parcel is included.

[Code § 1458. See Board’s proposed Real Property Law, § 678, identical. |

§ 751. Redemption by owners of undivided shares. Where
two or more persons own undivided shares, as joint tenants or as
-tenants in common, in real property sold by virtue of an execu-
tion, or in a distinct parcel thereof which has been separately
sold, each of them may redeem from the purchaser, as pre-
scribed in sections [1446 and 1447] seven hundred and tharty-
eight and seven hundred and thirty-nine of this act, the share
392 Reporr or Jom Lueisuative ComMIrree

or interest belonging to him, by paying a part of the pur-
chase-money bid for the property, or for that distinct parcel
thereof bearing the same proportion to the whole, as the share or
interest, proposed to be redeemed, bears to the property, or
distinct parcel separately sold, of which it is a part; together
with interest on the sum so paid from the time of the sale at
the rate of ten per centum [a year] per annum.

[Code § 1459. See Board’s proposed’Real Property Law, § 679, identical.]

§ 752. Redemption by: creditors having liens on undivided
shares. Where the judgment or mortgage of a creditor entitled
to redeem is a lien upon an undivided share, specified in the last
section, he may redeem from a purchaser that undivided share by
paying him the same proportion of the purchase-money which the
owner must have paid to redeem it, as prescribed in the last sec-
tion ; or he may redeem from a prior redeeming creditor the entire
property redeemed by the latter, with like effect and in the same
manner as if his lien attached to the whole.

[Code § 1460. See Board’s a. Real Eropenty Taw, § 680, g Mean: ]
haa eee = ) a |

§ 753. ne ea to tedbent not affected by igteeinent. The
sheriff, the purchaser, the judgment creditor or a redeeming credi-
tor, Ccannot, ] by his agreement or other act, [in'any manner]
cannot impair or prejudice in any manner the right of any other
person to redeem, as prescribed in this article.

{Code § 1461. See Board’s proposed Real Property Law, § 681, identical }

§ 754. Persons to whom payment of money may be
made upon redemption. The money required to be paid by
a creditor in order to effect a redemption of real property, as
prescribed: in this article. may be paid to the purchaser or
creditor from whom the property is to be redeemed, his executor,
administrator or assignee; or it may be paid, Foy the use of
the person so entitled thereto, to the sheriff who made the sale.

[Code § 1462. See Board’s proposed Real Property Law, § 682, identical.]J

§ 755. Certificate of satisfaction and clerk’s duties. The
certificate of satisfaction required to be executed by a creditor
in order to effect a redemption of real property must be acknowl-
edged or proved, and certified, in like manner as a deed to be
Civit Practice Act 393

recorded in the county; must describe with reasonable certainty
the judgment or mortgage under which he redeems and specify the
sum due thereupon; and must state that the redemption satisfies
the judgment or mortgage in full, or to a specified amount. It
must be filed in the county dlerk’s office at or before the time
when the money is paid to effect the redemption, unless the money
is paid to the sheriff; in which case, the certificate must also be
delivered, at the tine of the payment, to the sheriff, who must
file it in the county clerk’s office, as prescribed in section [1467]
seven hundred and fifty-nine of this act. The county clerk, imme-
diately after the execution and recording of the deed, must enter,
in his docket, the satisfaction or partial satisfaction of a judg-
ment specified in a certificate so filed, as required by law when a
judgment is collected by virtue of an execution. If a mortgage
specified in the certificate is recorded in his office, he must cancel
and discharge the mortgage of record, if it is satisfied by the
certificate; or, if it is only partially satisfied, he must make a
minute of the partial satisfaction upon the record thereof. If
the property mortgaged is situated in a county in which there is
a register, the county clerk must transmit a certified copy of the
certificate to the register, who [must], in like manner, must
cancel and discharge the mortgage of record, or make a minute of
the partial satisfaction thereof. The clerk’s and register’s fees
for performing the service specified i in this section must be paid
by the sheriff, who may require the person entitled to a deed to pay
him:the amount thereof before the deed is delivered.

[Code § 1463. See Board’s proposed Real Property Law, § 683, identical.]

‘ § 756. Evidence to be provided by redeeming judgment
creditor. In order to entitle a creditor by judgment to redeem
real property, as prescribed in this article, he must[, when he
redeems,]} file in the county clerk’s office when he redeems, or
deliver to the sheriff, as the case requires, the following evidence
of his right:
1. A copy of the docket of the judgment under which he claims
the right to.redeem, duly certified by the county clerk
9. Each assignment of the judgment which is necessary to
establish his right. An assignment so filed or delivered must oe
acknowledged or proved, and certified, in lke manner as a
deed to be recorded,, or the execution thereof must be proved by
the affidavit of the creditor, or of a witness thereto; unless it has
394 Reporr or Jormvr Lueistarive CoMMITTEE

been duly filed and entered[[, as prescribed in article third of title
first of chapter eleventh of this act]] in the office of the clerk an
which the judgment is entered, in which case, a certified copy
thereof must be filed or delivered.

8. An affidavit, made by him, or his attorney or agent, stating
truly the sum remaining unpaid on the judgment at the time
of claiming tlie right to redeem.

[Code § 1464. See Board’s proposed Real Property Law, § 684, practically
idenitical.]

§ 757. Evidence to be furnished by redeeming mort-
gage creditor. In order to entitle a creditor by mortgage to
redeem real property, as prescribed in this article, he must[[, when
he redeems] file in the county clerk’s office, or deliver to the sher-
iff, when he redeems, the following evidence of his right:

1. A copy of the mortgage under which he claims the right
to redeem, duly certified by the clerk or register of the county.

2. Each assignment of the mortgage which is necessary to
cstnblich his right, acknowledged or proved, and certified, as
prescribed in the last section for an assignment of a judgment.
unless it has been recorded; in which case a certified copy of the
record must be filed or delivered.

3. An affidavit made by him, or by his attorney or agent, stat-
ing truly the sum remaining unpaid on the mortgage at the
time of claiming the right to redeem.

[Code § 1465. See Board’s proposed Real Property Law, § 685, identical.]

§ 758. Evidence to be furnished by redeeming exec-
utor or administrator. In either of the cases specified in
the last two sections, if the person proposing to redeem claims
to be entitled so to do by reason of his being an executor or
administrator of a person who, if living, would be entitled to
redeem, he must file or deliver with the other papers therein
prescribed a certified copy or a sworn copy of his letters testa-
mentary or letters of administration.

[Code § 1466. See Board’s proposed Real Property Law, § 686, identical.]

-§ 759, Sheriff's duties as to papers delivered to him.
The sheriff to whom one or more papers, specified in the last
four sections, are delivered, must keep them open at all reason-
able times during the period allowed for redemption, to the
Civin Pracrick Act 895

inspection of all persons interested. He must have all those
papers at the sheriff’s office at the times when he is required to
attend thereat, for the purpose of enabling creditors to redeem,
as prescribed by law; and he must file them in the county clerk’s
office within three days after the execution of the deed.

[Code § 1467. See Board’s proposed Real Property Law, § 657, identical.]

§ 760. Completion and effect of redemption. A redemp-
tion by a creditor is effected only when he has paid all the money
required to be paid and filed or delivered all the papers required
to be filed or delivered, as prescribed in this article, and a waiver
of any of those requirements is void as against a person who is
entitled subsequently to redeem. Where a redemption is thus
effected, it vests in the redeeming creditor all the right, title and
interest which the purchaser acquired by the sale.

[Code § 1468. See Board’s proposed Real Property Law, § 688, identical.]

§ 761. Certificate of redemption, delivery and recording.
Where a redemption is made as prescribed in this article, the
officer or other person to whom money is paid or a paper is
delivered for the purpose of effecting the redemption must execute
and deliver to the person paying the money or delivering the
paper a certificate, stating all the facts which transpired before
him with respect to the redemption. Such a certificate may be
acknowledged or proved and certified in like manner as a deed to be
recorded in the county where the property is situated. The
recording thereof, in the office of the clerk or register of that
county, in the book for recording deeds, has the same effect as
against subsequent purchasers and incumbrancers as the recording
of a conveyance.

[First sentence is Code § 1469. Last two sentences are Code § 1470.
See Board’s proposed Real Property Law, §§ 689, 690, identical.]

§ 762. Conveyance by sheriff after fifteen months. Im-
mediately after the expiration of fifteen months from the time
of the sale, except where a redemption has been made on the
last day of the fifteen months, and, in that case, immediately after
the expiration of twenty-four hours from the last redemption,
the sheriff who made the sale must execute the proper deed or
deeds in order to convey to the person or persons entitled thereto
the part or parts of the property sold which have not been
396 Revorr or Joint Leaispvative Comamirrer

redeemed by the judgment debtor, his heir, devisee or assignee.
The deed conveys to the grantee therein the right, title and
interest which were sold by the sheriff. After the same shall
have been recorded for twenty years in the county where the real
estate is situated, it shall be presumptive evidence of the facts
therein stated.

[Code § 1471. See Board’s proposed Real Property Law, § 691, identical

with first two sentences. See Board’s proposed Evidence Law, § 26, for last
‘sentence. ] |

§ 763. Parties entitled to receive conveyance. If any
part of the property remains unredeemed by a creditor, it must
be conveyed by the sheriff to the purchaser upon the sale, except
where the certificate of sale has been assigned, in which case,
it must be conveyed to the last assignee. Any part or parts of
the property sold which haye been redeemed by a creditor must
be conveyed by the sheriff to the last redeeming creditor, except
where he has assigned the certificate of redemption or has executed
any other assignment of his right, title and interest in the property
redeemed by him, in which case, it must be conveyed to the last
assignee. .

[Code § 1472. See Board’s proposed Real Property Law, § 692, identical.]

§ 764. Conveyance to executor or administrator; and effect.
Whete. a person entitled to a deed dies before the delivery of
the deed, the sheriff must execute and deliver the deed to his
executor or administrator. The property so conveyed must be
held in trust for the use of the heirs or devisees of the decedent,
subject to the dower of his widow, if there is one; but it may
be sold in a proper case, for the payment of his debts, in the
same manner as land whereof he dies seized.

[Code § 1473. See Board’s proposed Evidence Law, § 693, identical,]

§ 765. Acknowledgment and filing of assignment. Before
-an assignee or his executor or administrator is entitled to
a' deed, as prescribed in the last two sections, each assignment
under which the deed is claimed must be acknowledged or proved,
and certified, in like manner as a deed to be recorded in the
county where the property is situated, and must be filed in the
office of the clerk of that county.

[Code § 1474. See Board’s proposed Evidence Law, § 694, identical.]
Civit Pracricr Act 397

_§ 766. Under sheriff or successor to act, if sheriff dies.
Where a sheriff dies, is removed from office, or becomes other-
wise disqualified to act, at any time after making a sale of real
property by virtue of an execution, the property, or a distinct
parcel thereof, may be redeemed by paying the necessary money
and delivering the necessary papers to his under sheriff, who must
also execute and deliver the proper deed or deeds of property
not redeemed by the judgment debtor, his heir, devisee or grantee.
If the under-sheriff also dies, is removed from office or becomes
otherwise disqualified to act, the property may be redeemed by
paying the necessary money and delivering the necessary papers
to the sheriff’s suecessor in office, who [must] also must
execute and deliver the proper deed or deeds. The under
sheriff, or the sheriff’s successor, as the case requires, possesses
all the powers, and is subject to all the duties and labilities,
of the sheriff who made the sale, touching the redemption and
conveyance of property sold and the proceedings relating thereto;
and each provision of law regulating those proceedings, and
applicable to the sheriff who made the sale, is applicable to his
under sheriff or successor. [This section applies where a sale
was made, either before or after this act takes effect.]

[Code § 1475. Last sentence omitted as temporary and obsolete. See

Board’s proposed Real Property Law, § 695, which contained the entire
section. ]

§ 767. Delivery of papers or payment after sale by under
sheriff or deputy. Where real property is sold by virtue
of an execution by the under sheriff or a deputy sheriff, in
behalf of the sheriff, money required to be paid, or a paper
required to be delivered, to the sheriff, in order to effect a redemp-
tion, as prescribed in this article, at any time before the last day
of the fifteen months from the time of the sale, may be paid
or delivered either to the sheriff. or to the under sheriff or deputy
sheriff, who made the sale.

[Code § 1476. See Board’s proposed Real Property Law, § 696, identical.]

§ 768. Sale by persons specially appointed. Where real
property is sold by virtue of an execution, by a person specially
appointed by the court, as prescribed in section [1362 or section
1388] six hundred and fifty or section six hundred and fifty-
three of this act, it may redeemed, as prescribed in this article,
as if it had been sold by the sheriff, except as follows:

.
398 Reporr or Jornt Leeistative ComMIrTEe

1. Money required to be paid, or a paper required to be
delivered, to the sheriff, in order to effect a redemption, as pre-
scribed in this article, at any time before the last day of the
fifteen months from the time of the sale, must be paid to the
officer who made the sale; unless the person entitled to redeem,
his agent or attorney, files with the clerk of the county, with the
paper or papers required to be filed, or to be delivered to the
sheriff, for the purpose of effecting the redemption, his affidavit
to the effect that the officer is dead or has been removed; or,
where he is a coroner, that he is no longer in office; or that after
diligent search, the affiant has been unable to find him within the
county; in which case, the money may be paid into court by
paying it to the county treasurer to the credit of the cause, with
like effect as where it is paid to the sheriff after a sale by the
latter.

2. The provisions of section [1455] seven hundred and forty-
seven of this act, apply to a redemption upon a sale made as pre-
scribed in this section; and the officer who sold the property must
attend as the sheriff is therein required to attend. If he is not
present, the redemption may be effected, as prescribed in that
section, for redemption in a case where the term of office of the
sheriff who made the sale has expired.

[Code § 1477. See Board’s proposed Real Property Law, § 697, identical.]

§ 769. Appointment by court of person to execute
deed. If, when the period for redemption expires, a coroner, or
a person specially appointed by the court, who has sold real
property by virtue of an execution, is dead, or has been removed,
or, in the case of a coroner, if he is no longer in office, the court
[must], upon the application of a person entitled to a deed, must
appoint a person to execute the deed accordingly.

[Code § 1478. See Board’s proposed Real Property Law, § 698, identical.]

§ 770. Recovery of purchase money by evicted purchaser.
The purchaser of real property sold by virtue of an execution,
his heir, devisee, grantee or assignee, who is evicted from the
possession thereof, or against whom judgment is rendered in
an action to recover the same, may recover the purchasé money,
with interest, from the person for whose benefit the property was
sold, where the judgment was rendered or the eviction occurred
in consequence either
Orvitn Praotice Act 399

1, Of any irregularity in the proceedings concerning the sale,
or
2. Of the judgment upon which the execution was issued

being vacated or reversed or set aside for irregularity or error
in fact.

[Code § 1479. See Board’s proposed Real Property Law, § 749, identical.]

§ 771. Remedy of judgment creditor after recovery of
purchase money. Where final judgment is rendered against
the defendant, in an action specified in subdivision first of the
last section, the judgment by virtue of which the sale was made
remains, in his favor, valid and effectual against the judgment
debtor therein, his executor, administrator, heir or devisee, for
the purpose of collecting the sum paid on the sale, with interest.
He may [accordingly] have a further execution upon that judg-
ment, but the execution does not affect a purchaser in good faith
or an incumbrancer by mortgage, judgment or atheie ice, whose
title or whose incumbrance agced before the actual levy thereof.

[Code § 1480. See Board’s proposed Real Property Law, § 749, for first
sentence, identical. Last sentence covered the last sentence in its proposed
rule 379. Word “ accordingly ” omitted as unnecessary.]

§ 772. Contribution between owners of real property.
Where the real property of two or more persons is liable to satisfy
a judgment, and the whole of the judgment, or more than a
due proportion thereof, has been collected by a sale of the real
property of one or more of them by virtue of an execution issued
upon the judgment, the person so aggrieved, or his executor or
administrator, may maintain an action to compel a just and
equal contribution by all the persons whose real property ought
to contribute as prescribed in the next section but one.

[Code § 1481. See Board’s proposed Real Property Law, § 722, identical.]

§ 773. Contribution when part owner redeems. Where
the heir, devisee or grantee of a judgment debtor, having an abso-
lute title to a distinct parcel of real property sold by virtue of an

‘execution, redeems as prescribed in section [1458] seven hundred
and fifty of this act, the property sold, or any part or parts
thereof separately sold, which include his property, he may[, in
‘like manner, ] maintain an action in like manner to compel a just
400 Revorr or Jornr Legistacive ComMirrer

and equal contribution by those who own the residue of the prop-
erty thus redeemed.

[Code § 1482, ‘See Board’s propor Real Property Law, § 723, Amenities

§ 774. Order of contribution. Where an action is adie
as prescribed in the last two sections, the real property is liable
to contribution in the following crder:

1. If it comprises different undivided shares or distinct par-
cels which have been conveyed by the judgment debtor, they are
liable in succession, commencing with the portion last conveyed.

2. If it comprises different unaided shares or distinct parcels
which have been sold by virtue of two or more executions, they
are liable in succession, commencing with the portion sold under
the last and youngest jadgment.

_ 8. If it comprises different undivided shares or distinct par-
eels, some of which have. been conveyed by the judgment debtor
and some of which have been sold by virtue of one or more execu-
tions, they. are respectively liable in succession, according to the
order prescribed in the first and Becond subdivisions of this sec-
tion. : !

[Code § 1483. See Board’s proposed Real Property Law, § 724, identical.]

§ 775. Enforcement of contribution by means of original
judgment. For the purpose of enforcing contribution, as pre-
scribed in the last section, the court in which the action is
-brought. may, and in a proper case must, permit the plaintiff
to use the original judgment, and to collect, by an execution
_ issued thereupon, out of any real property sublet to the lien
. thereof, the,sum which ought to be contributed by that property.
_For that. purpose, the Gen of the original judgment, upon that
real property, when preserved, as presevibed in the next section.
continues for the term prescribed in sections [1251 and 1255]
‘five hundred and twenty-five, five hundred and twenty-six and five
hundred and thirty of this act to the extent of the sum which ought
“to-be so contributed, notwithstanding the payment made by the
party seeking contribution.

: [Code § 1484. First sentence omitted hy ‘Board as covered by its proposed
rule’380. ‘See Board’s ‘proposed Real Property Law, § 725, covering last
‘igentence in identical ae ‘

:
lhgy

ring ei Raquisites to Bienen of lien of original judg-
ment. The lien of the original judgment may be preserved,
Civitn Practicr Act 401

as prescribed in the last section, by filing in the clerk’s office
of the county where the real property is situated, within twenty
days after the payment for which contribution is claimed, an
affidavit in behalf of the person aggrieved, stating the sum
paid and his claim to use the judgment for the- reimbursement
thereof, with a notice requiring the clerk to make the entries
specified in the next section. Rut the lien is not preserved as
against a grantee or mortgagee in good faith, for a valuable
consideration, without notice, and before the entries are actually
made.

[Code § 1485. See Board’s proposed Real Property Law, § 726, identical.]

§ 777. Clerk’s entries in preserving lien of original
judgment. On filing the affidavit and notice, the clerk must
make upon the docket of the judgment an entry stating the sum
paid and that the judgment is claimed to be a lien to that
amount. Where it is desired to preserve the lien upon property
situated in two or more counties, a similar affidavit and notice
must be filed with, and a similar onlay anes by the. ce of
each county.

[Code § 1486. See Board’s proposed Real Property Law, § 726, identical.)

ARTICLE 45
EXECUTIONS AGAINST THE PERSON

Section 778. Issuance of executiun against the.person, generally.

779. Execution against the person of a woman.

780. Execution against property issued first in. certain
cases.

“781. Simultanéous éxecutions against person and’ prop-
erty prohibited.

782. Second execution prohibited when debtor in custody.

783. New execution after escape of debtor.

784. New execution against property when debtor dies
in custody.

785. Discharge of debtor after thirty days and new
execution thereupon.

786. New execution not to be enforced against certain

real property. . -
402 Report or Jornt Legistative CoMMItTEE

§ 778. Issuance of execution against the person gen-
erally. Where a judgment can be enforced by execution, as pre-
scribed in section [1240] five hundred and nineteen of this act, an
execution against the person of the judgment debtor may be issued
thereupon, subject to the exception specified in the next section, in
either of the following cases:

1. Where the plaintiff’s right to arrest the defendant depends
upon the nature of the action.

2. In any other case, where an order of arrest has been granted
and executed in the action, and, if it was executed against the
judgment debtor, where it has not been vacated.

[Code § 1487. See Board’s proposed Civil Rights Law, § 114.]

§ 779. Execution against the person of a woman. [But a]
An execution cannot be issued against the person of a woman
unless an order of arrest has been granted and executed in the
action, and, if it was executed against the judgment debtor, has
not been vacated.

[Code § 1488. See Board’s proposed Civil Rights Law, § 116.]

§ 780. Execution against property issued first in cer-
tain cases. Unless the judgment debtor is actually confined,
without having been admitted to the liberties of the jail, by
virtue of an execution against his person issued in another action,
or of an order of arrest or a surrender by his bail in the same
action, an execution against his person cannot be issued until
an execution against his property has been returned wholly or
partly unsatisfied. If he is a resident of the state, the execution
against his property must have been issued to the county where
he resides.

[Code § 1489. See Board’s proposed Civil Rights Law, § 117.]

§ 781. Simultaneous executions against property and per-
son prohibited. An execution against the person of the judg-
ment debtor cannot be issued without leave of the court while
an execution against his property, issued in the same action,
remains unreturned; and an execution against his property can-
not be issued without leave of the court while an execution
against his person, issued in the same action, remains unreturned.

[Code § 1490. Omitted by Board as covered by its proposed rule 380.]
Civin Practice Act 4.03

§ 782. Second execution prohibited when debtor in cus-
tody. Where a judgment debtor has been taken, and remains
in custody, by virtue of an execution against his person, another
execution cannot be issued in the same action against his person
or his property, except in a case specially prescribed by law.

[Code § 1491. Omitted by Board as covered by its proposed rule 380.]

§ 783. New execution after escape of debtor. 1. If a
judgment debtor escapes after having been taken by virtue of
an execution against his person, he may be retaken by virtue of
a new execution against his person; or an execution against his
property may be issued as if the execution by virtue of which
he was taken had been returned without his having been taken.

2. If a prisoner im custody by virtue of an execution actually
escapes while going to, remaining at or returning from a hos-
pital to which he has been ordered removed pursuant to section
three hundred and fifty-five of the prison law, a new execution
may be issued against his person[[, if he was in custody by virtue
of an execution; or, if he was in custody by virtue of an order
of arrest, a new order of arrest may be granted, upon proof by
affidavit of the facts specified in this section, without other proof
and without an undertaking].

[First subdivision is Code § 1492. Second subdivision is Code § 127.

Last part of subdivision 2 relating to “arrest”? has been covered under that
subject elsewhere. See Board’s proposed Civil Rights Law, §§ 36 and 118.]

§ 784. New execution against property when debtor
dies in custody. Where a judgment debtor who has been taken
by virtue of an execution against his person dies while in custody,
a new execution against his property may be issued as if the
execution by virtue of which he was taken had been returned
without his having been taken.

[Code § 1493. Omitted by Board as covered by its proposed rule 380.]

§ 785. Discharge of debtor after thirty days and new
execution thereupon. At any time after a judgment debtor
has remained in custody by virtue of an execution against his
person, for the space of thirty days, the judgment creditor may
serve upon the sheriff a written notice requiring him to discharge
the judgment debtor from custody by virtue of the execution.
Whereupon the sheriff must discharge the judgment debtor and
404 Revorr or Joint Lucisnarive ComMITrEE

return the execution accordingly. After service of such a notice,
another execution against the person of the judgment debtor
cannot be issued upon the judgment; but after his discharge, the
judgment creditor may otherwise enforce the judgment as if
the execution from which he was discharged had been returned
without his having been taken.

TCode § 1494. See Board’s proposed Civil Rights Law, § 120, identical.1

§ 786. New execution not to be enforced against cer-
tain real property. A new execution against property, issued
in a case specified in the last two sections, cannot be enforced
against an interest in real property, including a chattel real,
wiih was purchased in good faith from the judgment debtor
after the recovery of the judgment upon which it is issued, or
which was sold by virtue of an execution issued upon a previous
or subsequent judgment.

[Code § 1495. See Board’s proposed Lien Law, § 198, identical.]

ARTICLE 46

PROCEEDINGS SUPPLEMENTARY TO
EXECUTION

Section 787. Remedies afforded by this article.
788. Nature of the remedies and review of orders.
789. In what cases judgment creditor may maintain pro-
ceeding.
790. Proceedings where judgment is against joint
" debtors.
791. Certain money or other property not affected.
792. Before whom proceeding instituted.
793. Order to examine debtor after return of execution.
794, Order to examine debtor before return of execution.
795. Warrant of arrest instead of order.
796. Warrant of arrest after order.
797. Vacating or reviewing warrant.
798. Undertaking by debtor after arrest.
- 799. Order to examine third person.
800. Examination before judge or referee.
801.

802.
803.
804.
805,
806.

807.
808.

809.
810.

811.
812..
818.
814.
815.

816.
817.
818.
819.
820.
821.
822.
823.
aes 824.
825.

826.
827.

Civin Practice Act 405

In what county attendance for examination may: be
compelled.

Order for reference at any time.

Oath of referee.

Proceedings upon examination and adjournments.

Privilege of party or witness upon examination.

Order permitting person indebted to pay debt to
sheriff.

Order requiring delivery of money or property to
sheriff or receiver.

Duty of sheriff to whom money or property de
livered.

Application of money or property.

Order affecting money or property where proceed-
ing discontinued or surplus remains.

Injunction restraining transfer or interference.

Mode of service of certain orders.

‘Service of warrant of arrest.

Punishment for disobedience of order.

Continuance of proceedings before another judge in
certain cases.

Discontinuance or dismissal of proceedings.

Costs to Judgment creditor.

Costs to judgment debtor.

Appointment of receiver.

Notice when other action or proceeding pending.

Extension of existing receivership.

Receiver must be resident of state.

Vesting of property in receiver.

Extension of receiver’s title to personal property.

Regulations affecting control of receiver and his
accounts.

Filing of receivership orders.

Duties of county clerk as to order.

§ 787. Remedies afforded by this article. This [title]
article provides for three distinct remedies, as follows:

1, An order made or a warrant issued against a judgment
debtor after return of an execution.

9. An order made or a warrant issued against a judgment
debtor after the issuing and before the return of an execution.
4.06 Rerorr or Joinr Lugistative ComMMITTEE

3. An order made after the issuing and either before or after
the return of an execution against the person who has property of
the judgment debtor or is indebted to him.

The proceedings under subdivision three [third] of this section
may. be pursued either alone or simultaneously with the proceed-
ings under subdivision one [first] or subdivision two [second].
The party to whom costs are awarded in a special proceeding shall
be entitled to the same remedies under this [title] article, under
the same circumstances, as near as may be, as a judgment creditor.
[And f]/or the purposes of this [title] article, the party to
whom such costs are awarded shall be deemed a judgment creditor
and the party against whom they are awarded shall be deemed a
judgment debtor.

[Code § 2432. This section was omitted by the Board as covered by its pro-
posed rule 338, relating to discovery in aid of execution.]

§ 788. Nature of the remedies and review of orders.
Each of those remedies is a special proceeding. But an order
made in the course thereof can be reviewed only as follows:

1. An order made by a judge out of court may be vacated or
modified by the judge who made it as if it was made in an action;
or it, or the order of the judge vacating or modifying it, may be
vacated or modified, upon motion, by the court out of which the
execution was issued.

2. Where the execution was issued out of a county court, an
appeal from an order made in the course of the proceeding may
be taken in like manner as if the order was made in an action
brought in the same court.

[Code § 2433.. Omitted by Board with reference to its proposed rules 42,
338 and 353.]

§ 789. In what cases judgment creditor may maintain
proceeding. In order to entitle a judgment-creditor to maintain
either of the special proceedings authorized by this article, the
judgment must have been rendered for a sum not less than twenty-
five dollars, upon the judgment debtor’s appearance or personal
service of the summons upon him, [for a sum not less than twenty-
five dollars] or substituted service of the summons upon him in ac-
cordance with section [four hundred and thirty-six of the code
of civil procedure] two hundred and thirty-one of this act; and
Civit Practice Acr 407

the execution must have been issued out of a court of record; and
either:

1, To the sheriff of the county where the judgment debtor
[has], at the time of the commencement of the special proceed-
ings, has a place for the regular transaction of business in per-
son; or,

2. If the judgment debtor is then a resident of the state, to the
sheriff of the county where he resides; or,

3. If he is not then a resident of the state, to the sheriff of the
county where the judgment-roll is filed, unless the execution was
issued out of a court other than that in which the judgment was
rendered, and, in that case, to the sheriff of the county where the
transcript of the judgment is filed.

(Code § 2458. Omitted by Board with reference to its proposed rule 388. ]

§ 790. Proceedings where judgment is against joint
debtors. When the execution was issued [as prescribed in section
nineteen hundred and thirty-four or section nineteen hundred and
forty-one of this act] in an action against one or more joint
debtors, a debt due to, or other personal property owned by, one or
more of the defendants not summoned, jointly with the defendants
summoned, or with any of them, may be reached by a special pro-
ceeding instituted as prescribed in this article and founded upon
the judgment.

[Code § 2461. See Board’s proposed Debtor and Creditor Law, § 1-ff,
practically identical.]

§ 791. Certain money or other property not affected.
This article does not authorize the seizure of, or other interference
with, any property which is expressly exempt by law from levy
and sale by virtue of an execution; or any money, thing in action
or other property held in trust for a judgment debtor, where the
trust has been created by, or the fund so held in trust has proceeded
from, a person other than the judgment debtor; or the earnings of
the judgment debtor for his personal services rendered within
sixty days next before the institution of the special proceeding,
when it is made to appear by his oath or otherwise that those
earnings are necessary for the use of a family wholly or partly
supported by his labor.

[Code § 2463. See Board’s proposed Debtor and Creditor Law, § l-gg,
practically identical.]
" é : , ey
408 Rerorr or Jou? Lecistative ComMmirrer

_ § 792, Before whom proceeding instituted. Either spe-
cial proceeding authorized by this article may be instituted be-
fore a judge of the court out of which, or the county judge, the
special county judge or the special surrogate, of the county to
which the execution was issued, or, where it was issued to the city
and county of New York, from a court other than the city court of
that city, before a justice of the supreme court for that city and
county. Where the execution was issued out of a court other than
the supreme court, and it is shown by affidavit that each of the
judges before whom the special proceedings might be instituted,
as prescribed by this section, is absent from the county, or for any
reason unable or disqualified to act, the special proceedings may
be instituted before a justice of the : supreme court. In that case,
if he does not reside within the judicial district embracing the
county to which the execution was issued, the order made or war-
rants issued by him must be returnable to a justice of the supreme
court residing in that district, or the county judge, or the special
judge, or special surrogate, or that of an adjoining county, as
directed in the order or warrant. Where the judgment upon which
the execution was issued was recovered in a municipal court of the
city of New York, either special proceeding shall be instituted
before a justice of the city court of the city of New York.

[Code § 2434. Omitted by Board with reference to its proposed rule
388.]

~§ 793. Order to examine debtor after return of execu
tion. At any time within ten years after the return, wholly or
partly unsatisfied, of an execution against property, issued upon
a judgment, as prescribed in section [2458] seven hundred and
eighty- nine of, this act, or, in case of an order, issued in the same
manner so far as the provisions of said section can be applied in
substance, the creditor under such judgment or order, upon proof
of the facts, by affidavit or other competent written evidence, is
entitled to an order requiring the debtor under the judgment or
order to attend and be examined concerning his property at a time
and place specified in the order.

[Code § 2435. Omitted by Board with reference to its proposed rule
388.]

794. Order to examine debtor before return of execution.
“At any time after the issuing of an examination against property,
as prescribed in section [2458] seven hundred and eighty-nine of
Orvin Practice Act: 409

this act, and before the return thereof, the judgment creditor, upon
proof by affidavit or other competent written evidence that the
judgment debtor has property which he unjustly refuses to apply
towards the satisfaction of the judgment, is entitled to an order
requiring the judgment debtor to attend and be examined concern-
ing his property at a time and place specified in the order.

[Code § 2436. Omitted by Board with reference to its proposed rule
388.]

§ 795. Warrant of arrest instead of order. Upon proof
entitling a judgment creditor to an order under either of the
last two sections, and also proof by affidavit to the satisfaction
of the judge that there is danger that the judgment debtor will
leave the state or conceal himself, and that there is reason to
believe that he has property which he unjustly refuses to apply to
the payment of the judgment, the judge [may], instead of making
an order, may issue a warrant under his hand, reciting the facta
and requiring the sheriff of any county where the judgment debtor
may he found to arrest him and bring him before fhe, same judge,
or before another judge if the case is one’ where the warrant mtist
be returnable to another judge.

[Code - § 2437. See Board’s proposed Debtor and Creditor, Law, identical,
except adapted to discovery order.]

§ 796. Warrant of arrest after order.” Where the facts
specified in the last section are made to appear, as therein
stated, at anv time after the making of an order requiring the
judgment debtor to attend and be euaniined. and before the close
of his examination, the judge may issue a warrant as therein pre
scribed; and, if necessary, may direct the adjournment, or, if the
return dey of the order has elapsed, the continuance of the pro-
ceedings under the order until after the return of the warrant and
his decision thereupon.

[Code § 2438. See Board’s proposed Debtor and Creditor Law, § l-aa,
practically identical.]: :

_ § 797, Vacating or reviewing warrant. A warrant issued
as prescribed in the last two sections may be yacated or modified
as prescribed in section [2433] seven hundred and eighty-cight
of this act, with respect to an order. :

[Code § 2439, Omitted by Board with neierenge te its proposed rule 42.)
410 Repvort or Jornt Lugistative ‘ComMITTEB

§ 798. Undertaking by debtor after arrest. Where a judg-
ment debtor has been arrested and brought before a judge by
virtue of a warrant issued as prescribed in this article, and it
appears to the satisfaction of the judge, from his examination or
other proof, that there is danger that he will leave the state or con-
ceal himself, and that he has property which he has unjustly
refused to apply to the satisfaction of the judgment, the judge may
make an order requiring him to give an undertaking, with one or
more sureties, in a sum fixed and within a time specified in the
order, to the effect that [he will], from time to time, as the judge
directs, he will attend before the judge, or before a referee ap-
pointed or to be appointed in the proceedings, and that [he will
not], until discharged from arrest by virtue of the warrant, he
will not dispose of any of his property which is not exempted
from seizure by section [2463] seven hundred and ninety-one of
this act. If he fails to comply with the order, the judge [must
forthwith], by warrant, forthwith must commit him to prison,
there to remain until the close of the examination or the giving of
the required undertaking; except that the judge may direct
the sheriff to produce him, from time to time, as required in the
course of the proceedings.

[Code § 2440. See Board’s proposed Debtor and Creditor Law, § I-bb,
practically identical.]

§ 799. Order to examine third person. Upon proof by affidavit
or other competent written evidence, to the satisfaction of the
judge, that an execution against property has been issued as pre-
scribed in section [2458] seven hundred and eighty-nine of this
act, and either that it has been returned wholly or partly unsatisfied
or that it has not been returned; and also that any person or corpo-
ration has personal property of the judgment debtor exceeding ten
dollars in value, or is indebted to him in a sum exceeding ten dol-
lars; the judgment creditor is entitled to an order requiring that
person or corporation to attend and be examined concerning the
debt or other property at a time und place specified in the order.
The judge [may], in his discretion, may require notice of the
subsequent proceedings to be given to the judgment debtor in such
a manner as he deems just. But 4 receiver shall not be appointed
without such a notice, except as otherwise prescribed [in article
second of this title] by law.

[Code § 2441. Omitted by Board with reference to its proposed rule 388.]
Crvitn Practicr Act 411

§ 800. Examination before judge or referee. An order
requiring a person to attend and be examined, made pursuant
to any provision of this article, must require him so to attend
and be examined either before ‘the judge to whom the order is
returnable or before a referee designated therein. Where the
examination is taken before a referee, he must certify to the judge

to whom the order is returnable all the evidence and the other
proceedings taken before him.

[Code § 2442. Omitted by Board with reference to its proposed rule 388.]

§ 801. In what county attendance for examination may
be compelled. If the judgment debtor or other person, required
to attend and be examined, as prescribed in this article, or the
officer of a corporation required to attend in its behalf, is, at
the time of the service of the order upon him, a resident of the
state, or then has an office within the state for the regular trans-
action of business in person, he cannot be compelled to attend,
pursuant to the order or to any adjournment, at a place without
the county wherein his residence or place of business is situated.

[Code § 2459. Omitted by Board with reference to its proposed rule 388.]

§ 802. Order for reference at any time. At any stage
of the proceedings, the judge to whom the order is returnable
[may], in his discretion, may make an order directing that any
other examination or testimony be taken by, or that a question
arising be referred to, a referee «lesignated in the order. Where
a question is so referred, the referee may be directed to report
either the evidence or the facts.

[Code § 2443. Omitted by Board with reference to its proposed rule 388.]

§ 803. Oath of referee. Unless the parties expressly waive
the referee’s oath, a referee appointed as prescribed in this article,
[must,] before entering upon an examination or taking testi-
mony, must subscribe and take an oath that he will faithfully and
fairly discharge his duty upon the reference and make a just and
true report according to the best of his understanding. The oath
may be administered by an officer [designated in section 842 of
this act] authorized by law to administer an oath, and must be
returned to the judge with the report or testimony.

[Code § 2445. Omitted by Board as covered by its proposed rule 34.]
412 Revortr or Jormnr Legistative CoMMITrEE

§ 804. Proceedings upon examination and adjournments.
Upon an examination under this article, each answer of a party
or witness examined must be under oath. A corporation must
attend by, and answer under the oath of, an officer thereof, and the
judge [may], in his discretion, may specify the officer. Either
party may be examined as a witness in his own behalf, and may
produce and examine other witnesses, as upon the trial of an
action. The judge or referee may adjourn any proceedings under
this article from time to time as he thinks proper.

[Code § 2444. Omitted by Board with reference to its proposed rule 388.]

§ 805. Privilege of party or witness upon examination.
A party or a witness examined in a special proceeding, author-
ized ‘by this article, is not excused from answering a ques-
tion on the ground that his examination will tend to convict him
of the commission of a fraud; or to prove that he has been a party
or privy to, or knowing of, a conveyance, assignment, transfer or
other disposition of property for any purpose; or that he or another
person claims tobe entitled, as against the judgment creditor or a
receiver appointed or to be appointed i in the special proceeding, to
hold property derived from or through the judgment debtor, or to
be discharged from the payment of a debt which was due to the
judgment debtor or to a person in his behalf. But an answer can-
not be used as evidence against the person so answering in a
criminal action or criminal proceeding.

[Code § 2460. See Board’s proposed Evidence Law, § 91, practically
identical.]

§ 806. Order permitting person indebted to pay debt
to sheriff. At any time after the commencement of a special
proceeding, authorized by this article, and before the appointment
of a receiver therein or the extension of a receivership thereto, the
judge by whom the order or warrant was granted or to whom it
is ‘returnable, [may, in his discretion, ] upon proof by affidavit to
his satisfaction that a person or corporation is indebted to the
judgment debtor, and upon such a notice given to such persons
as he deems just, or without notice, may make an order, in his
discretion, permitting the person or corporation to pay to a sheriff
designated i in the order a sum on account of the alleged indebted-
ness, not exceeding the sum which will satisfy the execution. A
payment. thus made is, to the extent thereof, a discharge of the
Crvit Pracrics Act 413

indebtedness, except as against a transferee from the judgment
debtor in good faith and for a valuable consideration, of whose
‘rights the person or corporation had actual or constructive notice
hor the payment was made.

[Code § 2446, See Board’s proposed Debtor and Creditor Law, § 1-cc, viwall
cally identical.]

§. 807. Order requiring delivery of money or property to
sheriff or receiver. Where it appears from the examination or
testimony taken in a special proceeding authorized by this article
that the judgment debtor has in his possession or under his
control money or other personal property belonging to him, or
that one or more articles of personal property capable of de
livery, his right to the. possession whereof is not substantially
disputed, are in the possession or under the control of another per-
son, the judge by whom the order or warrant was granted or to
whom it is returnable, [may,] in his discretion, and upon such a
notice given to such persons as he deems just, or without notice,
may make an order directing the judgment debtor or other person
immediately to- pay the money or deliver the articles of personal
property to a sheriff designated in the order, unless a receiver
has been appointed or a receivership has been extended to the
special proceeding, and in that case to the receiver.

[Code § 2447. See Board’s proposed rule 390 which is practically the same,
except that the language is adapted to the * discovery proceeding.”]

§ 808. Duty of sheriff to whom money or property
delivered. If the sheriff to whom money is paid or other prop-
erty is delivered, pursuant to an order made as prescribed in either
of the last two sections, does not then hold an execution upon the
judgment against the property of the judgment debtor, he has the
same rights and powers and is subject to the same duties and
liabilities with respect to the money or property as if the money
had been collected or the property ‘had been levied upon by him
by virtue of such an execution; except as otherwise prescribed in
the next section.

[Code § 2448. See Board’s proposed County Law, § 186-i, practically
identical.]

§ 809. Application of money or property. After a receiver
has been appointed, or a receivership has been extended to the
414 Rervorr or Jott Leersiative ComMitTEE

special proceeding, the judge [inust], by order, must direct the
sheriff to pay the money or the proceeds of the property, deducting
his fees, to the receiver; or, if the case so requires, to deliver to
the receiver the property in his hands. But if it appears to the
satisfaction of the judge that an order appointing a receiver or
extending a receivership is not necessary, he may direct the
sheriff, by an order reciting that fact, [direct the sheriff] to
apply the money so paid, or the proceeds of the property so de-
livered, upon an execution in favor of the judgment creditor
issued either before or after the payment or delivery to the sheriff ;
and a receiver appointed pursuant to the provisions of this article,
may lease, on leave of a judge having power to appoint such
receiver, [lease] the real property that shall come into his pos-
session, for such time as shall be necessary to realize moneys
sufficient to satisfy the judgment, with interest thereon and costs
of the special proceeding.

[Code § 2449. See Board’s proposed Debtor and Creditor Law, § 1-dd, practi-
cally identical.]

§ 810. Order affecting money or property where pro=
ceeding discontinued or surplus remains. Where money is paid,
or property is delivered, as prescribed in the last four sections, and
afterwards the special proceeding is discontinued or dismissed; or
the judgment is satisfied without resorting to that money or prop-
erty; or a balance of the money or of the proceeds of the property
or a part of the property remains in the sheriff’s or the receiver’s
hands, after satisfying the judgment and the costs and expenses
of the special proceeding; the judge must make an order directing
the sheriff or receiver to pay the money or deliver the property so
remaining in his hands to the judgment debtor or to such other
person as appears to be entitled thereto, upon payment of his fees
und all other sums legally chargeable against the same.

[Code § 2450. See Board’s proposed Debtor and Creditor Law, § 1-ee,
practically identical.]

§ 811. Injunction restraining transfer or interference. The
judge by whom the order or warrant was granted or to whom
it is returnable may make an injunction order restraining any
person or corporation, whether a party or not a party to the
special proceeding, from making or suffering any transfer or
Crvit Practicr Act 415

other disposition of, or interference with, the property of the
judgment debtor, or the property or debt concerning which any
person is required to attend and be examined, until further direc-
tion in the premises. Such an injunction order may be made
simultaneously with the order or warrant by which the special
proceeding is instituted, and upon the same papers; or afterwards,
upon an affidavit showing sufficient grounds therefor. The judge
or the court [may], as a condition of granting an application to
vacate or modify the injunction order, may require the applicant
to give security in such a sum and in such a manner as justice
requires.

[Code § 2451. See Board’s proposed rule 391, which is practically the
same. ]

§ 812. Mode of service of certain orders. An injunction
order, or an order requiring a person to attend and be examined,
made as prescribed in this article, must be served as follows:

1. The original order under the hand of the judge making it
must be exhibited to the person to be served.

2. A copy thereof and of the affidavit upon which it was made
must be delivered to him.

Service upon a corporation is sufficient if made upon an officer
to whom a copy of a summons must be delivered where a sum-
mons is personally served upon the corporation; unless the officer
is specially designated by the judge, as prescribed in section
[2444] eight hundred and four of this act.

[Code § 2452. Omitted by Board with reference to its proposed rule 59
“Service of papers generally.”]

§ 813. Service of warrant of arrest. The sheriff, when he
arrests a judgment debtor by virtue of a warrant issued as pre-
scribed in this article, must deliver to him a copy of the warrant
and of the affidavit upon which it was granted.

[Code § 2453. Omitted by Board, with reference to its proposed rule 59,
“Service of papers generally.”]

§ 814. Punishment for disobedience of order. A person
who refuses or without sufficient excuse neglects to obey an
order of a judge or referee, made pursuant to the last two sec-
“tions, or to any other provision of this article, and duly served
416 Reporr or. Joint Lecistative ComMitTEE

upon‘him, or an oral direction given directly to him by a judge
or nekeree, in the course of the special proceedings, or to attend
before a judge or referee according to the command of a subpoena
duly setved upon him, may be punished by the judge of or by the
court out of which the execution was issued, by the county judge,
‘the special county judge or the special surrogate, of the county
to which the execution was issued, or by the city court of the city
of New York or a justice thereof if the proceedings were insti-
tuted before such court or any justice thereof, as for a contempt.

[Code § 2457. See’ Board’s proposed Judiciary Law, § 753-a, practically
identical.]
at ance ay a5 Se ys i

§ 815. Continuance of proceedings before another judge
in certain cases. Sections [26, 52, and 279] seventy-eight and
‘ninety- three of this act apply to a spéefal proceeding instituted as
prescribed in this article; and the judge before whom it is con-
tinued, as prescribed in either of those sections, is deemed to be
the judge to whom an order or warrant is returnable, for the
impose oF (Any. peovaelon of this [or t the next] article.

“Goda § ‘2468. Omitted by Board with reference to its proposed Civil Prac-
tice Act, §'63. The reference in this section to Code § 279 has been obsolete
since the repeal of former § 279 by L. 1895, ch. 946.]

§ 816. Discontinuance or dismissal of proceedings. A
special proceeding instituted. as prescribed in this article “may
be discontinued at any titne, upon such terms as justice requires,
yan order of the judge made upon the application of the judg-
ment creditor. Where the judgment creditor unreasonably neg-
lects or delays to proceed, or where it appears that his judgment
has been satisfied, his proceedings may be dismissed, upon like
terms, by a like order made upon the application of the judgment
debtor; ‘or of the plaintiff in a judgment creditor’s action against
the debtor, or of a judgment creditor who has instituted either
of the special proceedings authorized by this article. Where
an order appointing a receiver or extending a receivership has
been made in the course of the special proceeding, notice of the
application for an order specified in this section must be given,
in such a manner as the judge deems proper, to all persons inter-
ested in ‘the receivership, as far as they can conveniently be
ascertained.

[Code § 2454. Omitted by Board with reference to its proposed Civil Prac-
tice Act, § 4.]
Crvitn Practices Act ALT

§ 817. Costs to judgment creditor. The judge may make an
order allowing to the judgment creditor a fixed sum as costs, con-
sisting of his witnesses’ fees and other disbursements, and of a
sum in addition thereto not exceeding thirty dollars; and directing
the payment thereof out of any money which has come or may
come to the hands of the receiver or of the sheriff; or, within a
time specified in the order, by the judgment debtor or other person
against whom the special proceeding is instituted.

[Code § 2455. See Board’s proposed Costs, Fees, Disbursements and Inter-
est Law, § 139, practically identical.]

§ 818. Costs to judgment debtor. Where the judgment
debtor or other person against whom the special proceeding is
instituted has been examined, and property applicable to the
payment of the judgment has not been discovered in the course
of the special proceeding, the judge may make an order allowing
him a like sum as costs, and directing the payment thereof, within
a time specified in the order, by the judgment creditor, or, except
where it is allowed to the judgment debtor, out of any money
which has come or may come to the hands of the receiver or of
the sheriff.

[Code § 2456. See Board’s proposed Costs, Fees, Disbursements and Inter-
est Law, § 140, practically identical.]

§ 819. Appointment of receiver. At any time after making
an order requiring the judgment debtor or any other per-
son to attend and be examined, or issuing a warrant, as pre-
scribed in this article [first of this title], the judge to whom the
order or warrant is returnable may make an order appointing
a receiver of the property of the judgment debtor. At least two
days’ notice of the application for the order appointing a
receiver must be given personally to the judgment debtor, unless
the judge is satisfied that, with reasonable diligence, he cannot[,
with reasonable diligence,] be found within the state; in which
case, the order must recite that fact, and may dispense with notice
or [may] direct notice to be giver. in any manner which the judge
thinks proper. But where the order to attend and be examined,
or the warrant, has been served upon the judgment debtor,’ a
receiver may be appointed upon the return day thereof or at the
close of the examination without further notice to him.

[Code § 2464. First sentence included by Board in its proposed Debtor

and Creditor Law, § Il-hh. The last sentence was omitted by the Board as
covered by rule 18 “ Notice of motion.”]

14.
418 Report or Jotnr LegisuativE CoMMITTEE

§ 820. Notice when other action or proceeding pending.
The judge must ascertain if practicable, by the oath of the
judgment debtor or otherwise, whether [an] a judgment cred-
itor’s action[[, specified in article first of title fourth of chap-
ter fifteenth of this act,J or [a] another special proceeding
instituted as prescribed in this article [first of this title,] is
pending against the judgment debtor. If either is pending, and
a receiver has not been appointed therein, notice of the application
for the appointment of a receiver and of all the subsequent
proceedings respecting the receivership must be given, in such a
manner as the judge directs, to the judgment creditor
prosecuting it. .

_ [Code § 2465. See Board’s proposed Debtor and Creditor Law, § 1-hh, in
practically identical language.]

§ 821. Extension of existing receivership. Only one
receiver of the property of a judgment debtor shall be appointed.
Where a receiver thereof has already been appointed, the judge,
instead of making the order prescribed in the last section
but one, must make an order extending the receivership to the
special proceeding before him. Such an order gives to the judg-
ment creditor the same rights as if a receiver was then appointed
upon his application, including the right to apply to the court to
control, direct or remove the receiver, or to subordinate the pro-
ceedings in or by which the receiver was appointed to those taken
under his judgment.

[Code § 2466. See Board’s proposed Debtor and Creditor Law, § 1-ii, practi-
cally identical.]

§ 822. Receiver must be resident of state. No person shall
be appointed a receiver in this state who is not a resident
thereof, nor shall any person continue to act as receiver after he
ceases to be a resident thereof, and the judgment creditor may
apply to the court or judge that appointed such receiver, within
thirty days after said receiver ceases to be a resident of this state,
for the appointment of another person in his place, upon such
notice to the persons interested as the court or judge may direct.

[Code '§ 2469, subd. 5. Requirement as to residence included by Board in
its proposed Debtor and Creditor Law, § l-kk. Last portion of subdivision is
omitted by Board. Reference by Board to its proposed Judiciary Law, § 499-1,
“Removal, of Receiver.” ]
Crvit Practicr Act 419

§ 823. Vesting of property in receiver. The property of the
judgment debtor is vested in a receiver who has duly qualified,
from the time of filing the order appointing him or extending
his receivership, as the case may be; subject to the following
exceptions:

_ 1. Real property is vested in the receiver only from the time
when the order or a certified copy thereof, as the case may he,
is filed with the clerk of the county where it is situated.

2. Where the judgment debtor at the time when the order is
filed resides in another county of the state, his personal prop-
erty is vested in the receiver only from the time when a copy
of the order, certified by the clerk in whose office it is recorded,
is filed with the clerk of the county where he resides.

[Code § 2468. See Board’s proposed Debtor and Creditor Law, § 1-jj,
identical.]

§ 824. Extension of receiver’s title to personal prop-
erty. Where the receiver’s title to personal property has become
vested, as prescribed in the last section, it also extends back
by relation, for the benefit of the judgment creditor in whose
behalf the special proceeding was instituted, as follows:

1. Where an order requiring the judgment debtor to attend and
be examined, or a warrant requiring the sheriff to arrest him and
bring him before the judge, has been served before the appoint-
ment of the receiver or the extension of the receivership, the
receiver’s title extends back, so as to include the personal
property of the judgment debtor at the time of the service of the
order or warrant.

_2. Where an order or warrant has not been served, as’ specified
in the foregoing subdivision, but an order has been made requiring
a person to attend and be examined concerning property belong-
ing, or a debt due, to the judgment debtor, the receiver’s title
extends to the personal property belonging to the judgment debtor,
which was in the hands or under the control of the person or
corporation thus required to attend, at the time of the service of
the order, and to a debt then due to him from that person or
corporation.

3. In every other case where notice of the application for the
appointment of the receiver was given to the judgment debtor,
the receiver’s title extends to the personal property of the judgment
debtor at the time when the notice was served, either personally
430 Revorr or Joinr Lectsnative ComMmirreE

or by complying with the requirements of an order preseribing a
substitute for personal service.

4. Where the case is within two or more of the foregoing sub-
divisions of this section, the rule most favorable to the judgment
creditor must be adopted.

[5. No person shall be appointed a receiver in this state who
is not a resident thereof, nor shall any person continue to act as
receiver after he ceases to be a resident thereof, and the judgment
creditor may apply to the court or judge that appointed such
receiver, within thirty days after said receiver ceases to be a
resident of this state, for the appointment of another person in
his place, upon such notice to the persons interested as the court
or judge may direct.]

But this section does not affect the title of a purchaser in good
faith without notice and for a valuable consideration, or the
payment of a debt in good faith and without notice.

‘Code § 2469. Subd. 5 is made a separate section. See Board’s proposed
Debtor and Creditor Law, § 1-kk identical, except that last portion of subd.
5 is omitted as covered by proposed Judiciary Law, § 499-1,]

§ 825. Regulations affecting control of receiver and his
accounts. 1. A receiver appointed as prescribed in this article
is subject to the direction and control of the court out of
which the execution was issued, except where a receiver is
appointed by the city court of the city of New York or by a
county court, or a justice of said courts, he is subject to the
direction and control of the said court or justice. Where an order
has been made extending a receivership to a special proceeding
founded upon a subsequent judgment, the control over and
direction of the receiver, with respect to that judgment, remain in
the court or justice to whose control and direction he was
originally subject.

2. He shall keep accounts of his receivership and vouchers for
all moneys paid out.

8. An interested party may appear by serving upon the receiver
and filing in the court a written notice.

4. The receiver may file his account and thereupon move for
either an intermediate or final judicial settlement thereof. Should
the receiver fail to file an account and apply for the above relief
within a reasonable time, an interested party may apply for an
order directed to the receiver. The account must contain a full
and true statement as to all property and the disposition thereof.
Tt must be verified to the effect that it is true to the knowledge of
Crvit Practice Act 421

the receiver, except as to the matters therein stated to be alleged
on information and belief and that as to those matters he believes
it to be true, that the sources of his information and grounds
of his belief are as therein set forth, and he knows of no error
or omission to the prejudice of the judgment debtor, creditor,
surety or other person interested. All vouchers must be numbered
and classified and a summary of the totals, together with the total
payment made or due to each person, shall ba made part of
and accompany the account.

5. The court may direct the receiver to attend and be examined
under oath as to the account, the discharge of his duties or any
other matter relating to the administration thereof.

6. He may be allowed without a voucher any proper item of
expenditure for postage, affidavit or acknowledgments, or other
item, not exceeding five dollars, for which a voucher is not
customarily given or obtainable, upon specifying in his account
when, to whom and for what the payment was made; but all
the items so allowed shall not exceed one hundred dollars.

7. An interested party may contest the account, after appearing,
by filing written objections thereto and serving a copy thereof
upon the receiver or his attorney either before or after service
upon him of a written notice of the filing of said account. The
time within which to contest the account may be hmited by the
court. The contest shall be confined to the items or matters
thus objected to.

8. A settlement of the account may be ordered subject to said
objections. The court may allow or disallow any item of the
account and decree either an intermediate or final settlement con-
elusive upon all parties, appearing therein or who have heen served
with notice of filing of said account.

[Code § 2471. See Board’s proposed Debtor and Creditor Law, § 1-11, practi-
cally identical.]

§ 826. Filing of receivership orders. An order appointing a
receiver or extending a previous receivership, and the bond, if
any be required, must be filed in the office of the clerk of the
county wherein the judgment-roll in the action is filed; or, if the
special proceeding is founded npon an execution issued out of
a court other than that in which the judgment was rendered, in
the office of the clerk of the county wherein the transcript of the
judgment is filed.

[Code § 2467. Omitted by Board as covered by its proposed rule 12.]
499 Report or Joint Lugistative ComMMITTEE

_ § 827. Duties of county clerk as to order. Each county
clerk must keep in his office a hook indexed to the names
of ‘the judgment debtors, styled “book of orders appointing
receivers of judgment debtors. PB county clerk in whose office
an order or a certified copy of an order is filed, as prescribed in
section [2467] eight hundred and twenty-six or section [2468]
eight hundred and twenty-three of this act, must imme
diately note thereupon the time of filing it, and, as soon
‘ag practicable, must record it in the book so kept by him.
[He must also, uJ Upon request, he also must furnish forthwith
to any party or person interested one or more certified copies
thereof. For each omission to comply with any provision of
this section, a county clerk forfeits to the party aggrieved two
hundred and fifty dollars in addition to all damages sustained
by reason of the omission.

‘| [Code § 2470.

identical. ]

See Board’s proposed County Law, § 179-a, practically

ARTICLE 47

ARREST, INJUNCTION AND ATTACHMENT;

Section 828.
829.
830.
831,
832.
833.
834.

835.

836.
837.

838.

ayer Si

GENERAL PROVISIONS

Order or warrant to which this article applies.

Appheation for order or warrant without notice.

Proof on application or hearing.

By whom order or warrant may be granted.

At what time the order or warrant may be granted.

Security.

Liability of municipal corporation as surety, if
security dispensed with.

Order or warrant to recite the grounds therefor.

New proof to sustain order or warrant, upon hear-
ing of application to vaeate; amending recitals.

Arrest, injunction and attachment, when not to be
granted together.

Counterclaim; right of defendant to an order or
warrant.

). Jurisdiction acquired from time provisional remedy

granted.
Civin Practice Acr 423

§ 828. Order or warrant to which this article applies.
An order or warrant referred to in this article means either an
order for the arrest of a party, an order for a temporary injunc-
tion or a warrant of attachment against property.

[New.]

§ 829. Application for order or warrant without notice.
Except as otherwise specially prescribed by statute, an application
for such an order or warrant, either before or after the defendant’s
appearance in the action, may be made without notice.

[New. States the actual practice which prevails, with respect to arrest
and attachment, in spite of section 422 of the Code, which provides that a
defendant, after appearance, shall have notice of everything. Special pro-
vision as to notice in injunction cases is made by Code § 609, retained by the
Committee. Applications for arrest or attachment after appearance of
defendant are infrequent and the decisions as to practice in such cases are
few. The following decisions, construing Code § 799 (Field Code § 414)
seem to be good law to-day, notwithstanding Code, § 422. Becker v. Hager,
8 Howard’s Practice Reports, 68; Schundt v. Calm, 3 Alb. L. J. 389.]

§ 830. Proof on application or hearing. Proof of a
sufficient cause of action or fact in support thereof or of any
extrinsic fact, to entitle a party to such an order or warrant, or
proof to support or oppose a motion to vacate the order or war-
rant or discharge a person from arrest, or discharge an attach-
ment, may be made by affidavit and by such other written evi-
dence as the rules permit.

[Consolidation of Code §§ 557, 568 pt., 604 pt., 607, 627 pt., 636 pt.,
637, last sentence, 683 pt. and 689 pt. The provision as to “other written
evidence”? and rules therefor is new. It is conceivable that better proof
of certain facts, such as the contents of a record or acts of a public officer,
might more properly be made by official certificate than by an affidavit. The
proposed section authorizes an elastic method of proof, subject to court rules.
The expression “other written evidence” is intended to exclude oral testi-
mony. There is precedent for that expression. See Judiciary Law, § 758.]

§ 831. By whom order or warrant may be granted.
Except as otherwise specially prescribed by statute, or rules
adopted as provided in this section, any such order or warrant
may be granted, in a proper case, either by the court in which
the action is brought or a judge thereof or any county judge;
but the rules may provide, either generally or as to any depart-
ment, that an application for a warrant of attachment or for an
424 Rerorr or Jornt LecisitativE COMMITTEE

order for the arrest of a party, other than an order which by
express provisions of statute may be granted only by the court,
shall be made to such a judge and not to the court.

[Code §§ 556, 606, first sentence, § 638 first sentence. The proposed
section extends to the court the power to grant an order of arrest or warrant
of attachment — a power now conferred, in terms, upon a judge only, except
in the case of a “ne exeat.” The apparent intention of Code § 768, as
amended in 1911, is to permit a court, outside of the first department, to
make any order which by statute may be made at chambers. The proposed
section gives the judges power to adopt rules requiring applications for
an attachment or arrest to be made to a judge only and not to the court,
in any department. Such a rule would apply to the application and would
authorize the court to decline to hear the application. If an order or
warrant of attachment were actually granted by the court, by an order in
the form of « court order, it would nevertheless be valid under § 768 of the
Qode, which the committee has retained elsewhere.]

§ 832. At what time the order or warrant may be granted.
The order or warrant may be granted to accompany the sum-
mons or at any time after the commencement of the action, but it
may not be granted after final judgment, except as otherwise
specially prescribed by statute.

[Code §§ 551 pt., 558 pt., 608 and 638 pt., condensed and combined, with
saving clause beginning with “except” to cover the granting after judg-
ment of an order for the arrest of a defendant in an aetion under Code
§ 650, which is elsewhere retained by the committee. See Board rule 392.]

§ 833. Security. Except where security is expressly dispensed
with by statute, such an order or warrant shall not be
granted unless the party applying therefor gives security for
the protection of the party against whom or whose property the
order or warrant is to be directed. Except where the security
is specially regulated by statute, it shall consist of an undertaking
with sufficient sureties. The undertaking shall be to the effect,
and in the amount if any, prescribed by statute relating to the
particular remedy.

[Parts of Code §§ 559, 611, 616, 620 and 640 condensed and made uniform.
This leaves only the terms and amount of the undertaking to be specified
in the provisions relating to each particular remedy. See Board rule 395.]

§ 834. Liability of municipal corporation as surety, if
security dispensed with. [Each provision of this act, requir-
ing a party to give security, for the purpose of procuring an order
Crvit Practice Act 425

of arrest, an injunction order, or a warrant of attachment, or as
a condition of obtaining any other relief, or taking any proceed-
ing; or allowing the court, or a judge, to require such security
to be given, is to be construed as excluding an action brought by
the people of the state, or by a domestic municipal corporation ;
or by a public officer, in behalf of the people, or of such a cor-
poration ; except where the security, to be given in such an action,
is specially regulated by the provision in question; but iJ Jn any
action in which a domestic municipal corporation, or a public
officer in behalf of such corporation, shall bel[, by the foregoing
provisions of this section, ] excused by statute from giving security
on procuring an order of arrest, an order of injunction or a war-
rant of attachment, such corporation shall be liable for all dam-
ages that may be [so] sustained by the opposite party by reason
of such order of arrest, attachment or injunction, in the same case
and to the same extent as sureties to an undertaking would have
been if such an undertaking had been given.

[Code § 1990, last clause, without change of substance. The first clause
of the section is retained under “ security.’’]

§ 835. Order or’ warrant to recite the grounds therefor.
The order or warrant must briefly recite the ground or grounds
on which it is granted.

[Code § 610, first sentence; § 641, first sentence pt.; General Rules of Prac-
tice 13.]

§ 836. New proof to sustain order or warrant, upon hear-
ing of application to vacate; amending recitals. If the
application to vacate be without notice, it shall be founded and
heard only on the papers on which the order or warrant was
granted. If the application to vacate be to the court or a judge
thereof, upon notice, the provisions of this act shall not prevent
the court or judge, in furtherance of justice, from allowing new
proof, in behalf of the party opposing the application, to supersede
or supply defects in the original proof, though the application
to vacate bé founded only on the papers on which the order or
warrant was granted. Nothing contained in this act shall pre
vent the court, by order granted on motion, from directing that
the order or warrant and recitals therein be amended to conform
to the proof. The court or a judge thereof to which or tc whom
an application to vacate the order or warrant is made upon notice,
426 Reporr or Joint Lecisuative ComMMItTEE

may permit such an amendment without notice, by a direction in
the order determining the application.

[New. The first sentence expresses the actual practice at present, under
Code. §§ 568 (arrest), 626, 627 (injunction) and 683 (attachment). The
second sentence states a rule which would now prevail, under the existing
code, if a liberal interpretation had been given to Code § 722 —the plenary
amendment section. Judge Gaynor, in Manisealo v. Slamowitz, 123 App.
Div. 690, applied the restricted rule as it actually prevails, as follows: “The
motion to vacate the order of arrest was made on the papers on which it was
‘granted, and hence the two new affidavits of the plaintiff could not be read
in opposition,” citing Code § 568.

On the other hand, there is precedent for the second sentence of the pro-
posed section in the case of Sulzbacher v. Cawthra, 14 Misc. 545 (N. Y.
common pleas) affirmed “on the opinion below” by 148 N. Y. 755. That
was an attachment case, and affidavits by plaintiff were received on his
application to (a) change the statement of facts constituting his cause of
action and (b) amend the warrant. As the procedure so far as relates to
new proof, in attachment, is practically identical with that in arrest and
injunction (Code §§ 568, 627 and 683), the rule announced in the above case
necessarily applies to arrest and injunction. Judge Daly, in that case, said:
“Tt is contended by defendant that * * 7 the right of a plaintiff to sustain
his attachment in any manner by new proofs is restricted to cases where
the defendant applies on affidavits to vacate or modify the warrant. Code
§§ 682, 683. If the general powers of amendment allowed by the Code
(§§ 728, 724) and inherent in the court applies to attachment proceedings,
such power is not restricted by the sections relied on by the defendant
(§§ 682, 683). The object of those provisions was to give u defendant and
subsequent lienors the fullest protection against excessive as well as
unauthorized attachments, section 682 conferring the right to make the appli-
cation and section 683 prescribing the practice upon it. They contain no
provision excepting attachment proceedings from the general powers of
amendment conferred by the code, and no such exception is to be implied.”

‘The second sentence of the proposed section broadens somewhat the rule
laid down in the above case, in that it authorizes the court or judge to
allow « plaintiff to oppose by new proof a motion to vacate on the original
papers, without a preliminary motion by plaintiff to amend his papers. Inas-
much as the court has inherent power to allow a defendant to renew the
motion to vacate, no injustice would ensue to a defendant who, in good faith,
proposed to traverse or avoid the new proof adduced by plaintiff.

The last sentence expresses the actual practice, as to amending the order
or warrant (King v. King, 68 App. Div. 189), extended to allow the amend-
ment without « motion therefor by plaintiff, where the defendant applies to
vacate. ]

§ 837. Arrest, injunction and attachment, when not to be
granted together. Where application for an order of arrest, an
injunction order and a warrant of attachment, or two of them,
Crvit Practice Act 427

is made in the same action against the same defendant,
and it satisfactorily appears that, under the particular circum-
. stances of the case, two or all of them are not necessary for the
plaintiff’s security, the court or judge, [may,] in its or his dis-
cretion, may require the plaintiff to elect between them. Where
an application is made to obtain, vacate, modify or set aside an
order of arrest, injunction order or warrant of attachment, the
court or judge must finally decide the same within twenty days
after it is submitted for decision.

[Code § 719, without change.]

§ 838. Counterclaim; right of defendant to an order or
warrant. Where the defendant interposes a counterclaim, and
thereupon demands an affirmative judgment against the plaintiff,
his vight to [a provisional remedy] such an order or warrant
is the same as in an action brought by him against the plaintiff
for tke cause of action stated in the counterclaim, and demanding
the same judgment. [And f] for the purpose of applying to
such a case the provisions of this act. or the provisions of a rule
which does not cn terms apply only to a plaintiff, the defendant
is deemed the plaintiff, the plaintiff is deemed the defendant, and
the counterclaim so set forth in the answer is deemed the com-
plaint.

[Code § 720, amended as indicated. The code section apparently applies
to all provisional remedies. It applies in fact only to arrest, injunction and
attachment, for the reason that the statutes relating specifically to those
remedies are the only ones that give the remedy, in terms, to the plaintiff,
thereby making necessary the above section to extend the remedy to the
defendant. Hence its inclusion in this article.]

§ 839. Jurisdiction acquired from time provisional remedy
granted. [But f] /rom the time of the granting of a provisional
remedy, the court acquires jurisdiction and has control of all
the subsequent proceedings. Nevertheless, jurisdiction thus
acquired is conditional, and liable to be divested in a case where
the jurisdiction of the court is made dependent by a special pro-
vision of law upon some act to be done after the granting of the
provisional remedy.

[Last two sentences of Code § 416. First sentence is covered under
Summons. ]
428 Report or Jornt LecistativeE COMMITTEE

ARTICLE 48
ARREST; WHEN ALLOWED

Section 840. Right to arrest depending upon the nature of the

action,

841. Right to arrest depending partly upon extrinsic
facts.

842. Foreign judgment not to affect right to arrest.

843. Woman not to be arrested; exceptions.

844. Discharge of idiot, lunatic, or infant under four-
teen, if arrested.

845. Arrest of person sued in a representative capacity.

846. New order of arrest when sick prisoner escapes.

§ 840. Right to arrest depending upon the nature of the
action. A defendant may be arrested in an action, as [pre
scribed] provided in this [title] and the next article, where the
action is brought for either of the following causes:

1. To recover a fine or penalty.

2. To recover damages for a personal injury[ ;].

8. To recover déringes for an injury to property, including the
wrongful taking, detention or conversion of personal property[;].
4. To recover damages for breach of a promise to marry[[;].

5. To recover damages for misconduct or neglect in office, or
in a professional employment[, ;].

6. To recover damages for fraud, or deceit[, or].

7. To recover a chattel where it is alleged in the complaint
that the chattel or a part thereof has been concealed, removed or
disposed of so that it cannot be found or taken by the sheriff and
with intent that it should not be so found or taken, or to deprive
the plaintiff of the benefit thereof[ ; or]. Where such allegation
is made, the plaintiff cannot recover unless he proves the same on
the trial of the action, and a judgment for the defendant is not a
bar to a new action to recover the chattel.

8. To recover for money received, or to recover property or
damages for the conversion or misapplication of property, where
it is alleged in the complaint that the money was received or the
property was embezzled or fraudulently misapplied by a public
officer or by an attorney, solicitor or counselor, or by an officer or
Crvit Practice Act 429

agent of a corporation or banking association in the course of his
employment, or by a factor, agent, broker, or other person in a
fiduciary capacity. Where such allegation is made, the plaintiff
cannot recover unless he proves the same on the trial of the action;
and a judgment for the defendant is not a bar to [the] a new
action to recover the money [or chattel] or property.

9. [8] To recover money, funds, credits or property, held or
owned by the state, or held or owned, officially or otherwise, for
or in behalf of a public or governmental interest, by a municipal
or other public corporation, board, officer, custodian agency, or
agent, of the state or of a city, county, town, village, or other
division, subdivision, department, or portion of the state, which
the defendant [has], without right, has obtained, received, con-
verted, or disposed of, or to recover damages for so obtaining,
receiving, paying, converting, or disposing of the same.

10. [4] In an action upon contract, express or implied, other
than a promise io marry, where it is alleged in the complaint
that the defendant was guilty of a fraud in contracting or incur-
ring the liability, or that, [he has] since the making of the con-
tract, or in contemplation of making of the same, he has removed
or disposed of his property with intent to defraud his creditors, or
is about to remove or dispose of the same with like intent; but
where such allegation is made, the plaintiff cannot recover unless
he proves the fraud on the trial of the action; and a judgment for
the defendant is not a bar to a new action to recover upon the
contract only.

[Code § 549, without change of substance.]

§ 841. Right to arrest depending partly upon extrinsic
facts. A defendant may also be arrested in an action wherein
the judgment demanded requires the performance of an act,
the neglect or refusal to perform which would be punishable
by the court as a contempt, where the defendant is not a resident
of the state, or, being a resident, is about to depart therefrom,
by reason of which non-residence or departure there is danger
that a judgment or an order requiring the performance of the
act will be rendered ineffectual. In a case specified in [the last]
this section, the order of arrest can be granted only by the court,
is always in its discretion and may be granted or served either
before or after final judgment, unless an appeal from the judg-
430 Reporr or Jorst Lugistative ComMmitrEE

ment is pending, upon which security has been given sufficient
to stay the execution thereof.

[First sentence is Code § 550. Last sentence is Code § 551, first sentence.
The provision relating to time of granting the order is the “ exception” pro-
vided for in the section of general provisions relating to same subject.
The time of serving the order, as above provided, is also an exception to the
general section appearing later in this article.]

§ 842. Foreign judgment not to affect right to arrest.
The recovery of judgment in a court, not of the state, for the same
cause of action, or, where the action is founded upon fraud or
deceit, for the price or value of the property obtained thereby,
does not affect the right of the plaintiff to arrest the defendant,
as prescribed in this [title] and the next article.

[Code § 552, without change.]

§ 843. Woman not to be arrested; exceptions. A woman
cannot be arrested, as prescribed in this [title] and the next
article, except in a case where the order can be granted only by the
court or where it appears that the action is to recover damages
for a wilful injury to person, character or property.

[Code § 553, without change.]

§ 844. Discharge of idiot, lunatic, or infant under fourteen,
if arrested. A lunatic, an idiot, or an infant under the age of
fourteen years, if arrested, may be discharged from arrest as a
privileged person, in the discretion of the court or judge. The
application for his discharge may be made in his behalf by a
relative or by any other person whom the court or judge permits
to represent him, for the purpose.

' [Code § 554, im effect. A discharge, on account of privilege, elsewhere
provided for, may be granted either by the court or a judge; and the con
cluding sentence of the above section implies that an idiot, infant, etc., may
be so: discharged. ]

§ 845. Arrest of person sued in a representative capacity.
A person prosecuted in a representative capacity, as heir, executor,
administrator, legatee, devisee, next of kin, assignee or trustee,
cannot be. arrested, as prescribed in this [title] and the next
article, except for his personal act.

[Code § 555, without change. |
Civit Practicr Act 431

§ 846. New order of arrest when sick prisoner escapes. If
a prisoner im custody by virtue of an order of arrest actually
escapes, while going to, remaining at, or returning from a hospital
to which he has been ordered removed pursuant to section three
hundred and fifty-five of the prison law, a new [execution may
be issued against his person, if he was in custody by virtue of an
execution ; or, if he was in custody by virtue of an order of arrest,
a new] order of arrest may be granted, upon proof by affidavit
of the facts specified in this section, without other proof and with-
out an undertaking,

[Code § 127, except as to issue of new execution, which has been covered
under Execution. ]

ARTICLE 49

ARREST, GRANTING, EXECUTING AND VACAT-
ING THE ORDER

Section 847. Facts to be shown to obtain order of arrest.

848. Complaint or amended complaint as part of the
moving papers.

849. Terms of undertaking.

850. Security upon order of arrest granted by the court.

851. Security dispensed with in certain cases.

852. Optional directions in the order of arrest.

8538. Copies of papers to be delivered to defendant; tinie
of service.

854. Arrest; how made.

855. General provision as to privilege from arrest; dis-
charge of privileged person.

856. Time within which to apply to vacate order, reduce
bail or increase security.

857. Vacating order on ground of insufficient complaint.

858. How and to whom application to vacate, or for
other relief affecting the order, shall be made;
new proofs.

859. Limitation as to new proof on application to vacate.

860. Discharge of defendant from arrest, actual or
impending, for inexcusable or collusive delays
in prosecuting suit or remedy.
432 Revorr or Joint Lueistative ComMMITTEE

§ 847, Facts to be shown to obtain order of arrest. Be-
fore an order of arrest shall be granted, the existence of a cause
of action sufficient to establish the right to an arrest, or, where the
right to arrest depends partly on extrinsic facts, the existence of
a cause of action and facts sufficient to authorize the order, shall
ba shown to the satisfaction of the court or judge. Where a
specific allegation in the complaint is necessary, by statute, to an
arrest of the defendant, the complaint or a copy thereof or a pro-
posed amended complaint must be produced.

(Code § 557, rewritten. The last sentence expresses the actual practice.
The provision of the code section relating to proof of amount of bail is
transferred to a rule.]

§ 848. Complaint or amended complaint as part of the
moving papers. Upon an application for an order of arrest,
an allegation of a verified complaint or amended complaint, offered
as proof of any fact, shall have the effect only of an affidavit. If
the order of arrest be applied for after service of the complaint,
the plaintiff may present to the court or judge an amended com-
plaint setting forth a cause of action in which an arrest is author-
ized and any allegation essential to an arrest. If the order
of arrest be granted, service of any such amended complaint shall
be deemed ordered without a specific direction therefor.

[The first sentence is new, but is in harmony with decisions. The second
and third sentences supersede Code § 558, part.]

§ 849. Terms of undertaking. [Except where the action is
brought for a cause specified in subdivision third of section
five hundred and forty-nine of this act, or in a case where it
is specially prescribed by law that security may be dispensed
with, or the security to be given is specially regulated by law, the
judge, before he grants the order must require a] The written
undertaking on the part of the plaintiff [with two sufficient
sureties], where security is not dispensed with or otherwise regu-
lated by statute, shall be to the effect that if the defendant recovers
judgment or if it is finally decided that the plaintiff was not
entitled to the order of arrest, the plaintiff will pay all costs which
may be awarded to the defendant and all damages which
he may sustain by reason of the arrest, not exceeding the
sum specified in the undertaking, which must be at least equal to
Civia Practice Act 433

one-tenth of the amount of bail required by the order and not less
than two hundred and fifty dollars.

[Code § 559, amended as indicated. The statement that security is required
generally is found in general provisions relating to provisional remedies.
The exception in favor of a cause of action under Code § 549, subd. 3, is
made a separate section, infra.]

§ 850. Security upon order of arrest granted by the court.
Where the order can be granted only by the court, an undertaking
on the part of the plaintiff may be dispensed with. If it is
required, its form and the security to be given thereupon must he
such as the court prescribes.

[Code § 560, without change.]

§ 851. Security dispensed with in certain cases. Security
shall not he required upon granting an order of arrest where
the action is brought for a cause specified in subdivision [three]
nine of section eight hundred and forty.

[Code § 559, part. The provision referred to in the proposed section is
Code § 549, subd. 3, which covers an action against a public officer, etc., for
misappropriating funds or property.]

§ 852. Optional directions in the order of arrest. The order
may be directed either to the sheriff of a particular county
or, generally, to the sheriff of any county. The plaintiff’s
attorney [may], at his option, by an indorsement upon the order,
or, where it was granted by the court, upon the copy thereof
delivered to the sheriff, may fix a time within which the defendant
must be arrested. In [that] such case, he cannot be arrested
afterward under the same order, unless the tume be extended by
the court, for cause.

[Code § 561, second, fourth and fifth sentences. The new matter beginning
with “unless” is to prevent a restricted interpretation of the broad section

proposed by the committee, relative to extension of time in which any act
may be done.]

§ 853. Copies of papers to be delivered to defendant;
time of service. The order of arrest, or, where it was granted by
the court, a certified. copy thereof, subscribed by the plaintiff’s
attorney, and, in either case, the papers upon which the order
was granted, with the undertaking, if any, must be delivered to
4134 Report or Jormnt Leatsuatives ComMITTEE

the sheriff, who, upon arresting the defendant, must deliver to
him a copy thereof. [The papers, upon which the order was
granted, with the undertaking, if any, must be filed, with the
order of arrest, or a certified copy thereof, at the time prescribed
for filing the same, in section five hundred and ninety of this
act. An order of arrest cannot be served after final judgment,
except an order which, by statute, can be granted only by the
court,

[Code § 562, eliminating second sentence as unnecessary. The last sentence
of the proposed section is, in effect, the second sentence of Code § 551.]

§ 854. Arrest; how made. The sheriff must execute the order
by arresting the defendant, if he is found within his county, and
keeping him in custody until discharged by law.

[Code § 563, without change.]

§ 855. General provision as to privilege from arrest;
discharge of privileged person. This [title] act does not
abridge or affect a privilege from arrest given by law or a right
of action for a breach thereof. A privileged person is entitled to
be discharged from arrest, where other provision is not made
therefor by law, by the court or a judge thereof, or by the county
judge of a county where the arrest was made. The order must be
made upon proof [, by affidavit,] of the facts entitling the appli-
cant to the discharge; and the arrest and discharge are not a bar
to a new arrest after the privilege has ceased. The court or judge
may make the order without notice, or may require notice to be
given to the sheriff or to the plaintiff, or to both.

(Code § 564, amended as indicated. Under the general provisions relating

to provisional remedies the proof is to be by affidavit or other written
evidence. ]

§ 856. Time within which to apply to vacate order,
reduce bail or increase security. The time within which the
defendant may apply to vacate the order or to have the bail reduced
or the security by plaintiff increased may be limited by rules,
except that an application to vacate on the ground that the com-
plaint fails to set forth a cause of action in which an arrest js
authorized or an allegation essential to an, arrest may be made
at any time after the complaint is served.

(Substitute for Code § 567. The code section, so far only as it confers the
right of a defendant to apply for a vacation of the order, is unnecessary, ag
Crvit Practice Act 435

the power to vacate is inherent in the court. Regulating the time for mak-
ing the application is properly a subject for rules; and the proposed section
provides accordingly, except as to an application founded on the failure of
the complaint to state a cause of action or allegation justifying the arrest.
By section 558 of the Code, the time to apply to vacate on the latter ground
is unlimited. It is not conceivable that anyone would desire the adoption of
a rule to provide that an arrest in an action in which no arrest whatever
is authorized by law might ripen into a right to hold the defendant by his
mere failure to raise the point in a given time. The right to question the
complaint in such case is analogous to the right to assail it, at any stage,
for failure to set forth facts sufficient to constitute a cause of action, or for
lack of jurisdiction, when there is no arrest and when the defendant failed
to demur.]

§ 857. Vacating order on ground of insufficient complaint.
The service of a complaint which fails to set forth a cause
of action in which an arrest is authorized or an allegation
essential to the right of arrest shall be ground for vacating the
order of arrest, subject to the power of the court, upon plaintifi’s
motion, at any time, to permit the complaint to be amended, to
sustain the crder, with or without terms. Before the determination
of a motion t) vacate an order of arrest, the court or judge hearing
the motion may permit the plaintiff, without notice, to amend the
complaint, to sustain the order.

iNew. Supersedes part of Code § 558, which is too restrictive and not

coextensive with the general powers of amendment elsewhere provided for by
the Committee.]

§ 858. How and to whom application to vacate, or for other
relief affecting the order, shall be made; new proofs. An
application [specified in’ the last section,] to vacate the order,
reduce the amount of bail or increase security given by the
plaintiff, may be founded only upon the papers upon which the
order was granted; in which case, it must be made to the court, or,
if the order was granted by a judge out of court, to the same judge,
in court or out of court, and with or without notice, as he deems
proper[[; and the application must be heard upon those papers
only. Or it may be founded upon proof, [by affidavit,] on the
part of the defendant, or upon the complaint where it was not
part of the papers on which the order was granted, in which case,
it must be made to the court, or, if the order was granted by a
judge out of court, to any judge of the court, upon notice,
andy. If founded, wholly or partly, upon proof, it may be
436 Revorr or Joint Leaisuative ComMMITTEE

opposed as a matter of course by new proof [by affidavit,] on
the part of the plaintiff.

[Code § 568, part, amended as indicated. The elimination of the clause
beginning “and the application” is to harmonize the section with a general
provision permitting the court to allow defects to be supplied by new proof
on the part of the plaintiff, where the motion to vacate is on notice, even
though the motion be founded on the original papers only. The provision
giving the plaintiff the absolute right to adduce new proof, where the motion
to vacate is itself founded on proof, is of course retained. The insertion of
the provision relating to motion to vacate for insufficiency of the complaint,
where the complaint was prepared and served after the granting of the
order, simply states the practice as it is. Such motion is upon notice.

The concluding portion of Code § 568, not covered by the proposed section,
is included in the next section.

The Committee has devoted much thought and effort in an attempt to make
uniform the procedure to vacate an order of arrest, warrant of attachment
and temporary injunction. This might be accomplished with respect to
arrest and attachment, because the procedure in both cases now is the same
(Code §§ 568 and 683). There would be little use, however, in covering the
procedure as to only two of the provisional remedies. A so-called general
provision has no value, as such, if it be full of exceptions. It is impracticable
to include all three remedies in a single scheme of procedure to vacate the
order or warrant, owing to obstacles arising with respect to injunctions.
Under the Code the following distinctions now exist between injunction and
arrest or attachment: (a) The granting of an injunction is often required
to be upon notice, either by statute or direction of the court; hence the
necessity ofa special provision requiring notice of an application to vacate
an injunction so granted, and also. w saving clause to allow the application
in such case only where the injunction order itself permits the application,
it being a general proposition that a party may have but one “ day in court”
on the same question, subject, of course, to an appeal. (b) The Code
(§ 626) provides that defendant may apply without notice, on the original
papers only, to vacate an injunction, granted without notice, if the applica-
tion be made to the judge who granted it or held the court where it was
granted or to the appellate division. This differs from arrest and attach-
ment in that the court or judge, in those cases, may require notice to be
given. The distinction seems to be founded on the sound proposition that
the right to an instant dissolution of an unlawful injunction, the continuance
of which for a single day might work irreparable damage, is more essential
than the immediate dissolution of an order of arrest or warrant of attach-
ment. (c) On the other hand, by reason of the greater injury that might
result to plaintiff by an ill-advised exercise, ex parte, of the power to vacate,
it is provided (Code § 626) that the injunction cannot be vacated without
notice except by the judge who granted it or who held the court where it
was granted or the appellate division, unless the absence or disability of
such judge and that great injury will result from delay be proven by aff-
davit. This safeguard to the plaintiff is more than a mere item of pro-
cedure and has not been disturbed by the legislature since it became a statute

forty years ago.
Crvit Practice Act 437

The foregoing distinctions prevent a satisfactory blend of the procedure,
and the above explanation igs made on account of a suggestion, which has
appeared repeatedly, that the procedure to vacate an order of arrest, war-
rant of attachment or order for temporary injunction be made uniform.]

§ 859. Limitation as to new proof on application to vacate.
When new proof is permissible as a matter of course, un-
der the preceding section, in opposition to an application to
vacate the order, the court or judge may limit such proof to matters
tending to sustain a ground of arrest recited in the order, when
the substantial rights of the defendant shall so require; provided,
however, that if the defendant relies on a discharge in bankruptcy
or discharge or exoneration in insolvent proceedings, the plaintiff
shall be permitted to show any matter in avoidance thereof which
he might show upon the trial.

[Code § 508, part, amended. The essential change is that the plaintiff,
opposing a motion to vacate on affidavits, is not absolutely prevented from
offering proof to sustain the order where the recitals in the order are also
defective. The proposed section gives the court or judge a judicial discretion

to admit any such proof and then, pursuant to a general section of “ pro-
visional remedies,” to permit the order and its recitals to be amended.]

§ 860. Discharge of defendant from arrest, actual or
impending, for inexcusable or collusive delays in prosecuting _
suit or remedy. Except in a case where an order of arrest cau
be granted only by the court, if the plaintiff unreasonably delay
the trial of the action or neglects to enter judgment therein within
ten days after it is in his power to do so, or neglects to issue
execution against the person of the defendant within ten days
after the return of the execution against the property, and in any
event neglects to issue the same awithiv three months after the
entry of “he judgment, or whenever it shall appear to the satis-
faction of the court that the plaintiff in an action, or a judg-
‘ment creditor in a judgment, delays the enforcement of his rem-
edies therein by collusion, or for the purpose of allowing the
debtor to remain in prison under the mandate in any other action,
before the issuing of the mandate in favor of such creditor, so
as to produce a dontinaed and extended imprisonment by virtue of
the separate mandates in the different actions, the defendant,
[must] upon his application, made upon notice to the plaintiff,
must be discharged from custody if he has already been taken un-
der the mandate against him in such action, or if he has not yet
been imprisoned therein, be relieved from imprisonment by virtue
488. Report or Joint Lueisitative CoMMITTEE

of such mandate, by the court in which the action was commenced,
unless reasonable cause is shown why the application should not
be granted. A defendant discharged as prescribed in this section
shall not be arrested upon an execution issued upon the judgment
in the action.

[Code § 572, without change.]

ARTICLE 50

ARREST; DISCHARGING DEFENDANT; BAIL OR
DEPOSIT

Section 861. Defendant to be discharged on bail or deposit.

862. When defendant may elect to give bail or to give
bond for liberties.

863. Undertaking of the bail; what to contain.

864. Examination of persons offered as bail.

865. Delivery of papers to plaintiff’s attorney ; plaintifi’s
acceptance or rejection of bail.

866. Notice of justification; new undertaking, if other
bail is given.

867. Qualifications of bail.

868. Justification of bail.

869. Allowance of bail.

870. Deposit of money with sheriff.

871. Payment of deposit into court by sheriff.

872. Substituting bail for deposit.

873. How deposit disposed of.

874. When deposit to be paid to a third person.

875. Sheriff, when liable as bail; his discharge from
liability.

876. Proceedings on judgment against sheriff.

877. Bail liable to sheriff.

878. Filing papers if bail not given.

§ 861. Defendant to be discharged on bail or deposit.
The defendant, at any time before he is in contempt, where the
order can be granted only by the court, or, in any other case,
at any time before execution against his person, must be dis-
charged from arrest, either upon giving bail, or upon depositing
Crvin Practice Act 439

the sum specified in the order of arrest. The defendant may
give bail, or make the deposit, immediately upon his arrest, at
any hour of the day or night; and he must have reasonable oppor-
tunity to send for and to procure bail before being committed
to jail.

[Code § 573, without change. The Committee deems it wise to retain
several of the ensuing sections of the Code practically intact, on account of
the requirement of the above section that the defendant be admitted to bail
“immediately upon his arrest at any hour of the day or night.” As this
necessarily dispenses with judicial approval of the security, in the first
instance, and as the sheriff is an officer of purely ministerial functions, the
details of procedure should be explicit. Hence, it would be impracticable to
omit such details and rely on the general provisions relating to security.]

§ 862. When defendant may elect to give bail or
to give bond for liberties. Where the defendant is actually
confined in the jail by virtue of an order of arrest, and final or
interlocutory judgment has been rendered against him in the
action, but an execution against his person has not been issued,
he may elect either to give a bond for the liberties of the jail
or to give bail or make a deposit, as prescribed in this article.

[Code § 574, without change.]

§ 863. Undertaking of the bail; what to contain. The
defendant may give bail by delivering to the sheriff a written
undertaking in the sum specified in the order of arrest, executed
by two or more sufficient bail, stating their places of residence
and occupations, to the following effect:

1. If the order of arrest could be granted only by the court,
that the defendant will obey the direction of the court, or of an
appellate court, contained in an order or a judgment requiring him
to perform the act specified in the order or, in default of his so
doing, that [he will] at all times he will render himself amenable
to proceedings to punish him for the omission.

9. If the action is to recover a chattel, that the defendant will
deliver it to the plaintiff, if delivery thereof is adjudged in the
action and will pay any sum recovered against him in the action.

3. In any other case, that the defendant [will], at all times,
will render himself amenable to any mandate which may be
issued to enforce a final judgment against him in the action.

[Code § 575, without change of substance.]
440 Repvorr or Jornr Leoisiarive ComMMirrEs

§ 864. Examination of persons offered as bail. It is not
necessary that the undertaking should be approved or accom-
panied with an affidavit of justification of the bail. But the
ne taking the acknowledgment of the undertaking, [must,] if
the sheriff so requires, must examine under oath to a reasonable
extent the persons offering to become bail, concerning their prop-
erty and their circumstances. The examination must be reduced
to writing, subscribed by the bail, and attached to the undertaking.

[Code § 576, without change.]

§ 865. Delivery of papers to plaintiff’s attorney; plaintiff’s
acceptance or rejection of bail. Within three days after baii
is given, the sheriff must deliver to the plaintiffs attorney
copies, certified by him, of the order of arrest, return and
undertaking. The plaintiffs attorney, within ten days there
after, must serve upon the sheriff a notice that he does not accept
the bail: otherwise he is deemed to have accepted them, and the
sheriff is exonerated from liability.

[Code § 577, without change.]

§ 866. Notice of justification; new undertaking, if other
hail is given. Within ten days after the receipt of the notice,
the sheriff or the defendant may serve upon the plaintifi’s at-
torney notice of the justification of the same or other bail,
specifying the place of residence and occupation of each of the
latter, before a judge of the court or a county judge, at a speci-
fied time and place; the time to be not less than five nor more
than ten days thereafter, and the place to be within the county
where one of the bail resides or where the defendant was arrested.
If other bail are given, a new undertaking must be executed, as
prescribed in section [575] eight hundred and sixty-three of this
act.

[Code § 578, without change.]

§ 867. Qualifications of bail. The qualifications of bail are as
follows:

1. Each of them must be a resident of and a householder or
freeholder within the state.

2. Each of them must be worth the sum specified in the order
of arrest, exclusive of property exempt from execution; but the
judge, on justification, may allow more than two bail to justify
Crvin Practice Act 441

severally in sums less than that specified in the order, if the

whole justification is equivalent to that of two sufficient bail.
[Code § 579, without change. Though the first subdivision is a duplication

of the general provision as to sureties, it is thought best to retain it, as

the second subdivision is clearly an exception to the general provision, and
the section as a whole is a complete and compact instruction as tc the
preparation of the undertaking. ]

§ 868. Justification of bail. For the purpose of justification,
each of the bail must attend before the judge at the time and place
mentioned in the notice and be examined on oath, on the part of
the plaintiff, touching his sufficiency, in such manner as the judge,
in his discretion, thinks proper. The judge, [may,] in his dis-
cretion, may adjourn the examination from day to day until it is
completed; but such an adjournment must [always] be to the
next judicial day, unless by consent of parties. If required by
the plaintifi’s attorney, the examination must be reduced to writ-
ing and subscribed by the bail.

[Code § 580, without change.]

§ 869. Allowance of bail. If the judge finds the bail sufficient,
he must annex the examination to the undertaking, indorse his
allowance thereon and cause them to be filed with the clerk.
The sheriff is thereupon exonerated from liability.

[Code § 581, without change.]

§ 870. Deposit of money with sheriff. A defendant, or other
person arrested or attached on civil process, who is entitled to
release on bail or to jail liberties on giving the undertaking
required by [section one hundred and fifty of this act,] statute,
[may] instead of giving bail or such undertaking, may deposit
with the sheriff the sum specified in or endorsed upon such proc-
ess, or which might be required in such undertaking. The sheriff
must thereupon give the prisoner a certificate of the deposit and
discharge him from custody. A deposit so made in lieu of an
undertaking for jail liberties must be applied under direction of
the court in satisfaction of any judgment for escape of the pris-
oner from such liberties and in payment of any expense incurred
in the defense of an action for such escape, and thereafter the
surplus, if any, and in case there has been no such escape, the
whole of such deposit must be refunded to the prisoner or his
4492 Rerorr or Jotnr Lecistative CoMMITTEE

representative, and in case of a deposit in lieu of bail on attach-
ment against the person, it shall abide the disposition of the court
or a judge thereof, or a county judge.

[Code § 582, in substance.]

§ 871. Payment of deposit into court by sheriff. The sheriff
[must], within four days after the deposit, must pay it into court.
He must take from the officer receiving it two certificates of the
payment, one of which he must deliver to the plaintiff and the
other to the defendant. For a default in making the payment,
the official bond of the sheriff may be prosecuted as in any other
ease of delinquency.

[Code § 583, without change.]

§ 872. Substituting bail for deposit. If money is deposited,
as prescribed in the last two sections, bail may be given, and
may justify upon notice, at any time before the expiration of the
right to be discharged on bail. Thereupon the judge before whom
the justification is had must direct, in the order of allowance, that
the money deposited be refunded to the defendant or his repre
sentative, and it must be refunded accordingly.

[Code § 584, without change.]

§ 873. How deposit disposed of. If money deposited is
not refunded, as prescribed in the last section, [it is,] in a case
where the order of arrest could be granted only by the court,
it ts subject to the direction of the court, as justice requires, before
and after the judgment. In any other case, if it remains on
deposit when final judgment is rendered for the plaintiff, it must
‘ be applied under the direction of the court in satisfaction of the

judgment, and the surplus, if any, must be refunded to the
‘defendant or his representative. If the final judgment is for.
the defendant, or the action abates or is discontinued, the sum
deposited and remaining unapplied must be refunded to the
‘defendant or his representative.

[Code § 585, without change. ]

§ 874. When deposit to be paid to a third person. At
any time before the deposit is paid into court, the defendant may
deliver to the sheriff a written direction to pay it to a third
Crvit Practice Act 443

person therein specified, in the event that the defendant becomes
entitled to a return thereof, but without expressing any other
contingency. The direction must be acknowledged or proved,
and certified, in lke manner as a deed to be recorded, and the
sheriff must deliver it to the officer who receives the deposit, who
must note the substance thereof, with the entries of the deposit,
in his books and upon the two certificates of payment into court.
‘The money thus deposited is deemed the property of the third
person, subject to the plaintiff’s interest therein, and subject to
the rights of a creditor of the defendant, where the direction was
given for the purpose of hindering, delaying or defrauding cred-
itors. The money or the residue thereof must be paid to the
third person where, by the provisions of the last two sections, it is
required to be refunded to the defendant or his representative.

[Code § 586, without change.]

§ 875. Sheriff, when liable as bail; his discharge from
liability. If, after the defendant is arrested, he escapes or is
rescued, or the bail, if any, given by him, do not justify,
when they are not accepted, or if the sheriff fails to pay the
deposit into court as required by [section 583 of] this act, the
sheriff is liable as bail. But the sheriff [may], except in an action
to recover a chattel, may discharge himself from liability by the
giving and justification of bail, as follows:

1. If the case is one where the order could be granted only
by the court, at any time before the court directs the perform-
ance of the act specified in the order.

2. In any other case, at any time before an execution is issued
against the person of the defendant upon a judgment in the
action.

[Code § 587, without change.]

§ 876. Proceedings on judgment against sheriff. If judg-
ment is recovered against the sheriff upon his liability as
bail, and an execution thereon is returned wholly or partly
unsatisfied, the official bond of the sheriff may be prosecuted as
in any other case of delinquency.

[Code § 588, without change.]

§ 877. Bail liable to sheriff. The bail taken upon the arrest,
unless they justify, or other bail are given and justify,
444. Revorr or Jornt LegistativE CoMMITTEE

are liable to the sheriff for all damages which he sustains by
reason of the omission.

[Code § 589, without change.]

§ 878. Filing papers if bail not given. Within ten days
after the defendant is arrested, if he does not give bail, or
if he gives bail, within ten days after the justification of the
bail, the sheriff must file with the clerk the order of arrest, or,
where it was granted by the court, the certified copy thereof
delivered to him, with his return thereupon indorsed, the papers
upon which the order of arrest was granted and the undertaking
given on the part of the plaintiff. Where an order of arrest
directing the arrest of two or more defendants has been executed
as to one or more, but not.as to all of them, the sheriff may file
a copy of the order of arrest instead of the original.

[Code § 590, without change.]

ARTICLE 51

ARREST ; CHARGING AND DISCHARGING
BAIL

Section 879. When defendant may be surrendered.

880. How surrender to be made; exoneration of bail
thereupon.

881. Arrest of defendant by bail.

882. Voluntary surrender ; exoneration of bail thereupon.

883. Rights and liabilities of sheriff as bail.

884. Bail; how proceeded against.

885. Necessity of certain executions before action against
bail.

886. Duty of sheriff as to executions.

887. Defences in action against bail.

888. Relief of bail where principal is imprisoned on
criminal charge.

889. Exoneration of bail.

§ 879. When defendant may be surrendered. Except in an
action to recover a chattel, the bail may surrender the de
Crvit Practicr Act 445

fendant in their own exoneration, or the defendant may sur-
render himself in exoneration of the bail, before the. expiration
of the time to answer in an action against them. The surrender
must be made to the sheriff of the county where the defendant
was arrested.

[Code § 591, without change.]

§ 880. How surrender to be made; exoneration of bail
thereupon. Where the bail surrender the defendant, the surrender
must be made in the following manner:

1. They must take the defendant to the sheriff and require
him, in writing, to take the defendant into his custody.

2. A certified copy of the undertaking of the bail must be deliv-
ered to the sheriff, who must detain the defendant in his custody
thereupon, as upon the original mandate, and [must], by a certifi-
cate in writing, must acknowledge the surrender. Upon the
application of the bail, made upon notice to the plaintifi’s attor-
ney and upon production of the sherifi’s certificate and a copy
of the undertaking, a judge of the court, or the county judge of
the county where the action is triable, may make an order direct-
ing that the bail be exonerated. On filing the order and the
papers used on the application therefor, the bail are exonerated
accordingly.

[Code § 592, without change.]

§ 881. Arrest of defendant by bail. For the purpose
of surrendering the defendant, the bail, at any place or at any time
before they are finally charged, [may] themselves may arrest him,
or, by a written authority, indorsed on a certified copy of the
undertaking, may empower another person to do so, and. one or
more of the bail may thus arrest and surrender the defendant
although the others do not join with him or them for that
purpose.

[Code § 593, without change.]

§ 882. Voluntary surrender; exoneration of bail thereupon.
Where the defendant surrenders himself in exoneration of his bail,
he must present himself to the sheriff and require the sheriff, in
writing, to take him into custody, in exoneration of his bail. The
sheriff must detain him accordingly, as prescribed in subdivision
second of section [592 of this act] eight hundred and eighty; and,

 

 
446 Report or Jorwnr Lecistative CoMMITTEE

if requested by the bail, at any time after the surrender, the sheriff
[must], by a certificate in writing, must acknowledge the sur-
render. An order for exoneration of the bail may be procured
as prescribed in such section [592 of this act].

[Code § 594, without change.]

§ 883. Rights and liabilities of sheriff as bail. Where
the sheriff is liable as bail, he has all the rights and privileges and
is subject to all the duties and liabilities of bail and bail given by
him in order to discharge himself from liability must be regarded
as the bail of the defendant in the action. [But t] This section
does not apply to an action to recover a chattel, [or] nor to a
case where a defence arises to an action against the bail in con-
sequence of an act or omission of the sheriff.

[Code § 595, without change.]

§ 884. Bail; how proceeded against. In case of failure
to comply with the undertaking, the bail may be proceeded against
by action, and not otherwise.

[Code § 596, without change.]

§ 885. Necessity of certain executions before action
against bail. An action may be brought, as prescribed in the
last section, in a case where the order of arrest could be granted
only by the court, at any time after the bail have failed to comply
with their undertaking. Where the undertaking was given in
an action to recover a chattel, an action may be brought there
upon, at any time after the return, wholly or partly unsatisfied,
of an execution for the delivery of the possession of the chattel,
with respect to which the order of arrest was granted. In any
other case, an action cannot be brought, as prescribed in the last
section, until the following requisites have been complied with:

1. An execution against the property of the defendant must
have been issued to the sheriff of the county in which he
was arrested and returned by that sheriff, wholly or partly
unsatisfied.

9. An execution against the person of the defendant must have
been issued to the same sheriff and by him returned, not less
than fifteen days after its receipt, to the effect that the defendant
could not be found within his county.

[Code § 597, without change.]
Crvin Practice Act 447

§ 886. Duty of sheriff as to executions. The sheriff must
diligently endeavor to enforce an execution issued and de-
livered to him, as prescribed in the last section, notwithstand-
ing any direction he may receive from the plaintiff or his attorney.

[Code § 598, without change.]

§ 887. Defences in action against bail. In an action
against bail, it is a defence, that an execution against the property
or against the person of the defendant in the original action was
not issued as prescribed in section [five hundred and ninety-seven]
eight hundred and eighty-five of this act; or that it was not issued
in sufficient time to enable the sheriff to enforce it; or that a direc-
tion was given, or other fraudulent or collusive means were used,
by the plaintiff or his attorney to prevent the service thereof.

[Code § 599, without change.]

§ 888. Relief of bail where principal is imprisoned on
criminal charge. If the defendant in the original action,
after his discharge upon bail, is imprisoned, either within or
without the state, upon a criminal charge, or a conviction of a
criminal offence, the court, in which an action against the bail
is pending, may make such an order for the relief of the bail as
justice requires, before the expiration of the time to answer
and upon uotice to the adverse party[, make such an order for
the relief of the bail, as justice requires].

[Code § 600, without change.]

§ 889. Exoneration of bail. Except in an action to
recover a chattel, the bail must be exonerated where either of the
following events occurs before the expiration of the time to
answer in an action against them:

1. The death of the original defendant.

2. His legal discharge from the obligation to render himself
amenable to the process, direction or proceedings, with respect
to which the undertaking of the bail was made.

3. His surrender to the sheriff of the county where he was
arrested, as prescribed in this article.

Where either event occurs after the commencement of the action
against the bail, the court [may], in its discretion, may impose
the payment of the plaintifi’s costs and expenses incurred after
the return of the execution against the person, as a condition of
448 Revorr or Jornr Leqisuative CoMMITrEE

allowing the exoneration. Aud the court [may], by an order,
made upon notice to the adverse party, may grant such further
time as it deems just, after answer, for the surrender of the orig-
inal defendant. In that case, his surrender, within the time so
granted, has the same effect as if it had been made before answer.

[Code § 601, without change.]

ARTICLE 52

INJUNCTION ; GRANTING AND SERVICE OF
THE ORDER :

Section 890. Temporary injunction by order.

891. Injunction, when the right thereto depends upon
the nature of the action.

892. Injunction, when the right thereto depends upon
extrinsic facts.

893. Restrictions upon injunction to restrain state
officers.

894. Judge’s order enforceable as court order; powers of
appellate division.

895. Proof to procure injunction.

896. Provision as to notice; injunction pending an ap-
plication.

897. Service of order.

§ 890. Temporary injunction by order. The writ of
injunction has been abolished. A temporary injunction may be
granted by order, as prescribed in this article.

[Code § 602, without change of substance. ]

§ 891. Injunction, when the right thereto depends
upon the nature of the action. Where it appears from the com-
plaint that the plaintiff demands and is entitled to a judgment
against the defendant restraining the commission or continuance
of an act, the commission or continuance of which during the
pendency of the action would produce injury to the plaintiff, an
injunction order may be granted to restrain it. The case provided
for in this section is described in this act as a case where the
right to an injunction depends upon the nature of the action.

[Code § 603, without change.]
Crvit Practice Act 449

§ 892. Injunction, when the right thereto depends upon
extrinsic facts. In either of the following cases an injune-
tion order may also be granted in an action:

1. Where it appearel’, by affidavit, J that the defendant, during
the pendency of the action, is doing or procuring or suffering to
be done, or threatens, or is about to do, or to procure or suffer
to be done, an act in ‘Miolation of the plaintif’s rights respecting
the subject of the action and tending to render the judgment
ineffectual, an injunction order may he granted to restrain him
therefrom.

2. Where it appears [by afidavit,]] that the defendant during
the pendency of the action threatens or is about to remove or
to dispose of his property, with intent to defraud the plaintiff,
an injunction order may be granted to restrain the removal or
disposition.

[Code § 604, amended as indicated. The words “by affidavit” are elimi-

nated because the mode of proving necessary facts, upon applying for any
provisional remedy, is covered by a general section.]

§ 893. Restrictions upon injunction to restrain state
officers. Where a duty is imposed by statute upon a state officer
or board of state officers, an injunction order to restrain him.or
them, or a person employed by him or them, from the perform-
ance of that duty, or to prevent the execution of the statute, shall
not be granted except by the supreme court at a term thereof
sitting in the department in which the officer or board is located,
or the duty is required to be performed; and upon notice of the
application therefor to the officer, board or other person to be
restrained.

[Code § 605, without change. This section constitutes one of the excep-
tions referred to in the general provision authorizing a provisional remedy
to be granted by a judge, out of court, and the general provision authorizing
the granting of the remedy without notice. The general provisions referred
to are, in terms, subject to such exceptions.]

§ 894. Judge’s order enforcible as court order; powers
of appellate division. [Except where it is otherwise specially
prescribed by law, anJ An injunction order [may be granted by
the court in which the action is brought. or by a judge thereof,
or by any county judge; and where it is] granted by a iudge[,
it] may be enforced as the order of the court. An injunction
order which may be modified or vacated by the appellate division

15
450 Report or Joint LecisuativeE ComMMITTEE

may [also] be granted or continued by the appellate division, or
a justice thereof, pending appeal to that court or to the court
of appeals from an order or judgment denying or vacating an
injunction.

[Code § 606, amended as indicated. The part which states by whom the
order may be granted generally is eliminated because it is covered by a gen-
eral provision relating to provisional remedies. ]

§ 895. Proof to procure injunction. The order may be
granted[[, where it appears to the court or judge, by the affidavit
of the plaintiff, or any other person, upon proof that sufficient
grounds exist therefor.

[Code § 607, amended as indicated. The amendment is to conform the sec-
tion to the general provision that proof shall be by affidavit and such other
written evidence as the rules may prescribe.]

§ 896. Provision as to notice; injunction pending an appli-
cation. The order may be granted upon or without
notice, in the discretion of the court or judge, unless the defend-
ant has answered; in which case it can be granted only upon
notice or an order to show cause. Where an application for an
injunction is made upon notice or an order to show cause, either
before or after answer, the court or judge may enjoin the defend-
ant until the hearing and decision of the application.

[Code § 609, without change. This section constitutes one of the excep-
tions referred to in the general provision authorizing the granting of a

provisional remedy without notice. The exception is saved by a clause of
the general provision.]

§ 897. Service of order. [The injunction order must
briefly recite the grounds for the injunction.] Where [it] the
injunction order is granted by the court, it must be served by
delivering a certified copy thereof; where it is granted by a judge.
it must be served by showing the original order and delivering a
copy thereof. Service of the order upon a corporation may be
made as prescribed [in this act,] by law for making personal
service of a summons upon a corporation. Copies of the papers
upon which the order was granted must be delivered with the
copy of the order.

[Code § 610, amended as indicated. The eliminated first sentence is cov-

ered by a general provision relating to arrest, attachment and injunction
generally.]
Civit Practicr Acr 451

ARTICLE 53
INJUNCTION ; SECURITY

Section 898. Terms of undertaking on staying proceedings in an
action before trial.
899. Security to stay proceedings after trial and before
judgment.
900. Security to stay proceedings after judgment.
901. Payment over of money deposited.
902. Cancellation of undertaking of successful party.
903. Terms of undertaking on staying proceedings after
verdict in ejectment or dower.
904. Damages in ejectment or dower to include waste.
905. Undertaking in lieu of deposit.
906. Security for injunction to stay proceedings on
ground of fraud.
907. Security generally, to, obtain injunction order.
908. Damages; how ascertained.
09. Damages sustained by a third person.
_910. Action on the undertaking.

§ 898. Terms of undertaking, on staying proceedings in
an action before trial. [An injunction order shall not be
granted,] The undertaking to secure the party enjoined, where
the injunction order is to stay the trial of an action in which the
complaint demands judgment for a sum of money only, after
issue has been joined therein, [unless the party applying therefor
gives an undertaking to the party enjoined, with sufficient
sureties, } shall be to the effect that [he] the party applying for
the order will pay to the party enjoined or his representative
all damages and costs which may be recovered by him in the
action stayed by the injunction, not exceeding a sum specified
in the undertaking, and also all damages and costs that may be
awarded to him in the action in which the injunction order is
granted.

[Code § 611, amended as indicated. The amendment is to conform to a
general section, relating to provisional remedies, which requires security in
all cases where it is not dispensed with by statute, leaving only the terms
of the undertaking to be defined in the provisions relating to each particular
remedy.]
6
452 Reporr or Jornt Legistative ComMITTER

§ 899. Security to stay proceedings after trial and before
judgment. An injunction order shall not be granted, to stay
proceedings in an action specified in the last section, after ver-
dict, report or decision, and before final judgment thereupon,
unless a sum of money sufficient to cover the sum awarded by the
verdict, report or decision and the costs of the action, is first
paid by the party applying for the injunction into the court in
which his action is commenced or an undertaking [for the pay-
ment thereof, with interest,J is given in liew thereof, as herein-
after prescribed in this article.

[Code § 612, without change of substance.]

§ 900. Security to stay proceedings after judgment.
An injunction order shall not be granted to stay proceedings upon
a judgment for a sum of money unless the following requisites
are complied with by the party applying therefor:

1. The full amount of the judgment, including interest and
costs, must be paid by him into the court in which his action is
commenced; or an undertaking in lieu thereof must be given, as
hereinafter prescribed in this article.

9. He must also give an undertaking, with sufficient sureties,
to pay to the party enjoined, all damages and costs which may
be awarded to him by the court in the action in which the injunc-
tion order is granted, not exceeding a sum specified in the under-
taking.

[Code § 613, without change of substance. ]

§ 901. Payment over of money deposited. Money paid
into court, as prescribed in the last two sections, may be paid over,
by the direction of the court, to the party whose proceedings are
stayed, upon his giving an undertaking to the people of the state,
with sufficient sureties, in a sum fixed by the court, to pay the
money and interest, or any part thereof, as directed in the order
or judgment of the court.

[Code § 614, without change. ]

§ 902. Cancellation of undertaking of successful party.
Where money so paid into court has been paid over to the
party whose proceedings are stayed, if the final decision of the
action in which the injunction order is granted is against the
party obtaining it, the court must give such directions as justice
Crvit Practice Act 453

requires, with respect to cancelling the undertaking given by the
successful party; making perpetual the injunction staying collec-
‘tion of judgment; and requiring the judgment to be discharged
of record.

[Code § 615, without change.]

§ 903. Terms of undertaking on staying proceedings after
verdict in ejectment or dower. [An injunction order
shall not be granted,J The undertaking, to secure the parti
enjoined, where the injunction order is to stay proceedings in an
action of ejectment, or for dower, after verdict, report or decision,
[unless the party applying therefor gives an undertaking, with
sufficient sureties, to shall be to the effect that the party apply-
ing for the order will pay to the party enjoined, or his repre-
sentative, all damages and costs, not exceeding a sum specified in
the undertaking, which may be awarded to him in the action
wherein the injunction was granted.

[Code § 616, amended as indicated. The amendment is to conform to the
general section, relating to provisional remedies, which requires security in
all cases where it is not dispensed with by statute, leaving only the terms

of the undertaking to be defined in the provisions relating to each particular
remedy. ]

§ 904. Damages in ejectment or dower to include waste.
Where an undertaking is given, as prescribed in the last
section, the damages to be paid upon the vacating of the
injunction order, or the decision of the action against the party
obtaining it, include, not oniy the reasonable rents and profits
of the real property recovered by the verdict, report or decision,
but all waste committed upon the property after the granting of
the injunction.

[Code § 617, without change. ]

§ 905. Undertaking in lieu of deposit. In a case where
money is required hy the foregoing sections of this article to be
paid into court, the court or judge may dispense with the
payment, and may require the party to give, in lieu thereof, an
undertaking, with two or more sureties, to pay the sum specified,
with interest, as directed by the court. If an undertaking is
required, in addition to the deposit, both undertakings may be
contained in the same instrument, at the election of the party
applying for the. injunction.

[Code § 618, without change. ]
Lt zs
454 Reporr or Jormnr Leaisuative CoMMITTEE

§ 906. Security for injunction to stay proceedings on
ground of fraud, Jf the injunction order applied for is to stay
proceedings in another action on the ground that-a judgment,
verdict, report or decision therein was obtained by actual fraud,
the court or judge may allow the party applying for the order to
give an undertaking to the effect, and executed, as prescribed in

_ the next section, in lieu of any other undertaking or any deposit.

[Code § 619, rewritten. The statute from which Code § 619 was derived
(R. S., pt. 3, ch. 1, tit. 2, art. 5, § 147) permitted the chancellor to dis-
pense with security absolutely, where the injunction was to stay proceed-
ings on the ground of fraud. There was an attempt, by Code § 619, to change
this; but the language leaves a doubt as to whether the plaintiff could make
a deposit, instead of giving an undertaking, even if he so desired. The
reference in Code § 619 to the “next section” (§ 620) also is ambiguous,
because § 620 does not apply to a case where security is “dispensed with.”
_The Committee has attempted to express the purpose of § 619.]

§ 907. Security generally, to obtain injunction order.
Except in the cases specified in sections eight hundred and ninety-
eight, nine hundred, nine hundred and three, nine hundred and
five, or where special provision is not [otherwise] made by law for
the security to be given upon an injunction order, [the party ap-
plying therefor must give an undertaking, the undertaking to be
gwen by a party applying for an injunction order, may be executed
by him, or by one or more sureties, as the court or judge directs,
and shall be to the effect that the plaintiff will pay to the party en-
joined, such damages, not exceeding a sum, specified in the under-
taking, as he may sustain by reason of the injunction, if the court
finally decides that the plaintiff was not entitled thereto.

[Code § 620, amended without changing the effect, except to eliminate the
direct statement that security must be given. The giving of security for

obtaining any of the three provisional remedies of arrest, injunction and
attachment, is required by a general section. ]

§ 908. Damages; how ascertained. The damages sustained
by reason of an injunction may be ascertained and de
termined by the court, or by a referee appointed by the court,
or by a writ of inquiry, or otherwise, as the court shall direct ; and
the decision of the court thereupon, or an order confirming the
report of the referee, is conclusive as to the amount of those
damages, upon all the persons who have executed the undertaking,
unless it is reversed upon appeal. The court [may], in its disere-
tion, may direct that the sureties have notice of the hearing or of
Civin Pracrics Act 455

an appeal, and may prescribe the time and manner of giving them
notice.

[Code § 623, without change.]

§ 909. Damages sustained by a third person. Where
the defendant enjoined was an officer of a corporation, or joint-
stock association, or a bailee, agent, trustee or other representa-
tive of another, and the damages sustained by him are less than
the sum specified in the undertaking, the court or the referee may
also separately ascertain and determine the damages sustained
by reason of the injunction, by the corporation, association, or
person, whom the defendant represents, to an amount not exceed-
ing the surplus of the sum specified in the undertaking; and those
damages may be recovered in a separate action brought as pre
scribed in the next section.

[Code § 624, without change.]

§ 910. Action on the undertaking. Where the damages have
been ascertained by the decision of the court, or the
confirmation of a referee’s report, as prescribed in the last two
sections, any person entitled to the benefit of an undertaking
[executed] given to obtain an injunction order or on account of
such an order, pursuant to the provisions of, or referred to in, this
[title] article, may bring an action thereon without further leave
of the court.

[Code § 625, without change of substance.]

ARTICLE 54

INJUNCTION ; VACATING OR MODIFYING THE
ORDER

Section 911. Application to vacate or modify without notice.
912. Application to vacate or modify upon notice.
913. When prior motion not to prejudice subsequent
application.
914. New undertaking.
915. Effect of verified answer.

§ 911. Application to vacate or modify without notice.
Where the injunction order was granted without notice,
456 Report or Jornt Lugistativs ComMMITTEE

‘the party enjoined may apply, upon the papers upon which it
was granted, for an order vacating or modifying the injunction
order. Such an application may be made, without notice, to the
judge or justice who granted the order, or who held the term of
the court where it was granted, or to a term of the appellate
division of the supreme court. It cannot be made without notice,
to any other judge, justice or term, unless the applicant produces
proof, by affidavit, that, by reason of the absence or other dis-
ability of the judge or justice who granted the order, the applica-
tion cannot be made to him, and that the applicant will be exposed
to great injury by the delay required for an application upon
notice. The affidavit must be filed with the clerk; and a copy
thereof, and of the order vacating or modifying the injunction
order must be served upon the plaintiff’s attorney before that
order takes effect.

[Code § 626, without change.]

§ 912. Application to vacate or modify upon _ notice.
Where the injunction order was granted without notice, or where
it was granted upon notice, with leave to apply to vacate or
modify it, the party enjoined may apply, upon notice, to the
judge who granted it, or to the court, at a term where a con-
tested motion in the action may be heard, for an order, vacating
or modifying the injunction order. Such an application may be
founded upon the papers upon which the injunction was granted ;
or upon proof, [by affidavit,] on the part of the defendant; or
both. Where it is founded upon proof on the part of the defend-
ant, it may be opposed as a matter of course by new proof [by
affidavit,] on the part of the plaintiff tending to sustain the
injunction.

[Code § 627, amended as indicated. The words “by affidavit” are elimi-
nated, to afford an opportunity for the adoption of « rule permitting other
written evidence. See general section on proof in connection with the three
remedies of arrest, injunction and attachment. The words “as a matter of
course” are inserted to insure a construction that will authorize the court

to permit new proof by plaintiff, even where the application to vacate is
founded only on the original papers. See general section on new proof.]

§ 913. When prior motion not to prejudice subsequent
application. The granting or denial of an application, made as
prescribed in the last section, founded only upon the papers upon
Crviz Practice Act 457

which the injunction order was granted, does not prejudice a
subsequent application, seasonably made, founded upon
proof [by affidavit,] on the part of the defendant. [And t] The
granting or denial of either application does not prejudice a
subsequent application, seasonably made, founded upon the
failure of a complaint, which had not been made at the time
of the former application, to set forth a cause of action sufficient
to entitle the plaintiff to the injunction order, upon one or more
grounds recited therein.

(Code § 628, without change except to eliminate the word's “by affidavit.”
The reason for that change is the same as for similar change in the preced-
ing section, explained in the note thereto.]

§ 914. New undertaking. Upon the hearing of an appli-
cation, upon notice, to vacate or modify an injunction order,
the court or judge may require a new undertaking, in the same
or in a different sum, to be given by the plaintiff, with the like
sureties and to the like effect as upon granting an original order.
The persons executing the new undertaking become liable thereon
as if they had executed it upon the granting of the original order.
The persons who executed the original undertaking remain lable
thereon until the new undertaking is given and approved, and no
longer. Upon such hearing the court or judge [may where], zf the
alleged wrong or injury is not irreparable and is capable of being
adequately compensated for in money, may vacate the injunction
order upon the defendant’s executing an undertaking in such form
and amount and with such sureties as the court or judge shall
direct, conditioned to indemnify the plaintiff against any loss
sustained by reason of vacating such injunction order.

[Code § 629, without change.]

§ 915. Effect of verified answer. Upon the hearing of a
contested application for an injunction order, or to vacate or
modify such an order, a verified answer has the effect only of an

affidavit.

[Code § 630, without change.]
458 Report or Jormnt Leaistative CoMMITTEE

ARTICLE 55

ATTACHMENT; WHEN ALLOWED; OBTAINING
WARRANT

Section 916. In what actions attachment of property may be had.

917. What must be shown to procure warrant of attach-
ment.

918. Warrant in action for peculation and deceit.

919. Service of summons, if warrant previously granted.

920. Papers to be filed.

921. Terms of undertaking on obtaining warrant.

922. Security not required in certain actions for pecula-
tion and deceit.

923. Issuance and attestation of warrant.

924. Contents of warrant; to whom directed.

925. Validity of undertaking.

§ 916. In what actions attachment of property may be
had. A warrant of attachment against the property of one or
more. defendants in an action may be granted upon the appli-
cation of the plaintiff, as specified in the next section, where the
action is to recover a sum of money only, as damages for one
or more of the following causes:

1. Breach of contract, express or implied, other than a con-
tract to marry.

2. Wrongful conversion of personal property.

3. An injury to person or property in consequence of negli-
gence, fraud or other wrongful act.

4. A wrongful act, neglect or default by which the decedent’s
death was caused, when the cause of action arose in this state
before or after the passage of this act and the action is brought
by an executor or administrator against a natural person who,
or a corporation which, would have been liable to an action in
favor of the decedent by reason thereof if death had not ensued
[as prescribed by section nineteen hundred and two of this act].

[Code § 635, without change. ]

§ 917. What must be shown to procure warrant of attach-
ment. To entitle the plaintiff to such a warrant, he must
Crvit Practice Act 459

show[[, by affidavit, to the satisfaction of the judge granting the
same, as follows: 1.9] that [one of the causes] a cause of action
specified in the last section exists against the defendant[.], and,
[If] cf the action is to recover damages for breach of contract,
{the affidavit must show] that the plaintiff is entitled to recover
a stated sum [stated therein], over and above all counterclaims
known to him. He must also show [2. That] that the defendant

1. Is either a foreign corporation or not a resident of the state;
or

2. If [he is] a natural person and a resident of the state, [that
he] has departed therefrom with intent to defraud his creditors
or to avoid the service of a summons, or keeps himself concealed
therein with the like intent; or

8. If {the defendant is] a natural person or [a] domestic
corporation, [that he or it] has removed or is about to remove
property from the state with intent to defraud his or its credit-
ors[ ;J, or has assigned, disposed of or secreted, or is about to
assign, dispose of or secrete property with the like intent; or

4. [Where, for the purpose of procuring credit or the exten-
sion of credit, the defendant h] Has made a false statement in
writing, under his own hand or signature, or under the hand or
signature of a duly authorized agent made with his knowledge
and acquiescence, as to his financial responsibility or standing, for
the purpose of procuring credit or the extension of credit; or

5. [Where the defendant, being] Jf an adult and a resident
of the state, has been continuously without the state [of New
York] for more than six months next before the granting of the
order of publication of the summons against him and has not
made [a] the designation, provided for by statute, of a person
upon whom to serve a summons in his behalf [as prescribed in
section four hundred and thirty of this act;], or a designation so
made no longer remains in force[[ ;]. or service upon the person
so designated cannot be made within the state after diligent effort.

[Code § 636, omitting provision that the required proof be made by affi-
davit. The omitted portion is covered elsewhere by a section relating to
proof upon application for any provisional remedy.]

§ 918. Warrant in action for peculation and deceit. A
warrant of attachment against the property of one or more
defendants in an action may also be granted, upon the applica-
tion of the plaintiff, where the complaint demands judgment for
a sum of money only; and it appears[[, by affidavit,] that the
460 Rerort or Joint Lueistative CoMMITTEE

action is brought to recover money, funds, credits, or other prop-
erty, held or owned by the state, or held or owned, officially or
otherwise, for or in behalf of a public governmental interest, by
a municipal or other public corporation, board, officer, custodian,
agency, or agent, of the state, or of a city, county, town, village, or
other division, subdivision, department, or portion of the state,
which the defendant [has], without right, has obtained, received,
converted or disposed of; cr in the obtaining, reception, payment,
conversion or disposition of which, without right, he has aided
or abetted; or to recover damages for so obtaining, receiving, pay-
ing, converting or disposing of ihe same; or the aiding or abet-
ting thereof ; or in an action in favor of a private person or corpo-
ration brought to recover damages for an injury to personal prop-
erty where the liability arose, in whole or in part, in consequence
of the false statements of the defendant as to his responsibility or
credit, in writing, under the hand or signature of the defendant
or his authorized agent, made with his knowledge and acquiescence.
In order to entitle the plaintiff to a warrant of attachment, in the
case specified in this section, he must show [by affidavit, to the
satisfaction of the judge granting it,] that a sufficient cause of

action exists against the defendant for a stated sum [stated in
the affidavit].

[Code § 637, omitting provision that the proof be by affidavit. The omitted
portion is covered elsewhere by a section relating to proof upon application
for any provisional remedy.]

§ 919. Service of summons, if warrant previously
granted. [The warrant may be granted by a judge of the court,
or by any county judge, to accompany the summons, or at any
time after the commencement of the action, and before final judg-
ment therein.] If the warrant be granted before the summons ts
served, personal service of the summons must be made wpon the
defendant against whose property the warrant is granted, within
thirty days after the granting thereof; or else before the expira-
tion of the same time, service of the summons by publication
must be commenced, or service thereof must be made without
the state, pursuant to an order obtained therefor, as prescribed
[in this act] by law; and if publication has been, or is there
after commenced, the service must be made complete by the con-
tinuance thereof.

[Code § 638, amended as indicated. The first sentence is eliminated, as
covered by a general section relating to arrest, injunction and attachment.]
“Crvi, Practice Act 461

§ 920. Papers to be filed. The plaintiff procuring the
warrant must[, within ten days after the granting thereof,] cause
the affidavits and papers comprising the proof upon which it was
granted to be filed in the office of the clerk, within ten days after
the granting thereof.

[Code § 639, amended to imply that a rule may be adopted authorizing
written evidence other than affidavits, under the general section relating to
proof.]

§ 921. Terms of undertaking on obtaining warrant. The
[iudge, before granting the warrant, must require a written]
undertaking to be given on the part of the plaintiff, [with
sufficient sureties, § before the granting of the warrant, shail be
to the effect that if the defendant recovers judgment, or if the
warrant is vacated, the plaintiff will pay all costs which may be
awarded to the defendant and all damages which he may sustain
by reason of the attachment, not exceeding the sum specified in
the undertaking, which must be at least two hundred and fifty
dollars. [But this section does not apply to a ease, where the
action is brought for a cause specified in section 637 of this act,
or where it is specially prescribed by law that security may be
dispensed with, or where the security to be given is specially
regulated by law. J

[Code § 640, amended as indicated. The requirement that security be
given is in a general section, applying to arrest, injunction and attachment.
The last sentence of section 640 is covered by such general section and by a
special section which follows this.]

§ 922. Security mot required in certain actions for
peculation and deceit. No security on the part of the plaintiff
shall be required upon the granting of a warrant of attachment
where the action is brought for a cause specified in section nine
hundred and eighteen of this act.

[Code § 640, part of last sentence. The cause of action referred to is one
specified in present Code § 637.]

§ 923. Issuance and attestation of warrant. The manner of
attesting and issuing the warrant, whether granted by the court
or a judge, may be regulated by rules.

[New. Substitute for part of first sentence of Code § 641. By a general
section, the power to grant the warrant is extended to the court. The Com-

formal court order, where a warrant is granted by the court.]
mittee has proposed a rule which will obviate the necessity of requiring a
462 Revorr or Jorvt Leaistarive ComMirreE

§ 924. Contents of warrant; to whom directed. The
warrant [must be subscribed by the judge and the plaintiff's
attorney, and must briefly recite the ground of the attachment.
It] may be directed either to the sheriff of a particular county, or,
generally, to the sheriff of any county. It must require the sheriff
to attach and safely, keep, so much of the property within his
county, which the defendant has, or which he may have, at any
time before final judgment in the action, as will satisfy the
plaintiff’s demand, with costs and expenses. The amount of the
plaintiffs demand must be specified in the warrant, as stated in
the [affidavit] proofs on which the warrant was granted.
Warrants may be issued at the same time to sheriffs of different
counties.

[Code § 641, amended as indicated. The part eliminated is covered by a
rule proposed by the committee, relating to attestation and issuance of the
warrant. The contents of the warrant might appropriately be left to rules,

but the Committee retains it as statute, because the warrant is a mandate-
similar to execution, the contents of which are prescribed by statute.]

§ 925. Validity of undertaking. Jt is not a defence to an
action upon an undertaking given upon granting a warrant of
attachment, that the warrant was granted improperly, for want
of jurisdiction, or for any other cause.

[Code § 642, without change.]

ARTICLE 56
ATTACHMENT; EXECUTING WARRANT

Section 926. Manner of attaching property and duties of sheriff,

generally.

927. What interest in real property may be attached.

928. Attachment of unpaid subscription to foreign cor-
poration.

929. Levy upon interest in shares or honds.

930. Levy upon cause of action, evidence of debt or claim
to estate.

931. Method of making levy.

932. Certificate of defendant’s interest to be furnished.

933. Examination of person refusing certificate.
Section 934

935.
936.
937.
938.
939.
940.
941.
942.
948.

944.
945.
946.

947.

948.
949.

950.
951.
952.

953.
954.
955.
956.
957.
958.

959.

960.
961.

Crviz Practics Act 463

. Transportation of goods in vessel without interrup-
tion, notwithstanding warrant; exceptions.

Inventory.

Actions and special proceedings by sheriff.

Perishable goods and animals to be sold.

Claim of property; how tried.

Proceedings if claimant succeeds.

Finding not to prejudice right of claimant.

Discharge of personal property from attachment.

Proceedings on claim to domestic vessel.

Appraisers of vessel to be sworn; valuation to be
returned.

Undertaking to be given by claimant of vessel.

When vessel to be discharged.

When undertaking for discharge of vessel to be
sued.

Defence in action upon undertaking for discharge
of vessel; recovery.

Valuation of foreign vessel.

Undertaking by plaintiff after valuation of foreign
vessel,

When foreign vessel to be discharged.

Terms on which debtor may claim foreign vessel.

Sale of foreign vessel, for lapse of claimant’s remedy
after undertaking by plaintiff.

Sale of attached vessel, domestic or foreign.

Sheriff to keep property.

Order for payment into court or deposit of money.

Delivery or release of surplus money or property.

Action by plaintiff and sheriff jointly.

Procuring leave to unite with sheriff in bringing
suit.

Joinder of plaintiff with sheriff after action is
begun.

Court control of action by plaintiff and sheriff.
Return of inventory; how enforced.

§ 926. Manner of attaching property and duties of sheriff,

generally.

The sheriff must [immediately] execute the war-

rant immediately, by levying upon so much of the personal and
real property of the defendant, within his county, not exempt from

levy and sal

e by virtue of an execution, as will satisfy the plain-
464 Rerort or Joint LuGisLarivE CoMMITTEE

tiff’s demand, with the costs and expenses. He must take into his
custody all books of account, vouchers, and other papers, relating
to the personal property attached, and all evidences of the defend-
ant’s title to the real property. attached, which he must safely
keep, to be disposed of as prescribed [in this title] by thas act.
The sheriff; to whom a warrant of attachment is delivered, may
levy, from time to time, and as often as is necessary, until the
amount for which it was issued has been secured, or final judg-
ment has been rendered in the action, notwithstanding the expira-
tion of his term of office,

(Code § 644, without change.]

-§ 927. What interest in real property may be attached.
The real property which may be levied upon by virtue of a war-
rant of attachment includes any interest in real property, either
vested or not vested, which is capable of being aliened by the
defendant.

[Code § 645, without change.)

§ 928. Attachment of unpaid subscription to foreign
corporation. Under a warrant of attachment against a foreign
corporation, other than a corporation created by or under the laws
of the United States, the sheriff may levy upon the sum remaining
unpaid upon a subscription to the capital stock of the corporation,
made by a person within the county; or upon one or more shares
of stock therein, held by such a person, or transferred by him,
for the purpose of avoiding payment thereof.

[Code § 646, without change.]

§ 929. Levy upon interest in shares or bonds. The rights
or shares which the defendant has in the stock of an associa-
tion or corporation, or in a bond negotiable or otherwise, together
with the interest and profits thereon, may be levied upon; and the
sheriff’s certificate of the sale thereof entitles the purchaser to the
same rights and privileges, with respect thereto, which the defend-
ant had when they were so attached.

[Code § 647, without change.]

§ 930. Levy upon cause of action, evidence of debt or
claim to estate. The attachment may also be levied upon a
Crvin Practice Act 465

eause of action arising upon contract; including a bond, proniis-
sory note, or other instrument for the payment of money only,
negotiable or otherwise, whether past due or yet to become due,
executed by a foreign or domestic government, state, county, pub
lic officer, association, municipal or other corporation, or by a
private person, either within or without the state; which belongs
to the defendant and is found within the county. The levy of
the attachment thereupon is deemed a levy upon, and a seizure
and attachment of, the debt represented thereby. The attachment
may also be levied upon a right or interest, present or future, to
any of the property or estate of a deceased person which may
belong to the defendant and which could be legally assigned by
him as legatee or distributee, whether the same exists by reason
of the provisions of a last will and testament admitted to probate
at the time the attachment is granted, or by operation of the law
in case of the intestacy of the deceased. Levy of the attachmen:
thereupon is deemed a levy upon, and a seizure and attachment
of, the rights and interests of the defendant at the time of such
levy, subject to the rights of the executor, administrator or trustee
of such estate to administer the same according to law.

[Code § 648, without change.]

§ 931. Method of making levy. A levy under a warrant of
attachment must be made as follows:

1. Upon real property, by filing with the clerk of the county
where it is situated, a notice of the attachment, stating the names
of the parties to the action, the amount of the plaintifi’s claim,
as stated in the warrant, and a description of the particular
property levied upon. The notice must be subscribed by the plain-
tiff’s attorney, adding the office address; and must be recorded
and indexed by the clerk, in the same book, in like manner and
with like effect as a notice of the pendency of an action.

2. Upon the personal property capable of manual delivery,
including a bond, promissory note, or other instrument for the
payment of money, by taking the sazue into the sheriffs actual
custody. He [must] thereupon, without delay, must deliver to
the person from whose possession the property is taken, if any, a
copy of the warrant and of the affidavits upon which it was granted.

3. Upon other personal property, by leaving a certified copy of
the warrant, and a notice showing the property attached, with
the person holding the same; or, if it consists of a demand, other
466 Rerorr or Jomwvr LearsiariveE ComMITTEE

than as specified in the last subdivision, with the person against
whom it exists; or, if it consists of a right or share in the stock
of an association or corporation, or interests or profits thereon,
with the president, or other head of the association or corporation,
or the secretary, cashier, or managing agent thereof, or if it con-
sists of a right or interest in an estate of a deceased person aris-
ing under the provisions of a will or under the provisions of law
in case of intestacy, with the executor or trustee under the will,
or the administrator of the estate.

4. Upon property discovered in any action brought as pre-
scribed in subdivision two of section [six hundred and fifty-five]
nine hundred and thirty-six of this act, by entering in the proper
clerk’s office the judgment rendered in said action, and thereafter
levying on said property in the manner prescribed in subdivisions
one, two and three of this section.

[Code § 649, without change.]

§ 932. Certificate of defendant’s interest to be furnished.
Upon the application of a sheriff holding a warrant of attach-
ment, the president or other head of an association or cor-
poration, or the secretary, cashier, or managing agent thereof,
or a debtor of the defendant, or a person holding property, includ-
ing a bond, promissory note, or other instrument for the payment
of money, belonging to the defendant, must furnish to the sheritf
a certificate, under his hand, specifying the rights or number
of shares of the defendant in the stock of the association or
corporation, with all dividends declared or incumbrances thereon ;
or the amount, nature and description of the property held for
the benefit of the defendant, or of the defendant’s interest in
property so held, or of the debt or demand owing to the defendant,
as the case requires.

[Code § 650, without change.]

§ 933. Examination of person refusing certificate. If
a person to whom application is made, as prescribed in the
last section, refuses to give such a certificate; or if it is made to
appear, by affidavit, to the satisfaction of the court or a judge
thereof, or the county judge of the county to which the warrant
is issued, that there is reason to suspect that a certificate given
by him is untrue, or that it fails fully to set forth the facts
required to be shown thereby, the court or judge may make an
Civin Practice Act 467

order directing him to attend at a specified time and at a place
within the county to which the warrant is issued, and submit to
an examination under oath concerning the same. The order
[may], in the discretion of the court or judge, may direct an
appearance before a referee named therein.

[Code § 651, without change.]

§ 934. Transportation of goods in vessel without inter-
ruption, notwithstanding warrant; exceptions. [Except
as otherwise prescribed in the next section, t]] The owner or master
of a vessel on board of which goods of a defendant against whom
a warrant of attachment is issued have been shipped for trans-
portation, without reshipment and transshipment in the state, to
a port or place without the state, may transport and deliver them
according to their destination, notwithstanding the warrant;
unless the plaintiff, his agent or attorney, executes to the owner
or the master of the vessel a written undertaking, with sufficient
sureties, in a sum specified therein, to pay him all expenses,
damages and charges, which may be incurred by him, or to which
he may be subjected, for unloading the goods from the vessel,
and for all necessary detention of the vessel for that purpose.
The undertaking must be approved, with respect to its form, the
sum specified therein and the sufficiency of the sureties, by a judge
or justice of the court, or the county judge of the county wherein
the vessel is situated, or in the city and county of New York,
by a justice of the supreme court. This [The last] section does
not apply where the owner or master before the shipment of the
goods, had actual information of the granting of the warrant, or
where he [has], in any wise, has connived at or been privy to the
shipment thereof for the purpose of screening them from legal
process or of hindering, delaying, or defrauding creditors.

[Code §§ 652 and 653, without change.]

§ 935. Inventory. The sheriff [must], immediately after levy-
ing under a warrant of attachment, must make, with the assistance
of two disinterested freeholders, a description of the real property,
and a just and true inventory of the personal property, upon
which it was levied, and of the books, vouchers, and other papers
t»ken into his custody, stating therein the estimated value of each
parcel of real property attached, or of the interest of the defend-
ant therein, and of each article of personal property, enumerating
468 Rerorr or Jory Lecistative' ComMITTEE

such of the latter as are perishable. The inventory must be signed
by the sheriff and the appraisers ; and [must], within five days
after the levy, must be filed in the office of the clerk of the county
where the property is attached.

[Code § 654, without change.]

§ 936. Actions and special proceedings by sheriff. 1. The
sheriff [must], subject to the direction of the court or judge, must
collect and receive all debts, effects and things in action, attached
by him. He may maintain any action or special proceeding, in
his name or in the name of the defendant, which is necessary
for that purpose or to reduce to his actual possession an article of
personal property, capable of manual delivery, but of which he
has been unable to obtain possession. [And h] He may discon-
tinue such an action or special proceeding at such time and on
such terms as the court or judge directs,

2. Where the summons was served without the state, or by
publication, pursuant to an order obtained for that purpose, as
prescribed [in chapter fifth of this act; by law, and where the
defendant has not appeared in the action, otherwise than specially,
but has made default and before entering final judgment. the
sheriff [may], in aid of such attachment, may maintain an action
against the attachment debtor and any other person or persons, or
against any other person or persons, to compel the discovery of
any thing in action, or other property belonging to the attach-
ment debtor; and of any money, thing in action, or other property
due to him, or held in trust for him, or to prevent the transfer
thereof, or the payment or delivery thereof, to him or any other
person, and the sheriff [may], in aid of such attachment, also may
maintain any other action against the attachment debtor and anv
other person or persons, or against any other person or persons,
which may now be maintained by a judgment creditor in a court of
equity, either before the return of an execution in aid thereof,
or after the return of an execution unsatisfied. The judgment
in any of the above-mentioned actions must provide and direct
that the said property shall be applied bv the sheriff to the
satisfaction of any judgment which the plaintiff may obtain in
the attachment action.

[Code § 655, without change.J

§ 937. Perishable goods and animals to be sold. If prop-
erty attached, other than a vessel, is perishable, the court or judge
Crvit, Practice Act 469

[may], by an order made with or without notice, as the urgency
of the case in its or his opinion requires, may direct the sheriff
to sell it at public auction, and thereupon the sheriff must sell
it accordingly. If it consists of live animals, the same proceed-
ings may be had, but such notice shall be given to the parties to
the action, of the application for the order, as the court or judge
prescribes. The order directing the sale must prescribe the time
and place of the sale, and notice thereof must be given in such
manner and for such time as is prescribed in the order. The
sheriff must retain in his hands the proceeds of the sale, after
deducting his expenses as allowed by the court or judge.

[Code § 656, without change.]

§ 938. Claim of property; how tried. If goods or
effects, other than a vessel, attached as the property of the defend-
ant, are claimed by or in behalf of another person, as his prop-
erty, an affidavit may be made and delivered to the sheriff, in
behalf of such person, at any time while such goods or effects or
the proceeds thereof are in the sheriff’s possession, stating that
he makes such a claim; specifying in whole or in part the prop-
erty to which it relates, and in all cases stating the value of the
property claimed and the damages, if any, over and above such
value, which the claimant will suffer in case such levy is not
released. In that case, the sheriff [may], in his discretion, may
empanel a jury to try the validity of the claim.

[Code § 657, without change.]

§ 939. Proceedings if claimant succeeds. If, by their
inquisition, the jury find[s] the property of the goods or effects
to have been in the claimant at the time of the levy, they must
also determine its value, and the damages above such value as
specified in the last section. Thereupon the officer must forth-
with deliver such goods or effects to him or his agent; unless
the plaintiff gives an undertaking with at least two sufficient
sureties, to the effect that the sureties will indemnify him to the
amount therein specified, not less than twice the value of the
goods and effects and damages as determined by the jury, and
two hundred and fifty dollars in addition thereto, against all
damages, costs and expenses, in an action to be brought against
him by any person, by the claimant, his assignee, or other repre-
sentative, by reason of the levy upon, detention, or sale of any
470 Report or Joint Lugistative CoMMITTEE

of the goods or effects, by virtue of the attachment. If the under-
taking is given, the officer must detain the goods or effects as
the property of the defendant. [Where an undertaking is given
to indemnify t] The sheriff, he must], within two days after
the giving of [said] an undertaking, if any, to indemnify him,
must cause the same to be filed in the office of the court out of
which the attachment was issued, and serve upon the claimant
or his agent, and the attaching creditor or attorney, whose name
is subscribed to the warrant of attachment, a copy of said under-
taking, with a notice of the justification of the sureties thereon.
The justification must take place before a judge of the court out
of which the attachment was issued, at a time to be specified
in the notice, which must [not] be not less than two nor more
than five days after the serving of the said notice. For the pur-
pose of justification, each of the sureties upon the undertaking
must attend before the judge at the time and place mentioned in
the notice, and be examined on oath on the part of the claimant,
or his agent or attorney, touching his sufficiency, in such manner
as the judge, in his discretion, thinks proper. The examination
may be adjourned from day to day until it is completed, but such
adjournment must always be to the next judicial day. If required
by the claimant, his assignee or other representative, the examina-
tion must be reduced to writing and subscribed by the sureties.
If the judge finds the sureties sufficient, he must annex the exam-
ination to the undertaking, endorse his allowance thereon, and
cause the said undertaking, together with the examination of the
sureties, to be filed with the clerk of the court. Thereupon the
sheriff is released and discharged from all liability by reason of
the taking and detention of the property seized. When any such
undertaking shall have been approved and filed, as hereinbefore
provided, the clerk of the court in which the same shall be filed
shall immediately index the same in the general index book in
his office under the title of the suit in which the attachment is
issued.

[Code § 658, without change. ]

§ 940. Finding not to prejudice right of claimant.
If the property is found to be in the defendant, the finding does
not prejudice the right of the claimant to bring an action to
recover the goods or effects or the value thereof.

[Code § 659, without change.]
Crvin Practice Act 471

8 941. Discharge of personal property from attachment.
If goods or effects, other than a vessel, attached as the property
of the defendant, or any portion thereof, are claimed by or in
behalf of another person, such claimant [may], within five days
after the levy of the attachment, may apply to the judge who
granted the warrant, or to the court, for an order to discharge
the attachment, as to the whole or a part of the property attached.
Upon such an application, the claimant must give to the sheriff
an undertaking with at least two sufficient sureties, who must
justify in double the value of the property claimed, as appraised
in the inventory of the property attached. The undertaking musi
be conditioned to the effect that in an action to be brought ou
the undertaking, the claimant will establish that he was the
owner of such goods or effects at the time of the levy thereon;
and that in case of his failure to do so, he will pay to the sheriff
the full value of the property so claimed with interest from the
date thereof together with the costs of the action. Sections [six
hundred and ninety} nine hundred and sixty-nine and [six hun-
dred and ninety-one] nine hundred and seventy shall apply to an
undertaking given as prescribed in this section. Upon such an
undertaking being.given and after justification of the sureties if
required, the court or, judge must make an order discharging the
property so claimed from‘the attachment, upon payment by the
claimant of the sheriff’s fees and necessary disbursements.
Thereupon and upon such paynient, the sheriff must discharge
the same accordingly, notwithstanding that the plaintiff may have
given an undertaking as provided in section [six hundred and
fifty-eight] nine hundred and thirty-nine. The court or judge
[may], upon the application of the plaintiff or of the claim-
ant at any time before the warrant is vacated or annulled,
upon notice to all parties in interest, may direct the sheriff
to commence an action upon the undertaking, upon such terms and
conditions and under such regulations as it or he deems just.
In such an action, the claimant may show, in bar of a recovery,
that he was the owner of the said property attached. If judgment
passes against the claimant, the plaintiff is entitled to recover
the value of the said property with interest from the date of the
undertaking with the costs of the action. Neither the giving of
the undertaking as prescribed in this section, nor the recovery of
any judgment thereon, shall affect in any manner the right, if
any, of the defendant in the attachment action, in or to the prop-
erty discharged from the attachment, nor shall this section be
479 Report or Joint Lueisuative ComMMITTEE

construed as affecting or impairing any other right or remedy
which any person might otherwise have in respect to the property
attached.

[Code § 658-a, without change.]

§ 942. Proceedings on claim to domestic vessel. Where
a vessel belonging to a port or place in the United States,
or a share or interest therein, is attached, the court or judge, on
the application, within thirty days thereafter, of a person clarm-
ing title thereto, or of his agent, must appoint three indifferent
persons to make a valuation thereof.

[Code § 660, without change.]

§ 943. Appraisers of vessel to be sworn; valuation
to be returned. A valuation of a vessel, or of a share, or interest
therein, made as prescribed in this article, must be in writing
and subscribed by the appraisers; each of whom must take and
subscribe an affidavit, annexed thereto, to the effect that the valua-
tion [is], in all respects, 7s just and fair, and that the value of
the vessel, share, or interest, is truly stated therein, according to
the deponent’s belief. The valuation must be immediately
returned to the court or judge; and,. after an undertaking is
given, or after the expiration of the time to give an undertaking,
as prescribed in the next section, it must be delivered to the
sheriff.

[Code § 661, without change.]

§ 944. Undertaking to be given by claimant of vessel.
Within two days after the valuation is returned, the claimant or
his agent may execute an undertaking to the sheriff, with suf-
ficient sureties, approved by the court or judge, who must justify
in twice the appraised value, to the effect that, in an action to be
brought on the undertaking, the claimant will establish that he
was the owner of the vessel, share or interest, at the time of the
levy thereupon; and that, in case of his failure to do so, he will
pay the amount of the valuation, with interest from the date of
the undertaking, to the sheriff; or, if the warrant is vacated or
annulled, to the defendant or his personal representative.

[Code § 662, without change.]
Crvin Practicz Act 473

§ 945. When vessel to be discharged. Upon such an
undertaking being executed and delivered to the sheriff, the court
or judge must make an order directing the vessel or share to be
discharged from the attachment. Thereupon the sheriff must
discharge the same accordingly.

[Code § 663, without change.]

§ 946. When undertaking for discharge of vessel to
be sued. The court or judge [may], upon the application of
either party, at any time before the warrant is vacated or annulled,
may direct the sheriff to commence an action upon the under-
taking, upon such terms and conditions, and under such regula-
tions, between him and the applicant, as it or he deems just.
[And i} /f the warrant of attachment is vacated or annulled, the
defendant in the attachment, his assignee or personal representa-
tive, may commence and maintain an action upon the undertak-
ing, or may be substituted, in place of the sheriff, in an action
pending thereupon.

[Code § 664, without change.]

§ 947. Defense in action upon undertaking for discharge of
vessel; recovery. In such an action, the claimant may show in
bar of a recovery that he was the owner of the vessel, share or
interest, at the time when it was attached. If judgment [passes]
be rendered against him, the plaintiff is entitled to recover the
amount of the valuation with interest from the date of the
undertaking,

[Code § 665, without change. ]

§ 948. Valuation of foreign vessel. Where a foreign vessel or
a share or interest therein is attached, it must be valued as pre
scribed in sections [660] nine hundred and forty-two and [661]
nine hundred and forty-three of this act, upon the application of
a person who makes affidavit to the effect that he is the owner
thereof, or that he is the agent of a person, naming him and his
residence, whom he helieves to be the owner of the vessel, share
or interest attached. Such notice of the application must be given
to the plaintiff as the court or judge deems reasonable.

[Code §§ 666 and 667, without change.]
474. Reporr or Jor Lecisnative CoMMITTEE

§ 949. Undertaking by plaintiff after valuation of
foreign vessel. Within three days after the valuation is returned,
the plaintiff must give to the person in whose behalf the claim is
made an undertaking, with sufficient sureties, approved by the
court or judge, who must justify in twice the appraised value,
to the effect that they will pay such damages as may be recovered
for seizing the vessel, share or interest, in an action brought
against the sheriff, or the plaintiff in the attachment, within three
months from the approval of the undertaking, if it appears therein
that the vessel, share or interest belonged, at the time of attaching
it, to the person in whose behalf the claim is made.

[Code § 668, without change.]

§ 950. When foreign vessel to be discharged. Unless
such an undertaking is given, the court or judge must grant an
order discharging the vessel, share or interest so claimed, from
the attachment; whereupon the sheriff must discharge the same
accordingly.

[Code § 669, without change.]

§ 951. Terms on which debtor may claim foreign
vessel. If, after such an undertaking is given by the plaintiff,
the warrant is vacated or annulled, or the attachment is dis-
charged as to the vessel, share or interest, the defendant or his
agent is entitled to claim the same, or the proceeds thereof, if it
has been sold, only upon his showing, to the satisfaction of the
court or judge, that the undertaking has been discharged; or giv-
ing to the plaintiff an undertaking, with sufficient sureties,
approved by the court or judge, who must justify in twice the
appraised value, to the effect that they will indemnify the plain-
tiff against all charges and expenses in consequence of the under-
taking.

[Code § 670, without change.]

§ 952. Sale of foreign vessel, for lapse of claimant’s
remedy, after undertaking by plaintiff. If the undertaking of
the plaintiff is not discharged, or he is not indemnified, as pre-
seribed in this article, within one month after the defendant
becomes entitled to claim the vessel, share or interest, as so pre-
scribed, it may be sold by the sheriff in whose custody it is,
Civit Practicr Act 475

upon an order of the court or judge; and the proceeds of the sale
must be paid to the persons who executed the undertaking for
their indemnity.

[Code § 671, without change.]

-§ 953. Sale of attached vessel, domestic or foreign.
If a claim is not made by or in behalf of an owner of a domestic
vessel, or of a share or interest therein, within thirty days after
it is attached, or if the proper undertaking is not executed by
the claimant; or if a claim is not made within that time by or
in behalf of the owner of a foreign vessel or of a share or interest
therein; the vessel, share or interest, may be sold by the sheriff,
under an order of the court or judge, upon the application of the
plaintiff, if, in the opinion of the court or judge, a sale is
necessary. Where a share or interest in a vessel, foreign or
domestic, is attached, if the proper claim to it is not made by
or in behalf of an owner thereof within thirty days thereafter, it
may be sold by the sheriff, under an order of the court or judge,
upon the application of a joint owner or his agent.

[Code §§ 672 and 673, without change.]

§ 954. Sheriff to keep property. The sheriff must keep
the property attached by him, or the proceeds of property sold
‘or of a demand collected by him, to answer any judgment that
may be obtained against the defendant in the action.

[Code § 674, without change.]

§ 955. Order for payment into court or deposit of money.
[But t] The court, upon the application of either party to the
action, may direct the sheriff, either before or after the expira-
tion of his term of office, to pay into court the proceeds of a
demand collected or property sold; or to deposit them in a
designated bank or trust company, to be drawn out only upon
the order of the court.

[Code § 675, without change.]

§ 956. Delivery or release of surplus money or prop-
erty. Where the proceeds of the property sold, and the demands
collected by the sheriff, exceed the amount of the plaintiff's
demand, with the costs and expenses, and of all other warrants of
476 Revorr or Jormvt Legistative CoMMITTEE

attachment or executions in the sheriff’s hands chargeable upon
the same; the court, or the judge who granted the warrant, upon
the applieation of the defendant, or of an assignee of, or purchaser
from the defendant, and upon notice to the plaintiff, and the
plaintiffs in the other warrants or executions, may make an order,
at any time during the pendency of the action, [make an order]
directing the sheriff to pay over the surplus to the applicant and to
release from the attachment the remaining real and personal
property attached.

[Code '§ 676, without change.]

§ 957. Action by plaintiff and sheriff jointly. The plaintiff,
by leave of the court or judge, procured as prescribed in the
next section, may bring and maintain, in the name of himself
and the sheriff jointly, by his own attorney, and at his own expense,
any action which, by the provisions of this [title] act, may be
brought by the sheriff, to recover property attached, or the value
thereof, or a demand attached, or upon an undertaking given as
prescribed in this [title] article, by a person other than the plain-
tiff; the plaintiff, in his own name and the sheriff’s jointly, may
also bring and maintain any action which, by the provisions of sub-
division two of section [six hundred and fifty-five] nine hundred
and thirty-six of [article second of] this [title] act, may be
brought by the sheriff. The sheriff must receive the proceeds of
such an action, but he is not liable for the costs or expenses thereof.
Costs may be awarded in such an action against the plaintiff in
the warrant, but not against the sheriff.

‘ [Code § 677, without change.]

§ 958. Procuring leave to unite with sheriff, in
bringing suit. The court or judge must grant leave to bring
such an action, where it appears that due notice of the applica-
tion therefor has been given to the sheriff; but, before doing so,
the court or judge may require that notice of the application be
given to the plaintiff in any other warrant against the same
defendant. And such terms, conditions and regulations may be
imposed, in the order granting leave, as the court or judge thinks
proper, for the due protection of the rights and interests of all
persons interested in the disposition of the proceeds of the action.

[Code § 678, without change.]
Crvit Practice Act 477

§ 959. Joinder of plaintiff with sheriff after action is begun.
Leave [may], in like manner and with like effect, may be
granted to the plaintiff in the warrant, to be joined with the
sheriff, in an action brought by the sheriff, in a case where he
might have procured leave to bring the action, as prescribed in
the last two sections. Upon an application therefor, the court or
judge [may], in a proper case, may require the plaintiff to pro-
vide for the expenses in the action already incurred by the sheriff.
The application must be denied in case of an unreasonable delay in
making it; or where an application was made before the action
was brought and the plaintiff neglected or refused without a
good excuse therefor to comply with the terms, conditions or
regulations, then imposed.

[Code § 679, without change.]

§ 960. Court control of action by plaintiff and sheriff. The
court or judge [may], upon the application of the sheriff, or of
the defendant in the warrant, during the pendency of an action,
brought as prescribed in the last three sections, may direct as to the
conduct, discontinuance or settlement of the same, and as to the
appleation or disposition of the money or property recovered
therein, as justice requires.

[Code § 680, without change.]

§ 961. Return of inventory; how enforced. Upon the
application of either party, and proof of the neglect of the sheriff,
the court or judge [may], by order, may require the sheriff to
return an inventory. Disobedience to such an order may be pun-
ished as a contempt of the court.

[Code § 681, without change.]
478 Report or Jormnt Lecisuative CoMMITTEE

ARTICLE 57

ATTACHMENT; VACATING OR MODIFYING
THE WARRANT

Section 962. Application to vacate or modify warrant, or increase

security.

963. How and to whom application shall be made; new
proof.

964. Limitation as to new proof on application to vacate
or modify.

965. When prior application not to prejudice subsequent
application.

§ 962. Application to vacate or modify warrant, or
increase security. The defendant, or a person who has acquired
a lien upon or interest in his property after it was attached, may
apply. at any time before the actual application of the attached
property or the proceeds thereof to the payment of a judgment
recovered in the action, [apply] to vacate or modify the warrant,
or to increase the security given by the plaintiff, or for one or more
of those forms of relief, together or in the alternative.

[Code § 682, without change.]

§ 963. How and to whom application shall be made;
new proof. An application, specified in the last section, may
be founded only upon the papers upon which the warrant was
granted; in which ease, it must be made to the court, or, if the
warrant was granted by a judge out of court, to the same judge,
in court or out of court, and with or without notice, as he deems
proper. Or it may be founded upon proof [by affidavit] on the
part of the defendant; in which ease, it must be made to the court,
or, if the warrant was granted by a judge out of court, to any
judge of the court, upon noticef[; and]. If founded wholly
or partly wpon proof, it may be opposed, as a matter of course,
by new proof [by affidavit, on the part of the plaintiff.

[Code § 683, part, amended as indicated. The concluding portion of

§ 683, omitted here, is covered by the next section. The elimination of the
words “by affidavit,” is on account of a general section relating to proof,

 
Crvit Practicr Act 479

upon vacating any provisional remedy. The insertion of the words ‘as a
matter of course” is to insure a liberal construction of the provision, supra,
which authorizes the court to allow new proof by plaintiff, even where the
motion to vacate is made only on the original papers. The section (683)
as here amended conforms to the procedure upon motion to vacate an order
of arrest.]

§ 964. Limitation as to new proof on application to
vacate or modify. When new proof is permissible as a matter of
course, under the preceding section, in opposition to an appli-
cation to vacate or modify the warrant, the court or judge may
limit such proof to matters tending to sustain a ground for the
attachment recited in the warrant, when the substantial rights of
the defendant shall so require; provided, however, that if the
defendant relies upon a discharge in bankruptcy, or discharge or
exoneration in insolvent proceedings, the plaintiff shall be per-
mitted to show any matter in avoidance thereof which he might
show upon the trial.

[Code § 683, part, amended. The essential change is that the plaintiff,
opposing a motion to vacate on affidavits, is not absolutely prevented from
offering proof to sustain the warrant where the recitals in the warrant
are also defective. The proposed section gives the court or judge a judicial
discretion to admit any such proof and then, pursuant to a general section of
“ provisional remedies,” to permit the warrant and its recitals to be
amended.]

§ 965. When prior application not to prejudice subse-
quent application. The denial of [such] an application to
vacate or modify the warrant, founded on the original papers or
new proof, or both, does not prejudice a subsequent application.
seasonably made, founded upon the failure of a complaint, which
had not been filed or served at the time of the former application,
to set forth any of the causes of action mentioned in sections
[635 and section 637] nine hundred and sixteen or nine hundred
and eighteen of this act.

[Code § 686, amended as indicated.]
480 Report or Jornt LugistativE CoMMITTEE

ARTICLE 58
ATTACHMENT; DISCHARGE

Section 966. Application for discharge of attachment.
967. Undertaking upon application for discharge.
968. Application for discharge by one of several defend-
ants.
969. Sureties to justify if required.
970. Sheriff may retain property until justification.
971. Discharge of attachment of vessel.
972. Discharge of attachment on application of partner.
973. Notice to plaintiff of application for discharge.

§ 966. Application for discharge of attachment. The defend-
ant [may], at any time after he has appeared in the action, may
apply to the judge who granted the warrant, or to the court, for
an order to discharge the attachment as to the whole or a part
of the property attached.

[Code § 687, without change.]

§ 967. Undertaking upon application for discharge. Upon
such an appleation, the defendant must give an undertaking, with at
least two sufficient sureties, to the effect that, on demand, he will[,
on demand, pay to the plaintiff the amount of any judgment
which may be recovered in the action against him, not exceeding
a sum specified in the undertaking, with interest. The sum so
specified must be at least equal to the amount of the plaintiff’s
demand as [specified in his affidavit ;} stated in his proofs, or,
at the option of the defendant, equal to the appraised value,
according to the inventory, of the property attached; or, if the
application is to discharge the attachment, as to a part only of the
property attached, to the appraised value of that portion. Upon
such application being made after final judgment, the defendant
must give the security required to perfect an appeal to the court
of appeals from a final judgment, of the same amount or to the
same effect, and to stay the execution thereof.

[Code § 688, without change of substance.]
Civit Practice Acr 481

§ 968. Application for discharge by one of several
defendants. Where there are two or more defendants, and an
application is made, as prescribed in the last two sections, by one
or more, but not by all of them, the undertaking must provide
for the payment of any judgment which may be recovered against
any of the defendants in the action, unless the applicant makes
proof, [by aftidavit,J to the satisfaction of the court or judge,
that the property with respect to which the application is made
belongs to him separately; in which case, the undertaking must
provide for the payment of any judgment which may be recovered
in the action against the applicant, either alone, or jointly with
any other defendant. Where an application is made, as prescribed
in this section, at least two days’ notice thereof, with a copy of the
[afiidavit,] papers on which the application is founded, must be
served upon the plaintifi’s attorney, who may oppose the applica-
tion by proof, by affidavit, that one or more of the other defend-
ants own or have an interest in the property.

[Code § 689, without change of substance.]

$ 969. Sureties to justify if required. An undertak-
ing, given as prescribed in the last two sections, must be forth-
with filed with the clerk. A copy thereof, with a notice of the
filing, must be forthwith served upon the plaintifi’s attorney ;
who [may], within three days thereafter, may give notice to the
sheriff that he excepts to the sufficiency of the sureties. Thereupon
the sureties must justify upon the like notice and in like manner as
bail upon an arrest; or a new undertaking must be given, with
new sureties, who must justify in like manner. If the plaintiff
does not except, as prescribed in this section, he is deemed to have
waived all objection to the sureties.

[Code § 690, without change.]

§ 970. Sheriff may retain property until justification.
The sheriff is responsible for the sufficiency of the sureties;
and he may retain possession of the property attached, and the
proceeds thereof, until the objection to them is waived, as pre
scribed in the last section, or they, or the new sureties, justify.

ee

{Code § 691, without change.]
16
482 Reporr or Jornt Lucistative CoMMITTEE

§ 971. Discharge of attachment of vessel. The last five
sections are applicable where a vessel, or a share or interest
therein, is attached. If it is necessary to enable the defendant to
discharge the attachment, the court or judge [may], by order, may
stay any proceeding in relation to the execution of the warrant
[specified in article second of this title] or extend the time to do
any act relating thereto [therein specified].

[Code § 692, without change of substance.]

§ 972. Discharge of attachment on application of part-
ner. 1. If a warrant of attachment is levied upon the interest
of one or more partners in the property of a partnership, the other
partners, or any of them, [may] at any time before final judg-
ment, may apply to the judge who granted the warrant, or to the
court, upon an affidavit showing the facts, for an order to discharge
the attachment as to that interest.

2. Upon such an application, the applicant must give an under-
taking, with at least two sufficient sureties, to the effect that they
will pay to the sheriff, on demand, if judgment is recovered
against the defendant whose interest in a partnership is so levied
upon, an amount not exceeding a sum specified in the undertaking,
which must [not] be noé less than the value of the interest of the
defendant in the property seized by virtue of the attachment,
as fixed by the court or judge. If the value, in the opinion of the
court or judge, is uncertain, the sum shall be such as the court or
judge determines.

3. For the purpose of fixing the sum or determining the suffi-
ciency of the sureties, the court or judge may receive affidavits or
oral testimony or may direct a reference.

[Code §§ 693-695, without change.]

§ 973. Notice to plaintiff of application for discharge.
The court or judge may direct that the plaintiff have notice of
an application for a discharge of property, as prescribed in this
article, or of the hearing under an order of reference, made as
_ prescribed in the last section: and if the applicant does not appear,
where notice has been given, the application may be dismissed or
denied.

[Code § 696, without change.]
Crvit Practicr Act 483

ARTICLE 59
ATTACHMENT; TWO OR MORE WARRANTS

Section 974. Preferences of two or more warrants of attachments.

975. Levy under a junior warrant.

976. Undertaking by junior attaching creditor to prevent
release of foreign vessel.

. 977. Subsequent attachment of foreign vessel.

978. Rights of junior plaintiff in action by senior plain-
tiff and sheriff jointly.

979. Action by junior plaintiff and sheriff jointly.

980. Rights of third and other subsequent attaching
creditors.

981. Substitution of indemnitors or defendants in action
against sheriff.

§ 974. Preferences of two or more warrants of attach-
ment. Where two or more warrants of attachment against the
same defendant are delivered to the sheriff of the same county
to be executed, their respective preferences, and the rules, where
a levy, or a levy and sale, have been made under a junior warrant.
are the same as where two or more executions against the prop-
erty of the same defendant are delivered to the sheriff of the
same county to be executed.

[Code § 697, without change. Included by Board in County Law, § 188-d.]

§ 975. Levy under a junior warrant. Where a domestic
vessel or share or interest therein has been attached and after-
wards released[, as prescribed in this title]; or where the per-
sonal property of a partnership of which the defendant was a
member has been attached, and the attachment afterwards dis-
charged upon the application of another partner[[, as prescribed
in this title]; another warrant against the same defendant shall
not be levied on the same property by the sheriff of the same or
of any other county until after the first warrant has been vacated
or annulled. But, except as thus prescribed, where a second war-
rant against the same defendant is delivered to the same sheriff.
he must execute it by a levy upon property within his county, and
484 Report or Joint LeqisLativE CoMMITTEE

he must thereupon take the same proceedings as if the levy was
made under the first warrant.

(Code § 698, without change of substance. Included by Board in Trans-
portation Corporations Law, § 16; Partnership Law, § 10; County Law,
§ 188-a.]

§ 976. Undertaking by junior attaching creditor to
prevent release of foreign vessel. Where a foreign vessel, or
a share or interest therein, has been attached and valued, as pre-
scribed in this act [article second of this title], and the plaintiff,
in the first warrant of attachment fails to give an undertaking to
prevent the release thereof, the court or judge may grant to the
plaintiff in a second warrant, then in the sheriff’s hands for execu-
tion, an extension of not more than three days thereafter, within
which to furnish an undertaking, in all respects like the one to be
furnished by the first plaintiff. And if he furnishes it within that
time, he has the same rights and privileges, and is subject to the
same duties and liabilities, with respect to the vessel and its pro-
ceeds and the subsequent proceedings relating thereto, as if his
was the first warrant.

[Code § 701, without change of substance. Included by Board in Trans-
portation Corporations Law, § 19-j.]

§ 977. Subsequent attachment of foreign vessel. If
a foreign vessel, or a share or interest therein, has been attached,
and afterwards released by reason of the failure of the plaintiff
in the first or the second warrant to give an undertaking to pre
vent the release, it shall not be again attached under a warrant
against the same defendant which has been delivered to the sheriff
of the same county before the expiration of the time within
which the undertaking should have been furnished. But it may
be again attached under a subsequent warrant against the same
defendant; in which case, the plaintiff therein, and the plaintiff
in each warrant subsequently delivered to the sheriff, have the
same rights and privileges, and are subject to the same duties
and liabilities, with respect to the vessel and its proceeds and the
subsequent proceedings relating thereto, as if the warrant under
which it was attached was the first warrant.

[Code § 702, without change. Included by Board in Transportation Cor-
porations Law, § 19-k.]
Crvit Practice Act 485

§ 978. Rights of junior plaintiff in action by senior
plaintiff and sheriff jointly. Where the plaintiff in a warrant
of attachment has commenced an action in the name of him-
self and the sheriff jointly, [as prescribed in this title,] a
plaintiff in a junior warrant may apply to the court or judge to
direct as to the conduct, discontinuance or settlement of the same,
or to impose terms, conditions and regulations as to the continu-
ance thereof, in the interest of the applicant; and such order may
be made thereupon as justice requires. If the first warrant is
vacated, or the attachment thereunder is released or discharged,
without affecting the cause of action prosecuted by the plaintiff
therein and the sheriff jointly, the plaintiff in the warrant next
in order, may be substituted upon his own application, [be substi-
tuted] as joint plaintiff with the sheriff, by an order made as
upon an application for leave to bring such an action.

[Code § 703, without change of substance.]

§ 979. Action by junior plaintiff and sheriff jointly.
A plaintiff in a second warrant may apply to the court or judge,
upon notice to the plaintiff in the first warrant, and to the sheriff,
for leave to bring and maintain, in the name of himself and the
sheriff jointly, any action which might be brought in the name of
the senior plaintiff and the sheriff. If it appears that the plaintiff
in the first warrant neglects or refuses to be joined with the sheriff
in such an action, or to comply with the terms, conditions and
regulations imposed, either upon granting him an order for that
purpose, or upon the hearing of an application, made as prescribed
in this section, the court or judge may grant to the plaintiff in
the second warrant leave to bring and maintain such an action,
in the name of himself and the sheriff jointly, with like effect as
if his was the first warrant.

[Code .§ 704, without change. Included by Board in Civil Rights Law,
§ 71.)

§ 980. Rights of third and other subsequent attaching
creditors. Where there are more than two warrants of attachment
against the same defendant, the plaintiffs in the third and each
subsequent warrant have, according to their respective priorities,
the same rights and privileges as against the plaintiffs in all
senior warrants, which the plaintiff in the second warrant has
as against the plaintiff in the first, and are subject to the same
486 Report or Jornr LucisLtarivE CoMMITTEE

duties and liabilities; except that a second extension of the time
within which to furnish an undertaking to prevent the release of
a foreign vessel, or a share or interest therein, shall not be
granted. And the plaintiffs in two or more junior warrants of
attachment, [may,] by agreement among themselves, may take
jointly, and for their common benefit, any proceeding permitted by
this [title] act to be taken by the plaintiff in a second or subse-
quent warrant of attachment; provided that it does not interfere
with the preferential or other right of an intermediate plaintiff.

[Code § 795, without change. Included by Board in Civil Rights Law,
§§ 64, 65; Transportation Corporations Law, § 19-L]

§ 981. Substitution of indemnitors as defendants in
action against sheriff. In an action against a sheriff on account
of a levy under one or more warrants of attachment, indemnitors
may be substituted as defendants, as prescribed in this act in the
provisions relating to executions.

[New. Inserted to recall the practitioner’s attention to certain provisions
in the article on executions applicable in terms to attachments.]

ARTICLE 60

ATTACHMENT; PROCEEDINGS AFTER VACA-
TION OF WARRANT OR DISCHARGE OF
ATTACHMENT, OR AFTER JUDGMENT

Section 982., Execution to issue to sheriff who has levied attach-
. ment. i
983. Satisfaction of judgment from attached property.
984. When attached property to be restored to defendant.
985. Additional provision for defendant’s relief.
986. Cancelling notice attaching real property.
987. When sheriff to return warrant and his proceedings.

§ 982. Execution to issue to sheriff who has levied attach-
ment. Where a levy under a warrant of attachment in an
action has been made, an execution against property upon a final
judgment in favor of the plaintiff therein, recovered after the
expiration of the term of office of the sheriff who made the levy,
must nevertheless be directed to and executed by that sheriff,
Crvin Practicr Act 487

unless another person is designated by law to complete the
unfinished business pertaining to his office; or, in that case, to the
person so designated.

[Code § 706, without change.]

§ 983. Satisfaction of judgment from attached prop-
erty. Where an execution against property is issued upon a judg-
ment for the plaintiff in an action in which a warrant of attach-
ment has been levied, the sheriff must satisfy it as follows:

1. He must pay over to the plaintiff all money attached by him,
and the proceeds of all sales of perishable property, or of any
vessel or share or interest therein, or animals, sold by him, or of
any debts, or other things in action collected or sold by him; or so
much thereof as is necessary to satisfy the judgment.

2. If any balance remains due, he must sell under the execu-
tion the other personal property attached, or so much thereof as
is necessary; including rights or shares in the stock of an asso-
ciation or corporation, or a bond or other instrument for the pay-
ment of money, executed and issued, with the interest coupons
annexed, if any, by a government, state, county, public officer, or
municipal or other corporation, which is in terms negotiable, or
otherwise, whether past due, or yet to become due; but not includ-
ing any other debt or thing in action. If the proceeds of that prop-
erty are insufficient to satisfy the judgment and the execution
requires him to satisfy it out of any other personal property
of the defendant, he must sell the personal property upon which
he has levied by virtue of the execution. If the proceeds of the
personal property applicable to the execution are insufficient to
satisfy the judgment, the sheriff must sell under the execution
all the right, title and interest which the defendant had in the
real property attached at the time when the notice was filed, or
at any time afterwards, before resorting to any other real prop-
erty.

3. If personal property attached, belonging to the defendant,
has passed out of the hands of the sheriff without having been
sold or converted into money, and the attachment has not been
discharged as to that property, he must[[, if practicable,] regain
possession thereof zf practicable; and for that purpose he has all
the authority which he had to seize the same under the warrant. A
person who wilfully conceals or withholds such property from him
is liable to double damages at the suit of the party aggrieved.
488 Reporr or Jornr LegistativeE CoMMITTEE

4. Until the judgment is paid, he may collect the debts and
other things in action attached, and prosecute any undertaking,
which he has taken in the course of the proceedings, and apply
the proceeds thereof to the payment of the judgment.

5. At any time after levying the attachment, the court, upon
the petition of the plaintiff, accompanied with an affidavit speci-
fying fully all the proceedings of the sheriff since the levy under
the warrant, the property attached, and the disposit’ou thereof;
and the affidavit of the sheriff showing that he has used diligence
in endeavoring to collect the debts and other things in action
attached, and that a portion thereof remains uncollected, may
direct the sheriff to sell the remaining portion, upon such terms
and in such manner as it thinks proper. Notice of the applica-
tion must be given to the defendant’s attorney if the defendant
appeared in the action. If the summons was not personally served
on the defendant, and he did not appear, the court may make
such order as to the service of notice as it thinks proper, or may
grant the application without notice.

[Code § 708, without change. Included by Board in County Law, § 190.]

§ 984. When attached property to be _ restored to
defendant. Where a warrant of attachment is vacated or an-
nulled, or an attachment is discharged, upon the application of the
defendant, the sheriff [must], except in a case where it is
otherwise specially prescribed by law, must deliver over to the
defendant, or to the person entitled thereto, upon reasonable
demand, and upon payment of all costs, charges and expenses,
legally chargeable by the sheriff, all the attached personal prop-
erty remaining in his hands, or that portion thereof as to which
the attachment is discharged; or the proceeds thereof if it has
been sold by him.

[Code § 709, without change. Included by Board in County Law, § 188-f.j

§ 985. Additional provision for defendant’s relief. \here
the sheriff is required by this act [title] to deliver attached
property or the proceeds thereof to the defendant, he must also
deliver to him, unless otherwise specially directed by the court or
judge, all books of account, vouchers, evidence of debt, muni-
ments of title, or other papers, relating to the property, either
real or personal, or to its proceeds; together with all undertak-
ings relating thereto which he has taken in the course of the pro-
Crvin Practice Act 489

ceedings and which have not been fully satisfied ; except an under-
taking given by the defendant upon the discharge of property.
He [must] also must deliver a written assignment, duly acknow]-
edged, of each undertaking so delivered, and of each other instru-
ment to which the defendant is thus entitled, an assignment of
which is necessary to perfect or protect the defendant’s title
thereto. The defendant [must also, but], upon his own applica-
tion only, also must be substituted in place of the sheriff, or the
sheriff and the plaintiff jointly, in an action brought as prescribed
in this act [title]; but the court or judge may impose, as a con-
dition of granting the order of substitution, such terms as justice
requires, with respect to indemnity and payment of expenses. The
defendant’s right with respect to property attached and not dis-
posed of, and an undertaking or other instrument to which he is
thus entitled, are the same as those of the sheriff, while the warrant
was still in force, except where his rights are specially defined or
regulated by law.

[Code § 710, without change of substance. Included by Board in County
Law, § 188-j, and Civil Rights Law, § 73.]

§ 986. Cancelling notice attaching real property. At
any time after the warrant of attachment has been vacated or
annulled, or the attachment has been discharged as to real property
attached, the court [may], in its discretion, upon the application
of any person aggrieved and upon such notice as it deems just, may
direct that any notice, filed for the purpose of attaching the prop-
erty, be cancelled of record by the clerk of the county where it is
filed and recorded. The cancellation must be made by a note to
that effect on the margin of the record, referring to the order; and,
unless the order is entered in the same clerk’s office, a certified
copy thereof mustf, at the same time,] be filed therein at the same
time.

[Code § 711, without change.]

§ 987. When sheriff to return warrant and his proceedings.
Where a warrant of attachment has been vacated or annulled, the
sheriff forthwith must [forthwith] file in the clerk’s office the
warrant with a return of his proceedings thereon. Upon the
application of either party, and proof of the sheriff’s neglect, the
court may direct him so to do, forthwith, or within a specified
time.

[Code § 712, without change.]
490 Reporr or Joint Luaistative CoMMITTEE

ARTICLE 61
RECEIVERS

Section 988. Receivers, generally.
989. Applieation for appointment of receiver.
990. Security.
991. Powers of receivers to hold real property.

§ 988. Receivers, generally. In addition to the cases where
the appointment of a receiver is specially provided for by law,
a receiver of property which is the subject of an action in the
supreme court or a county court may be appointed by the court,
in either of the following cases:

1. Before final judgment, on the application of a party who
establishes an apparent right to, or interest in, the property, where
it is in the possession of an adverse party and there is danger
that it will be removed beyond the jurisdiction of the court, or
lost, materially injured, or destroyed.

2. By or after the final judgment, to. carry the judgment into
effect, or to dispose of the property, according to its directions.

3. After final judgment, to preserve the property during the
pendency of an appeal.

The word “ property,” as used in this section, includes the
rents, profits, or other income, and the increase, of real or per-
sonal property. ;

[Code § 713, without change. Included by Board in Judiciary Law,
§ 499-j.]

§ 989. Application for appointment of receiver. Notice
of an application for the appointment of a receiver in an action,
before judgment therein, must be given to the adverse party,
unless he has failed to appear in the action and the time limited
for his appearance has expired. But where an order has been
made directing the service of the summons upon a defendant by
publication, [as prescribed in section four hundred and thirty-
eight of this act, J] the court [may], in its discretion, may appoint
a temporary receiver, to receive and preserve the property, without
notice, or upon a notice given by publication or otherwise, as may
be [he thinks] proper. But where the action is for the fore
Civit Practicr Act 491

closure of a mortgage, which mortgage provides that a receiver
may be appointed without notice, notice shall not be required.

[Code § 714, without change of substance.]

§ 990. Security. .\ receiver, appointed in an action or special
proceeding, must[, before entering upon his duties,J execute
and file with the proper clerk, before entering upon his duties,
a bond to the people, with [at least two] sufficient sureties, in a
penalty fixed by the court, judge or referee making the appoint-
ment, conditioned for the faithful discharge of his duties as
receiver[[ ; and the execution of any such bond by any fidelity or
surety company authorized by the laws of this state to transact
business, shall be equivalent to the execution of said bond by two
sureties}. [And t] The court, or, where the order was made out of
court, the judge making the order by or pursuant to which the
receiver was appointed, or his successor in office, [may,] at any
time may remove the receiver or direct him to give a new bond,.
with new sureties, with the like condition. But the foregoing pro-
visions of this section do not apply to a case where special pro-
vision is made hy law for the security to be given by a receiver,
or for increasing the same, or for removing a receiver. A
receiver who, having executed and filed a bond as provided for
in this section, before presenting his accounts as receiver, must
give notice to the surety or sureties on his official bond of his
intention to present his accounts, not less than eight days before
the day set for the hearing on said accounting. The same notice
must be given to such surety or sureties where the accounting is
ordered on the petition of a person or persons other than the
receiver, and in no ease shall the receiver’s accounts be passed,
settled or allowed, unless the said notice provided for in this sec-
tion shall have first been given to the surety or sureties on the
official bond of such receiver.

[Code § 715, without change of substance. Included by Board in Judiciary
Law, pt., § 499-0. The matter in brackets referring to the execution of
bond by fidelity company, etc., is covered by section under “Security” in
General Practice provisions. ]

§ 991. Powers of receivers to hold real property. <A
receiver appointed by or pursuant to an order or a judgment in
an action in the supreme court or a county court may take and
hold real property upon such trusts and for such purposes as the
492 Report or Joint Leetsuative COMMITTEE

court directs, subject to the direction of the court, from time to
time, respecting the disposition thereof.

[Code § 716, without change. Included by Board in Judiciary Law,
§ 499-h.]

ARTICLE 62
DISPOSITION OF PROPERTY IN LITIGATION

Section 992. Disposition of property in action or proceeding.
993. Disposition of property by sheriff on order of court.
994. Sale of perishable property.

§ 992. Disposition of property in action or proceeding.
Where it is admitted by the pleading or examination of a party,
that he has, in his possession or under his control, money, or
other personal property capable of delivery, which, being the
subject of the action or special proceeding, is held by him as trustee
for another party, or which belongs or is due to another party,
the court [may], in its discretion, may grant an order, upon
notice, that it be paid into or deposited in court, or delivered to
that party, with or without security, subject to the further direc-
tion of the court.

[Code § 717, without change. Included by Board in Civil Rights Law,
§ 230.)

§ 993. Disposition of property by sheriff on order of
court. Where the court has directed a deposit or delivery, as
prescribed in the last section, or where a judgment directs a party
to make a deposit or delivery, or to convey real property, if the
direction is disobeyed, the court, by order, besides punishing the
disobedience as a contempt, may[, by order, ] require the sheriff to
take, and deposit or deliver, the money or other personal property,
or to convey the real property, in conformity with the direction
of the court.

[Code § 718, without change.]

§ 994. Sale of perishable property. Jt shall be lawful
for the court in which an action or special proceeding is pending,
or a judge thereof, on the application of any party, to make any
Civit Practice Acr 493

order for the sale, by any person or persons named in such order,
and in such manner, and on such terms as the court or judge may
think desirable, of any goods, wares, or merchandise, which are
the subject of such action or special proceeding, and which may
be of a perishable nature or likely to be injured from keeping.

[New. Derived from English Practice order 50, rule 2.]

ARTICLE 63

REAL PROPERTY ACTIONS; GENERAL
PROVISIONS

Section 995. Defendant, how prevented from committing waste
or damage.
996. When order for survey may be made.
997. Contents and service of order.
998. Authority of partv under order.
999. When and how court may compel delivery of pos-
session of real property to purchaser.
1000. Sale; notice of; how conducted.
1001. Purchases by certain officers prohibited; penalty.
1002. Persons bound by judgment in certain actions.
1008. Special proceedings to recover real property.

§ 995. Defendant, how prevented from committing
waste or damage. If, during the pendency of an action to
recover a judgment affecting the title to, or the possession, use
or enjoyment of real property [specified in this title], the defend-
ant commits waste upon, or does any other damage to, the prop-
erty in controversy, the court or a judge thereof, [may,] upon
the application of the plaintiff and due proof of the facts by
affidavit, may grant, without notice or security, an order restrain-
ing him from the commission of any further waste upon or damage
to the property. Disobedience to such an order may be punished
as a contempt of the court. This section does not affect the plain-
tif?s right to a permanent or temporary injunction in such an
action.

[Code § 1681, without change of substance, except to broaden its

application to all real property actions. Included by Board in Civil Rights
Law, § 184, subd. 6.]
494 Reporr or Jom Learsiarive CoMMITTEE

§ 996. When order for survey may be made. If the
court in which an action relating to real property is pending is
satisfied that a survey of any of the property in the possession
of either party, or of a boundary line between the parties, or
between the property of either of them and of another person,
is necessary or expedient to enable either party to prepare a
pleading or prepare for trial or for any other proceeding in the
action, [it may,] upon the application of either party, upon notice
to the party in possession, if may make an order granting to the
applicant leave to enter upon that party’s property to make such a
survey.

[Code § 1682, without change. Included by Board in Civil Rights Law,
§ 230.)

§ 997. Contents and service of order. An order made as
prescribed in the last section must specify, by a description as
definite as may be, the property or boundary line to be surveyed,
and the real property of the adverse party upon which it is neces-
sary to enter for that purpose. A copy thereof must be served
on the owner or occupant of that property before entry thereupon.

[Code § 1683, without change.]

§ 998. Authority of party under order. After serv-
ing a copy of the order, as prescribed in the last section, the
party obtaining it, his necessary surveyors, servants and agents,
may enter, for the purpose of making the survey, upon the real
property described in the order, and may there make the survey ;
but each person so entering is responsible for any unnecessary
injury done by him; and the party procuring the order is respon-
sible for such an injury done by any person so entering.

[Code § 1684, without change. Included by Board in Real Property Law,
§ 9.J

Ҥ 999. When and how court may compel delivery of
possession of real property to purchaser. Where a judgment
in an action affecting the title to, or the possession, enjoyment
or use of real property [specified in this title] allots to any
persons} a distinct parcel of real property, or contains a direc
tion forthe sale of real property, or confirms such an allotment or
sale, it also may [also, except in « case where it is expressly pre-
scribed by statute in this act thut the judgment may be enforced
Civit Pracricz Acr 495

by execution, ] direct the delivery of the possession of the property
to the person entitled thereto, except in a case where it is expressly
prescribed by statute that the judgment may be enforced by
execution. If a party, or his representative or successor,: who
is bound by the judgment, withhulds possession from the person
thus declared to be entitled thereto, the court, by order, in its dis-
cretion, besides punishing the disobedience as a contempt, may[,
in its discretion, by order,] require the sheriff to put that person
into possession. Such an order must be executed as if it was an
execution for the delivery of the possession of the property.
[Code § 1675, without change of substance, except to broaden its applica-

tion to all real property actions. Omitted by Board as covered in part by
tule 380.]

§ 1000. Sale; notice of; how conducted. A sale of real
property made in pursuance of a judgment in an action affecting
the title to, or the possession, enjoyment or use of real property
[any provision of this title], must be at public auction to the
highest bidder. Notice of such sale must be given by the officer
making it, as prescribed [in section fourteen hundred and thirty-
four of this act] for the sale hy a sheriff of real property by
virtue of an execution, unless the property is situated wholly or
partly in a city, or in an incorporated village of the first class
in which a daily, semi-weekly or tri-weekly newspaper is pub
lished, and, in that case, by publishing notice of the sale in such
a daily, semi-weekly or tri-weekly paper, at least twice in each
week for three successive weeks, or in a weekly paper published
in a city or in such incorporated village of the first class, once in
each of the six weeks immediately preceding the sale, or in the
counties of New York and Kings in two such daily papers. If
the property be situated in a city in which no newspaper is pub-
lished, and there be an adjoining city, in another county, in which
a newspaper is published, such notice may be published either
twice a week for three successive weeks immediately preceding
the sale in a daily, semi-weekly or tri-weekly newspaper of the
latter city or once a week for six successive weeks immediately
preceding the sale in a weekly newspaper of such city.
Tf the officer appointed to make such sale does not appear
at the time and place where such sale has been advertised
to take place, [then in that case] the attorney for the plaintiff
may postpone or adjourn such sale not to exceed four weeks.
during which time such attorney may make application to the
496 Report or Jorwvr Leeistative ComMirTEE

court to have another person appointed to make such sale. N otice
of the postponement of the sale inust be published in the paper ur
papers wherein the notice of sale was published. The terms or
the sale must be made known at the sale, and if the property
or any part thereof is to be sold subject to the right of dower,
charge or lien, that fact must be declared at the time of the sale.
If the property consists of two or more distinct buildings, farms
or lots, they shall be sold separately, unless otherwise ordered by
the court; [and provided, further, that] but where two or more
buildings are situated in the same city lot, they shall be sold
together.

[Code § 1678, without change of substance except to broaden appli-

cation to all real property actions. Included by Board in Real Property
Law, § 655.]

§ 1001. Purchases by certain officers prohibited; penalty.
Neither a [A] commissioner or other officer making a sale as pre-
scribed in the last section [this title], or a guardian of an infant
party to the action, [shall not, nor shall] or any person for his
benefit, directly or indirectly, shall purchase or be interested in
the purchase of any of the property sold; except that a guardian
[may], where he is lawfully authorized to do so, may purchase
for the benefit or in behalf of his ward. ‘The violation of this
section is a misdemeanor; and a purchase made contrary to this
section is void. But no action shall be brought for or in respect
to real property by a person claiming that the property has been
heretofore sold under a judgment in an action directing the sale
wherein there were infant defendants for whom a guardian ad
litem had been appointed, and the premises were sold at public
auction and purchased by or on behalf of such guardian ad litem,
commissioner or other officer, and where the deed to the premises
so purchased has been recorded in the proper office for thirty years,
unless such action shall be conimenced within six months after
September first, nineteen hundred and sixteen [this act takes
effect].

[Code § 1679, without change of substance. Included by Board in Real
Property Law, § 664.]

§ 1002. Persons. bound by judgment in certain actions.
In an action brought to recover a judgment affecting the title to.
or the possession, use or enjoyment of real property [or proceed-
ing specified in articles second, third or fourth of this title],

 
Civin Practice Act 497

all the proceedings and the judgment shall bind, in addition to
the persons who are bound by the filing of a notice of pendency
of the action pursuant to law [pursuant to the provisions of sec-
tion sixteen hundred and seventy], all persons who acquire
inchoate dower in the real property described in the notice of
pendency of the action after the filing of such notice and also
all persons born between the filing of such notice of pendency
of action and the entry of judgments in such action who would
have been bound by such proceedings if born after such judgment;
provided the court [may], in its discretion, at any time before final
judgment, may allow any such person to intervene or may require
that he be brought in as party, or may make such other order or
provision for the protection or recognition of his rights as justice
may require and the circumstances of the case permit. In admit-
ting such new party or requiring such new party to be brought
in, the court may give or refuse leave to answer; may permit or
direct that the answer of any other defendant or defendants stand
as his answer; may direct that the action retain its place on the
calendar; may require or dispense with the appointment of
guardian ad litem; may allow a new trial or any rehearing;
or may direct.that all or any part of the proceedings stand and
bind such new party, or may make or impose any other provision,
term or condition that to the court may seem proper.

[Code § 167l-a, added by L. 1916, ch. 518, without change of substance,
except to broaden its provisions to include all real property actions. ]

§ 1003. Special proceeding to recover real property. A
special proceeding to recover real property cannot be taken except
in a case specially prescribed by law.

[Code § 1688. Included by Board in its proposed Real Property Law,
§ 743.]

ARTICLE 64
ACTION TO RECOVER REAL PROPERTY

(Article first of title one of chapter 14 of the Code of Civil Procedure
is entitled “Action to recover real property,” and is generally referred to
as “Ejectment.” The action authorized by the article is, however, broader
than the common law action of ejectment which has an action for “the
immediate possession of real property” as defined by subdivision 20 of
§ 3343 of the Code. The Statutory Revision Commission in its revision of
the Code attempted to meet this conflict by providing a new definition of
ejectment conformably to article first of title one of chapter 14, viz: “An
action to recover real property or the possession thereof.”
498 Report or Joint Legisuative CoMMITTEE

The Committee has not attempted to make any change in the scope of the
code provisions. Sections 1680 to 1685 which refer to actions of “ Eject-
ment” have been inserted without change in this respect.

The following sections have been omitted:— Section 1513, as unnecessary;
§§ 1516, 1521, 1522 and 1523 as unnecessary, in view of the general provisions
on Severance, Parties and Amendment; and § 1529, which should probably
have been repealed by chapter 509 of the Laws of 1911 repealing the
provisions of the code for a second trial in ejectment suits, and the vacating
of the final judgment on the first trial, with the possibility on the second
trial of a final judgment for defendant. With this repeal, § 1529 is without
effect. ]

Section 1004. Damages for withholding real property.

1005. Mortgagee cannot maintain action.

1006. Action cannot be maintained for dower.

1007. Separate action by joint tenant or tenant in com-
mon.

1008. Action by grantee of lands held adversely.

1009. Action by reversioner or remainderman after ten-
ant’s default.

1010. Necessary and optional defendants.

1011. When action may be brought for non-payment of
rent.

1012. Action for non-payment of rent when right of re-
entry is reserved.

1013. Payment before judgment of rent in arrear.

1014. Amount of.rent in arrear to be stated in judgment.

1015. Payment after execution of rent in arrear.

1016. Restoration of property to person paving rent in
arrear.

1017. Use of property by plaintiff, when set off against
rent.

1018. When ouster to be proved.

1019. Action against occupants of apartments.

1020. When plaintiff may recover against one defendant
subject to rights of others.

1021. Expiration of plaintiff’s title before triai.

1022. Liability of purchaser, pending an action.

1023. Effect of judgment rendered after trial of issue of
fact.

1024. Effect of judgment rendered otherwise than upon
trial of issue of fact.

1025. Damages recoverable; set-off by defendant.
Crviu Practica Act 499

§ 1004. Damages for withholding real property. In
an action to recover real property, or the possession thereof, the
plaintiff may demand in his complaint, and in a proper case
recover, damages for withholding the property. Those damages
include the rents and profits or the value of the use and oceupation
of the property where either can legally be recovered by the
plaintiff,

[Code §§ 1496, 1497, without change. Included by Board in Real Property
Law, § 464.]

§ 1005. Mortgagee cannot maintain action. A mortgagee,
or his assignee or other representative, cannot maintain such an
action to recover the mortgaged premises.

[Code § 1498, without change. Included by Board in Real Property Law,
§ 454.]

§ 1006. Action cannot be maintained for dower. Such an
action cannot be maintained in a case where an action for dower
may be maintained[, as prescribed in article third of this title;
or

2. Where in any city the real property consists of a strip of
land not exceeding six inches in width upon which there stands
the exterior wall of a building erected partly upon said strip and
partly upon the adjoining lot, and a building has been erected
upon land of the plaintiff abutting on the said wall, unless said
action be commenced within one year after the camnpletion of the
erection of such wall or within one year after the first dav of
September, eighteen hundred and ninety-eight. But an action
may be maintained, if commenced within the further period of
one year, for the recovery of damages by reason of the erection
of such wall, and upon the satisfaction of the judgment for such
damages the title of the plaintiff to such strip of land shall thereby
be transferred to and vest in the defendant. If neither an action
of ejectment nor an action for the recovery of damages be brought
within the period hereby limited therefor, the person in posses-
sion of such lands shall be deemed to have an easement in said
strip of land so long as the said wall partly erected thereon shall
stand, and no longer, and in case of the destruction of such wall
the owner of such strip shall have the same right to take or recover
the possession thereof as if such wall had never existed].

[Code § 1499, first clause. Included by Board in Real Property Law,
§ 456. The bracketed matter omitted as special and temporary.]
500 Revorr or Joiny Leersuarive ComMirtre

§ 1007. Separate action by joint tenant or tenant in
common. Where two or more persons are entitled to the pos-
session of real property as joint tenants or tenants in common,
one or more of them may maintain such an action to recover his
or their undivided shares in the property in any case where such
an action might be maintained by all.

[Code § 1500, without change. Included by Board in Real Property Law,
§ 460.]

§ 1008. Action by grantee of lands held adversely.
Such an action may be maintained by a grantee, his heir or
devixec, in the name of the grantor or his heir, where the con-
veyance under which he claims is void because the property con-
veyed was held adversely to the grantor. The plaintiff must be
allowed to prove the facts to bring the case within this sectiou.
In such an action, a judgment against the plaintiff shall not
award costs to the defendant; but where the defendant is entitled
to costs as of course [as prescribed in section three thousand two
hundred and twenty-nine of this act], they may be taxed, and
the person who maintained the action in the plaintiff’s name may
be compelled to pay the same, as prescribed in section [three thou-
sand two hundred and forty-seven] fourteen hundred and fifty-
eight of this act.

[Code § 1501, without change of substance. Included by Board in rule

117 and applied in terms to actions “for summary possession” of real
property. There seems to be no logic in including the subject in a rule.]

§ 1009. Action by reversioner or remainderman after
tenant’s default. Where a tenant for life or for a term of
years suffers judgment to be taken against him, by consent or
by default, in an action of ejectment[[, or an action for dower],
the heir or person owning the reversion or remainder, may[, after
the determination of the particular estate,J maintain an action
of ejectment to recover the property, after the determination of
. the particular estate.

[Code § 1680, without change of substance so far as applicable to actions
of ejectment. Included by Board in Real Property Law, § 457. The section
is also included by committee under “Action for Dower,” in Real Property
Law. J

§ 1010. Necessary and optional defendants. \Vhere the
complaint demands judgment for the immediate possession of
Crvin Practice Act. 501

the property, if the property is actually occupied, the occupant
thereof must be made defendant in the action. If it is not so
occupied, the action must be brought against some person exer-
cising acts of ownership thereupon, or claiming title thereto or
an interest therein, at the time of the commencement of the
action. Any other person claiming title to, or the right to the
possession of, the real property sought to be recovered, as landlord,
remainderman, reversioner, or otherwise adversely to the plaintiff,
may be joined as defendant.

[Code §§ 1502, 1503, without change of substance. Section 1502 included
by Board in the general terms of rule 130.]

§ 1011. When action may be brought for non-payment
of rent. When six months’ rent or more is in arrear upon a
grant reserving rent or upon a lease of real property, and the
grantor or lessor, or his heir, devisee or assignee, has a subsist-
ing right by law to re-enter for the failure to pay the rent, he may
maintain an action to recover the property granted or demised,
without any demand of the rent in arrear or re-entry on the
property.

[Code § 1504, without change. Included by Board in Real Property Law, ~
§ 452.]

§ 1012. Action for non-payment of rent when right of
re-entry is reserved. Where a right of re-entry is reserved and
given to a grantor or lessor of real property, in default of a
sufficiency of goods and chattels whereon to distrain for the satis-
faction of rent due, the re-entry may be made, or an action to
recover the property demised or granted may be maintained, by
the grantor or lessor, or his heir, devisee or assignee, at any
time after default in the payment of the rent; provided the plain-
tiff, at least fifteen days before the action is commenced, serves
upon the defendant a written notice of his intention to re-enter,
personally, or by leaving it at his dwelling-house on the premises
with a person of suitable age and discretion; or, if the defendant
cannot be found with due diligence and has no dwelling-house
on the premises whereat a person of suitable age and discretion
can be found, by posting it in a conspicuous place on the premises.

[Code § 1505, without change. Included by Board in Real Property Law,
§ 462.]
502 Report or Joint Leeisiative ComMirrEee

§ 1013. Payment before judgment of rent in arrear. At
any time before final judgment for the plaintiff is rendered
and the judgment-roll is filed in an action brought as prescribed
in either of the last two sections, the defendant may pay or tender
to the plaintiff or his attorney, or pay into court, all the rent then
in arrear, with interest and the costs of the action to be taxed;
and thereupon the complaint must be dismissed.

[Code § 1506, without change. Included by Board in rule 70, and combined
with § 1634, relating to foreclosure of mortgage.]

§ 1014. Amount of rent in arrear to be stated in judg-
ment. In such an action, a verdict, report or decision in favor
of the plaintiff must fix the amount of rent in arrear to the
plaintiff, or, if judgment is taken by default, the amount thereof
must be ascertained by or under the direction of the court; and
in either case it must be stated in the judgment.

[Code § 1507, without change. Omitted by Board as covered by general
provisions. ]

§ 1015. Payment after execution of rent in arrear. At
any time within six months after possession of the property
‘awarded to the plaintiff in such an action has been delivered to
him by virtue of an execution issued upon a judgment rendered
therein, the defendant, or any person who has succeeded to his
interest, or a mortgagee of the lease, or of any part thereof, who
was not in possession when final judgment was rendered, may pay
or tender to the plaintiff, or his executor, administrator or attor-
ney, or may pay into court, for the use of the person so entitled
thereto, the amount of rent in arrear, as stated in the judgment,
and the costs of the action, with interest and all other charges
incurred by the plaintiff.

[Code § 1508, without change. Included by Board in Real Property Law,
§ 473.)

§ 1016. Restoration of property to person paying rent
in arrear. Within three months after making the payment or
tender, the person who made it, or his representative, may apply
to the court for an order that possession of the property be deliv-
ered to him; and thereupon, upon proof of the facts, and pay-
ment of the sum due by reason of rent accruing since the judg-
ment was rendered, and upon compliance with all other terms to
Crvit Practice Act 503

be complied with by the grantee or lessee to the time of the appli-
cation, the court must make an order directing that possession
of the property be delivered to the applicant, who shall hold and
enjoy the same, without any new grant or lease thereof, according
to the terms of the original grant or lease. Notice of the applica-
tion must be served upon the plaintiff’s attorney.

[Code § 1509, without change. Included by Board in Real Property Law,
§ 474.]

§ 1017. Use of property by plaintiff, when set off
against rent. If possession of the property recovered has been
delivered to the plaintiff by virtue of an execution issued upon a
judgment in the action, the order must provide for setting off
the sum which the plaintiff has made, or which he might with-
out wilful neglect have made, of the property, during the pos-
session thereof, against the rent accruing after the judgment was
rendered, and for reimbursement to the applicant of the balance,
if any, of the sum paid into court by him, after making the set-off
prescribed in this section.

[Code § 1510, without change. Included by Board in Real Property Law,
§ 475.]

§ 1018. When ouster to be proved. Where the action
is brought by a tenant in common or a joint tenant against his
co-tenant, the plaintiff, besides proving his right, must also prove
that the defendant actually ousted him or did some other act
amounting to a total denial of his right.

[Code § 1515, without change. Included by Board in Evidence Law, § 49.]

§ 1019. Action against occupants of apartments. [The
last section does not apply to a case, where two or more defendants
occupy different apartments in a building.J In [such] a case
where two or more defendants occupy different apartments in a
building, in an action to recover the building and its curtilage.
the plaintiff is entitled to judgment jointly against all the defend-
ants who are liable to him.

[Code § 1517, without change of substance. Included by. Board in Real
Property Law, § 459. Code § 1516, omitted as unnecessary.]

§ 1020. When plaintiff may recover against one de-
fendant subject to rights of others. [Section 1516 of this act
504 Rerort or Joint Leoistative CoMMItTEE

does not apply to a case, In an action for the recovery of real
property or the possession thereof, where one or more answering
defendants [answering as therein prescribed, hold under another
defendant, and the plaintiff elects to proceed against the latter,
subject to the rights and interests of the former[[. In such a case,
the proceedings against the defendant so answering must be stayed
until final judgment; andJ, if the plaintiff recovers final judg-
ment against the defendant under whom they hold, the judgment
operates as a transfer to the plaintiff of that defendant’s right,
title and interest, and the costs of the defendant or defendants so
answering are in the discretion of the court.

[Code § 1518, without change of substance. Included by Board in Real
Property Law, § 472.]

§ 1021. Expiration of plaintiff’s title before trial. If the
right or title of the plaintiff in an action for the recovery of
real property or the possession thereof [specified in this article]
expires after the commencement of the action but before the
trial, and he would have been entitled to recover but for
the expiration, the verdict, report or decision must be rendered
according to the fact; and the plaintiff is entitled nevertheless to
judgment for his damages for the withholding of the property
to the time when his right or title so expired.

[Code § 1520, without change of substance. Included by Board in Real

Property Law, § 468. Code §§ 1521-1523, omitted as covered by general pro-
visions on Severance, Parties and Amendment. ]

§ 1022. Liability of purchaser, pending an action. If the
defendant in an action of ejectment [[or an action for dower,]
aliens the real property in question after the filing of a notice of
pendency of the action, [as specified in section 1670 of this act.J
and an execution against him for the plaintiff's damages is
returned wholly or partly unsatisfied, an action may be main-
tained by the plaintiff against any person who has been in posses-
sion of the property, under the defendant’s conveyance, to recover
the unsatisfied portion of the damages, for a time not exceeding
that during which he possessed the property.

[Code § !685, so far as applicable to ejectment, without change of sub-
stance. Included by Board in Real Property Law, § 469. So far as the sec-
tion relates to dower it is included in the article on that subject in Real
Property Law.]
Civin Pracricre Act 505

§ 1023. Effect of judgment rendered after trial of is-
sue of fact. A final judgment, in an action for the recovery of
real property or the possession thereof [specified in this article],
rendered upon the trial of an issue of fact, is conclusive as to the
title established in the action, upon each party against whom it is
rendered and every person claiming from, through or under him,
by title accruing either after the judgment- roll is filed or after a
notice of the pendency of the action is filed in the proper [county
clerk’s¥ oftice[[, as prescribed in article ninth of this title].

[Code § 1524, without change of substance. Included by Board in Evi-
dence Law, § 61.)

§ 1024. Effect of judgment rendered otherwise than
upon trial of issue of fact. A final judgment for the plaintiff
rendered in an action for the recovery of property or the possession
thereof [specified in this article], otherwise than upon the trial
of an issue of fact, 1s conclusive upon the defendant and every
person claiming from, through or under him by title accruing
either after te sdpticate roll is filed or after a notice of the
pendency of the action is filed in the proper [county clerk’s]
office[[, as prescribed in article ninth of this title].

[Code § 1526, without change of substance. Included by Board in Real
Property Law, § 471.)

§ 1025. Damages recoverable; set off by defendant.
In an action for the recovery of real property or the possession
thereof [brought as prescribed in this article], the plaintiff, where
he recovers judgment for the property is entitled to recover as
damages the rents and profits, or the value of the use and occu-
pation, of the real property recovered, for a term not exceeding
six years; but the damages shall not inelude the value of the use
of any improvements made by the defendant or those under whom
he claims. Where permanent improvements have been made in
good faith by the defendant or those under whom he claims,
while holding, under color of title, adversely to the plaintiff, the
value thereof must be allowed to the defendant in reduction of
the damages of the plaintiff, but not beyond the amount of those
damages.

[Code § 1531, without change of substance. Included by Board in Real
Property Law, § 465.]
506 Report or Joint Legistative CoMMITTEE

Section 1026.
1027.

1028.
1029.
1030.
10381.
1082.
1038.
1034.
1035.
1036.
10387.
1088.
1039.
1040.
1041.
1042.
1043.
1044.
1045.
1046.
1047.
1048.
1049.
1050.
1051.
1052.
1053.
1054.
1055.
1056.
1057.
1058.
1059.
1060.
1061.
1062.

ARTICLE 65
ACTION FOR PARTITION

When action for partition may be brought.

Action for partition to embrace all separate tracts
held in common.

Action for partition by remainderman.

Action for partition by an infant.

Action for partition by an heir.

Parties.

Who not to be plaintiff.

When executor or administrator to be defendant.

People of state as defendant.

Optional parties defendant.

Title of parties may be tried.

Issues of fact triable by jury.

Interlocutory judgment.

Partial partition authorized.

Shares may be set off in common.

Commissioners to make partition if practicable.

Partition; how made.

Partition where there is a particular estate.

Report of commissioners.

Fees and expenses.

Confirming or setting aside report.

Final judgment on report; effect thereof.

Judgment must direct delivery of possession.

Lien of creditor upon share partitioned.

Costs; collection against unknown parties.

Sale of property; when directed.

Reference to inquire as to creditors.

Duty of referee.

Money to be paid into court.

Application for money.

Payment of incumbrances.

Other parties not to be delayed.

When land to be sold free from decedent’s debts.

When proceeds to be paid into court.

Disposition of deposit.

Withdrawal of deposit.

When proceeds payable directly to parties.
Section 1063.
1064.
1065.

1066.
1067.

1068.
1069.
1070.
1071.
1072.
1073.

1074.
1075.

1076.
1077.
1078.
1079.

1080.
1081.

1082.
1083.

1084.
1085.

1086.
1087.

1088.
1089.

Civit Pracricr Act 507

Sale or exception of dower interest.

Effect of sale of dower interest in entire property.

Disposition of money belonging to tenant of par-
ticular estate in undivided share sold.

Consent by guardian or committee of tenant of
particular estate to accept gross sum.

Interest of owners of future estates, in proceeds of
sale, to be protected.

Married woman may release her interest.

Unknown owners to be protected.

Credit on sale.

Report of sale.

Final judgment after confirmation of sale.

Effect upon incumbrancers of final judgment after
confirmation of sale.

Costs of action and expenses of sale; how paid.

Distribution of proceeds; duties of officer making
sale. .

Payment of taxes, assessments and water rates out
of proceeds of sale.

Shares of infants.

Shares of unknown and absent owners.

Judicial inquiry as to unknown heirs with refer-
ence to disposition of unclaimed proceeds.

Service of notice of hearing.

Dismissal of proceeding if all parties interested
appear.

Disposition of proceeds among known heirs.

Shares of tenants of particular estates; investment
and income.

Court may require security to refund.

Security to be taken in name of county treasurer;
action thereon.

Compensation to equalize partition.

Judgment as to parties having interest in entire
property.

Rents and profits may be adjusted.

Exemplified copy of judgment may be recorded.

§ 1026. When action for partition may be _ brought.
Where two or more persons hold and are in possession of real
property as joint tenants or as tenants in common, in which either
508 Rerorr or Joinr Lecistarive CoMMITTEE

of them has an estate of inheritance, or for life, or for years, any
one or more of them may maintain an action for the partition of
the property, according to the respective rights of the persons
interested therein; and for a sale thereof, if it appears that a par-
tition thereof cannot be made without great prejudice to the
owners.

[Code § 1532, without change. Included by Board in Real Property Law,
§ 543.)

§ 1027. Action for partition to embrace all separate
tracts held in common. Where several tracts or parcels of land
lying within this state are owned by the same persons in common,
no separate action for the partition of a part thereof shall be
brought without the consent of all the parties interested therein ;
or without the special order of the court made on notice to all
parties who have appeared in the action, to be obtained before
application for the relief demanded in the complaint; and, if
brought without such a consent or order, the share of the plaintiff
may be charged with the whole cost of proceeding[[; and where
infants are interested, the complaint shall state whether or not the
parties own any other lands in common].

[General Rule of Practice 65, without change. Included by Board in
Real Property Law, § 547. The latter part of rule 65 is included elsewhere.]

§ 1028. Action for partition by remainderman. Where two or
more persons hold a vested remainder or reversion as joint tenants
or as tenants in common, [a vested remainder or reversion, ] any
one or more of them may maintain an action for the partition of
the real property to which it attaches, according to their respective
shares therein, subject to the interest of the person holding the par
ticular estate therein, but no sale of the premises in such an action
shall be made except by and with the consent in writing, to be ac-
knowledged or proved and certified in like manner as a deed to be
recorded [by]. of the person or persons owning and holding such
particular estate or estates; and if in such an action it shall appear
in any stage thereof that partition or sale cannot be made without
great prejudice to the owners, the complaint must be dismissed.
The dismissal of the ebraplaint, as herein provided, shall not affect
the right of any party to bring a new action after the determina-
tion of such particular estate.

[Code § 1533, without change. Included by Board in Real Property Law,
§ 544.)
Crvit Pracricr Act 509

§ 1029. Action for partition by an infant. An action
for the partition of real property shall not be brought by an
infant, except by the written authority of the surrogate of the
county in which the property or a part thereof is situated. The
authority shall not be given unless the surrogate is satisfied, by
affidavit or other competent evidence, that the interests of the
infant will be promoted by bringing the action. A judgment for
a partition or sale shall not be rendered in such an action unless
the court is satisfied that the interests of the infant will be pro-
moted thereby, and that fact is expressly recited in the judgment.

[Code § 1534, without change. Included by Board in Real Property Law,
§ 546.]

§ 1030. Action for partition by an heir. A person claim-
ing to be entitled as a joint tenant or a tenant in common by
reason of his being an heir of a person who died holding and in
possession of real property, may maintain an action for the parti-
‘tion thereof, whether he is in or out of possession, notwithstanding
an apparent devise thereof to another by the decedent, and posses-
sion under such a devise. But in such an action, the plaintiff must
allege and establish that the apparent devise is void.

{Code § 1537, without change. Included by Board in Real Property Law,
§ 545, and the last sentence in Evidence Law, § 85.]

§ 1031. Parties. Hach of the following persons must be made
a party to an action for partition:

1. Every person having an undivided share, in possession or
otherwise, in the property, as tenant in fee, for life, by the
curtesy or for years;

2. Every person entitled to the reversion, remainder or inherit-
ance of an undivided share, after the determination of a particular
estate therein ;-

3. Every person who, by any contingency contained in a
devise or grant or otherwise, is or may become entitled to a
beneficial interest in an undivided share thereof, provided that
where a future estate or interest is limited in any contingency to
the persons who shall compose a certain class upon the happening
of a future event, it shall be sufficient to make parties to the action
‘the persons who would have been entitled to such estate or interest
if such event had happened immediately before the commencement
of the action;
510 Rerorr or Jormvt Leatsiative CoMMITTEE

+. Every person having an inchoate right of dower in an
undivided share in the property; [and]

5. Every person having a right of dower in the property, or
any part thereof, which has not been admeasured[[, must be made
a party to an action for a partition].

[Code § 1538, first sentence without change of substance. See Board
rule 130.]

§ 1032. Who not to be plaintiff. [But no person other
than a joint tenant or a tenant in common of the property shall
be a plaintiff in the action.

[Code § 1538, second sentence. Included by Board in rule 119.]

§ 1033. When executor or administrator to be defendant.
An executor or administrator must be made a party defendant in
a partition action:

1. Where letters testamentary or of administration have been
issued on the estate of the decedent from whom the plaintiff’s
title to the real property is derived, and the action is brought
within eighteen months after such letters were issued.

2.. Where the person of whose estate an executor or adminis-
trator has been appointed should, if living, be a party to the action.

If no executor or administrator has been appointed in a case
specified in either of the foregoing subdivisions, that fact must be
stated in the complaint.

[Code § 1538, third, fourth and fifth sentences rewritten without change
of substance. Omitted by Board as covered by its proposed rule 130.]

§ 1034. People of state as defendant. The people of the
state may be made a party defendant to an action for the partition
of real property, in the same manner as a private person.

[Code § 1594, first sentence, without change.]

§ 1035. Optional parties defendant. The plaintiff [may],
at’ his election, may make defendant in the action:

1, A tenant by the curtesy, for life or for years, of the entire
property, or whoever may be entitled to a contingent or vested
remainder or reversion in the entire property, or a creditor or
other person having a lien or interest which attaches to the
entire property[, a defendant in the action. In that case, the
final judgment may either award to such a party his or her entire
Crvit Practice Act 511

right and. interest, or the proceeds thereof, or where the right
or interest is contingent direct that the proceeds or share thereof
be substituted for the property and invested for whoever may
eventually be entitled thereto, or may reserve and leave unatfected
his or her right and interest, or any portion thereof]. A person
specified in this subdivision [section] who is not made a party is
not affected by the judgment in the action.

2. [make a] A creditor having a lien on an undivided share or
interest in the property[, a defendant in the action]. In that
case, he must set forth the nature of the lien and specify the share
or interest to which it attaches.

[Code § 1539, first and third sentences. The second sentence in brackets
is made a separate section, post. Also Code § 1540, first two sentences.]

§ 1036. Title of parties may be tried. The title or
interest of any party [the plaintiff] in the property, as stated in
any pleading [the complaint], may be put in issue [controverted
by the answer]. [The title or interest of any defendant in the
property, as stated in the complaint, may also be controverted by
lis answer, or the answer of any other defendant; and the title or
interest of any defendant, as stated in his answer, may be con-
iroverted by the answer of any other defendant. A defendant,
thus controverting the title or interest of a co-defendunt, must
. comply with section 521 of this act.] The issues[[,] thus joined
[as prescribed in this section.] must be tried and determined in
the action.

[Code § 1543, rewritten without change of substance. Omitted by Board
as covered by general rules of pleading.]

§ 1037. Issues of fact triable by jury. An issue of fact
joined in the action is triable by a jury. Unless the court directs
the issues to be stated[[, as prescribed in section 970 of this act,]
the issues may be tried upon the pleadings.

[Code § 1544, without change of substance. Included by Board in Civil
Rights Law, § 193. Under the decisions a jury trial is a matter of right.]

§ 1038. Interlocutory judgment. The interlocutory judg-
ment must declare what is the right, share or interest of each
party in the property, as far as the same has been ascertained, and
must determine the rights of the parties therein. Where it is
found by the verdict, report or decision, or where it appears to
512 Report or Joint Leaistattve CoMMITTEE

the court upon an application for judgment in favor of the plain-
tiff, that the property or any part thereof is so circumstanced
that a partition thereof cannot be made without great prejudice to
the owners, thé interlocutory judgment, except as otherwise
expressly prescribed in this article, must direct that the property
or the part thereof which is so cireumstanced be sold at public
auction. Otherwise, an interlocutory judgment in favor of the
plaintiff must direct that partition be made between the parties
according to their respective rights, shares and interests[. Where
the interlocutory judgment, in an action for partition, directs a
partition, it]] and must designate three reputable and disinterested
freeholders as commissioners to make the partition so directed-

[Code §§ 1546, 1549, without change of substance. Omitted by Board
because “interlocutory judgment” is eliminated under its plan of revision.]

§ 1039. Partial partition authorized. Where the right,
share and interest of a party has been ascertained and determined,
and the rights, shares or interests of the other parties as between
themselves remain unascertained or undetermined, an interlocu-
tory judgment for a partition, entered as prescribed in the last
section, must direct a partition as between the party whose share
has been so determined and the other parties to the action. Where
the rights, shares and interests of two or more parties have been
thus ascertained and determined, the interlocutory judgment may
also direct the partition among them of a part of the property
proportionate to their aggregate shares. In either case, the court
[may], from time to time, as the other rights, shares and interests
are ascertained and determined, may render an interlocutory judg-
ment directing the partition, in like manner, of the remainder of
the property. Where an interlocutory judgment is rendered in a
case specified in this section, the court may direct the action to be
severed, and final judgment to be rendered with respect to the
portion of the property set apart to the parties whose rights,
shares and interests are determined, leaving the action to proceed
as against the other parties with respect to the remainder of the
property; and if necessary, the court may direct that one of those
parties be substituted as plaintiff.

[Code § 1547, without change. Omitted by Board as cuvered by Civil
Practice Act, § 46.]

§ 1040. Shares may be set off in common. Where tyo
or more parties to an action for partition make it appear to the
Crvit Practicz Acr 5138

court that they desire to enjoy their shares in common with each
other, the interlocutory judgment [may], in the discretion of the
court, may direct partition to be so made as to set off to them their
shares of the real property partitioned, without partition as
between themselves, to be held by them in common.

[Code § 1548, without change. See Board’s Civil Practice Act, § 46.]

§ 1041. Commissioners to make partition if practicable.
The commissioners designated by the interlocutory judgment
must forthwith proceed to make partition as directed by
such [the interlocutory] judgment, unless it appears to them or
a majority of them that partition thereof, or of a particular lot,
tract or other portion thereof, cannot be made without great
prejudice to the owners; in which case, they must make a written
report of that fact to the court.

[Code § 1551, without change.]

§ 1042. Partition; how made. In making the partition,
the commissioners must divide the property into distinct parcels
and allot the several parcels thereof to the respective parties,
quality and quantity being relatively considered, according to the
respective rights and interests of the parties as fixed by the inter-
‘ocutory judgment. They must designate the several parcels by
posts, stones or other permanent monuments. They may employ
a surveyor, with the necessary assistants, to aid them in so doing.

[Code § 1552, without change.]

§ 1043. Partition where there is a particular estate.
Where a party has a right of dower in the property, or a part
thereof, which has not been admeasured, or has an estate by the
curtesy, for life or for years in an undivided share of the property,
the commissioners may allot to that party his or her share of the
property without reference to the duration of the estate. [And t]
They may make partition of the share so allotted to that party,
among the parties who are entitled to the remainder or reversion
thereof, to be enjoyed by them upon the determination of the par-
ticular estate, where, in the opinion of the commissioners, such a
partition can be made without prejudice to the rights of the
parties.

[Code § 1553, without change. Included by Board in Real Property Law,
§ 551.]

17
514 Reporr or Jorvt Lugistuative CoMMITTEE

§ 1044. Report of commissioners. AJ] the commissioners
must meet together in the performance of any of their duties,
but the acts of a majority so met are valid. They, or a majority
of them, must make a full report of their proceedings, under their
hands, specifying therein the manner in which they have dis-
charged their trust, describing the’ property divided and the share
or interest in a share allotted to each party, with the quantity,
courses and distances or other particular description of each share,
and a description of the posts, stones or other monuments;
and specifying the items of their charges. Their report must be
acknowledged or proved, and certified, in like manner as a deed
to be recorded, and must be filed in the office of the clerk.

[Code § 1554, without change. Omitted by Board as covered by rule 34,
relating to reports of referees.]

§ 1045. Fees and expenses. The fees and expenses of
the commissioners, including the expense of a survey when it
is. made, must be taxed under the direction of the court; and the
amount thereof must be paid by the plaintiff and allowed as part
of his. costs.

[Code § 1555, without change. Included by Board in Costs Law, § 19.]

§ 1046. Confirming or setting aside report. The court
must confirm or set aside the report, and [may], if necessary,
may appoint new commissioners, who must proceed as directed in
this article.

[Code § 1556, without change. Omitted by Board as covered by rule 37.]

§ 1047. Final judgment on report; effect thereof. Upon
the confirmation by the court of the report of the commis-
sioners making partition, final judgment that the partition be
firm and effectual forever must be rendered, which is binding and
conclusive upon the following persons:

1. The plaintiff; each defendant upon whom the summons was
served, either personally or without the state or by publication[[,
pursuant to an order obtained for that purpose, as prescribed in
chapter fifth of this act]; and the legal representatives of each
party specified in this subdivision. [So much of section 445 of
this act, as requires the court to allow a defendant to defend an
action, after final judgment, does not apply to an action for par-
tition.J
Crvit Practice Act 515

2. Each person claiming from, through or under such a party,
by title accruing after the filing of the judgment-roll, or after the
filing in the proper county clerk’s office of a notice of the pend-
ency of the action[[, as prescribed in article ninth of this title].

3. Each person not in being when the interlocutory judgment
is rendered who, by the happening of any contingency becomes
afterwards entitled to a beneficial interest attaching to, or an
estate or interest in, a portion of the property, the person first
entitled to which, or other virtual representative whereof, was a
party specified in the first subdivision of this section.

But this section does not apply to a party whose right and
interest are expressly reserved and left unaffected[[, as prescribed
in section 1539 of this act], or to a person claiming from, through
or under such a party.

[Code § 1557. The second sentence of subd. 1 is to be included under
“Parties” and combined with § 445 of the Code.]

§ 1048. Judgment must direct delivery of possession.
[The f] Final judgment upon confirmation of the report of com-
missioners must also direct that each of the parties who is entitled
to possession of a distinct parcel allotted to him, be let into the
possession thereof, either immediately, or after the determination
of the particular estate, as the case requires.

[Code § 1558, without change. See § 801 of report of Committee.]

§ 1049. Lien of creditor upon share partitioned. Jn an
action for partition if [If] partition of the property is made, the
lien[, whether the] of a creditor having a lien on an undivided
share or interest in the property, who is or is not made a party,
shall thereafter attach only to the share or interest assigned to the
party upon whose share or interest the lien attached; which must
be first charged with its just proportion of the costs and expenses
of the action, in preference to the lien.

[Code § 1540, last sentence without change of substance. ]

§ 1050. Costs; collection against unknown parties. The
final judgment for the partition of the property must also
award that each defendant pay to the plaintiff his proportion of
the plaintiff’s costs, including the extra allowance. The sum to
be paid by each must be fixed by the court according to the
respective rights of the parties, and specified in the judgment. If
516 Report or Joint Leaistative CoMMITTEE

a defendant is unknown, his proportion of the costs must be fixed
and specified in like manner. An execution against an unknown
defendant may be issued to collect the costs awarded against him
as if he was named in the judgment; and his right, share or
interest in the property may be sold by virtue thereof as if he
was named in the execution.

[Code § 1559, without change. Included by Board in Costs Law, § 120;
Civil Rights Law, § 111.]

§ 1051. Sale of property; when directed. If the commis
sloners or a majority of them report that the property, or a
particular lot, tract or other portion thereof is so circumstanced
that a partition thereof cannot Le made without great prejudice
tu the owners thereof, the court, if it is satisfied that the report is
just and correct, [may] thereupon, except as otherwise expressly
prescribed in this article, may modify the interlocutory judgment
or render a supplemental interlocutory judgment reciting the facts
and directing that the property or the distinct parcel thereof so
circumstanced be sold [by a referee, designated in the judgment,
or by the sheriff].

[Code § 1560. The portion omitted is covered elsewhere.]

§ 1052. Reference to inquire as to creditors. Before an
interlocutory judgment for the sale of real property is rendered in
an action for partition, the court [must], either with or without ap-
plication by a party, must direct a reference to ascertain whether
there is any creditor not a party who has a lien on the undivided
share or interest of any party. But the court may direct or dis-
pense with such a reference, in its discretion, where a party pro-
duces a search certified by the clerk or by the clerk and register,
as the case requires, of the county where the property is situated,
and it appears therefrom, and by the affidavits, if anv, produced
therewith, that there is no such outstanding lien.

[Code § 1561, without change. Omitted by Board as covered by general
provisions. ]

§ 1053. Duty of referee. Where a reference is directed,
as prescribed in the last section, the referee must canse a notice to
be published once in cach week for six successive weeks in such
newspaper published in the county wherein the place of trial is
designated as shall be designated by the court directing said
Crvit Practice Act 517

reference, and also in a newspaper published in each county
wherein the property is situated, requiring each person not a
party to the action who, at the date of the order, had a lien upon
any undivided share or interest in the property, to appear before
the referee at a specified place and on or before a specified day
to prove his lien and the true amount due or to become due to him
by reason thereof. The referee must report to the court with all
convenient speed the name of each creditor whose lien ig satis-
factorily proved before him, the nature and extent of the lien, the
date thereof and the amount due or to become due thereupon.

[Code § 1562, without change. The first part of section omitted by Board.
The last sentence included in Board rule 272, subd. 4.]

§ 1054. Money to be paid into court. If it appears by
the pleadings or by the evidence in the action or by the report
that there was, at the date of the order, any existing lien upon the
share or interest of a party in the property, the interlocutory judg-
ment directing the sale must also direct the officer making it to
pay into court the portion of the money arising from the sale of
the share or interest of that party after deducting the portion of
the costs and expenses for which it is lable.

[Code § 1563, without change. Omitted by Board, as covered by general
provisions. ]

§ 1055. Application for money. Where money is paid
into court, in a case specified in the last section, the party may
apply to the court for an order directing that the money, or such
part thereof as he claims, be paid to him, and the court must make
such an order as justice requires.

[Code § 1564, first and last sentences, without change of substance.]

§ 1056. Payment of incumbrances. When the whole amount
of the unsatisfied liens upon an undivided share, which
were existing at the date of the order of reference, has been ascer-
tained, the court must order the portion of the money so paid into
court on account of that share to be distributed among the
eveditors having the liens, according to the priority of each of
them. Where the incumbrancer is not a party to the action, the
clerk or other officer by whom a lien is paid off must procure
satisfaction thereof to be acknowledged or proved, as required by
law, and must cause the incumbrance to be duly satisfied or can-
518 Report or Jom Learsiative CoMMITTEE

celled of record. The expense of so doing must be paid out of the
portion of the money in court belonging to the party by whom
the incumbrance was payable.

{Code § 1565, without change. Omitted by Board as covered by its rule 50.]

§ 1057. Other parties not to be delayed. The proceedings to
ascertain and settle the liens upon an undivided share [as pre-
scrihed in the last three sections, shall not affect any other party
to the action or delay the paying over or investing of money to or
for the benefit of any other party upon whose share or interest
in the property there does not appear to be any existing lien.

[Code § 1566, without change of substance. Included by Board in Real
Property Law, § 549.]

§ 1058. When land to be sold free from decedent’s debts.
Where the interlocutory judgment directs a sale of the premises
sought to be partitioned or of some part thereof, the judg-
ment [may], in the discretion of the court, may direct that the
premises so sold [pursuant to such interlocutory judgment] shall
be free from the lien of every debt of any such decedent [or
decedents], except debts which were a lien upon the premises
hefore the death of such decedent [or decedents].

[Code § 1538, sixth sentence, rewritten without change of substance.
Included by Board in Real Property Law, § 562.]

§ 1059. When proceeds to be paid into court. When the
action is brought before eighteen months have elapsed from
the granting of [such] letters of administration or letters testa-
mentary, as the case may be, upon the estate of a decedent from
whom the plaintiff derived his title, and the interlocutory judg-
ment directs, as above provided.J that the premises shall be sold
tree from the lien of debts, the final judgment shall direct that the
proceeds of the sale remaining after the payment of the costs,
referee’s fees, expenses of sale, taxes, assessments, water rates, and
liens established before the death of the decedent, including any
sum allowed to a widow in satisfaction of her right of dower, therein
directed to be paid, be [forthwith] paid forthwith into court by
the referee making such sale by depositing the same with the county
{rensurer of the county in which the trial of the action is placed.
to the credit of the parties entitled thereto, to await the further
order in the premises. Where the action is brought before eighteen
Civi, Practicr Act 519

months have elapsed from the granting of letters of administra-
tion or letters testamentary, as the case may be, upon the estate
of'a deceased person, who, if living, should be a party to the action,
and the interlocutory judgment directs, as above provided,] that
the premises shall be sold free from the lien of debts, the final
judgment shall direct that the share of the proceeds of such sale,
which would have been his, if living, be paid into court by such
referee, by depositing the same with such county treasurer to
await the further order in the premises.

[Code § 1538, seventh and eighth sentences, without change.]

§ 1060. Disposition of deposit. Upon the certificate of the
surrogate of the county of which [the] any such decedent was a
resident at the time of his death, [u resident,] showing that
eighteen months have elapsed since the issuing of letters testa-
mentary or letters of administration, as the case may be, upon the
estate of said decedent, and that no proceedings for the mortgage,
lease or sale of the real property of [said] such decedent for the
payment of his debts or funeral expenses, or both, is pending, and
upon the certificate of the county clerk of the county where the
real property sold under the interlocutory judgment is located,
showing that no notice of pendency of action in respect to such
real property has been filed in his office, the court wherein the final
judgment was made shall make an order, wpon the application of
any party to [said] such action, [make an order] directing the
county treasurer to pay to [said] such party from [said] such
deposit the amount to which he is entitled under the [said] final
judgment, with the accumulation thereon, if any, less the fees of
[said] the county treasurer.

[Code § 1538, ninth sentence, without change of substance.]

§ 1061. Withdrawal of deposit. Any party to such action
[may], at any time after final judgment, upon notice to the
executors or administrators of the decedent from whom the party
applying derived his share or interest, may apply to the court in
which [said] such action is pending for leave to withdraw the
deposit or the share of the deposit adjudged in the final judgment
to belong to him; and, upon [said] such application, the court
[may], in its discretion, may make an order directing the county
treasurer to pay over to [said] swch party the deposit, or the share
of the deposit, adjudged in the final judgment to belong to him,
520 Report or Jorvt Leais,tative ComMMITTEE

but [said] such order shall not be made until [said] such party
Eso applying] shall have furnished a bond to the people of the
state of New York in the penalty of twice the amount of the
deposit sought to be withdrawn, with two or more good and suffi-
cient sureties, approved by the judge or justice of the court
making such order, and filed with such approval in the office
of the clerk of the county in which such action is pending. to the
effect that such [the said] party so withdrawing [said] the
deposit will pay any and all claims, not exceeding the amount of
{said] the deposit, when thereunto required by order of the court
or by order of the surrogate or of the surrogate’s court in a pro-
ceeding to mortgage, lease or sell the real property of such
decedent. Where a final accounting has been had in the estate of
Fsaid] such decedent in a surrogate’s court, and certified copies of
the account and decree of final settlement, showing that all of the
debts of the decedent have been paid in full, is filed with the court
having jurisdiction of the fund, the court may dispense with the
giving of a bond [and direct the immediate payment of the fund
to the parties entitled thereto, subject to the provisions of article
second, title three, chapter fifteen of the code of civil procedure].

[Code § 1538, tenth and eleventh sentences, without change of substance. }

§ 1062. When proceeds payable directly to parties. [But w]
Where final judgment shall be rendered in any action for par-
tition after eighteen months have elapsed from the granting
ef letters of administration or letters testamentary, as the case
may be, upon the estate of the decedent from whom the plaintiff
derived title, and the premises shall have been sold free from
the lien of debts, [as above provided, ] then, upon producing to the
court the certificate of the surrogate of the county in which the
decedent was at the time of his death a resident, showing that
eighteen months have elapsed since the issuing of letters of admin-
istration or letters testamentary, as the case may be, upon the
estate of [said] such decedent, and that no proceeding for the
mortgage, lease or sale of the real property of the decedent for the
payment of his debts or funeral expenses, or both, is pending, and
upon the certificate of the clerk of the county where the real prop-
erty sold under the interlocutory judgment is located showing that
no notice of pendency of action in respect to such real property
has been filed in his office, the court rendering the final judgment
shall direct the payment of the different shares to the several
Crvit Practice Act 521

parties entitled thereto; except that the share of a deceased per-
son, who, if living, should be a party to the action, shall be paid
into court [as above provided], unless eighteen months have also
clapsed since the granting of letters of administration or letters
testamentary, as the case may be, upon the estate of said last men-
tioned deceased person, and like certificates of the surrogate and
county clerk are produced to the court.

[Code § 1538, last sentence, without change of substance.]

§ 1063. Sale or exception of dower interest. Where a
party has an existing right of dower in the entire property directed
to be sold, at the time when an interlocutory judgment for a sale
is rendered in an action for partition, the court must consider and
determine whether the interests of all the parties require that the
right of dower should be excepted from the sale or that it should
be sold.

[Code § 1567, without change. Omitted by Board.]

§$ 1064. Effect of sale of dower interest in entire property.
If a sale of the property, including the right of dower, is
directed, the interest of the party entitled to the right of
dower shall pass thereby; and the purchaser, his heirs and assigns,
shall hold the property free and discharged from any claim by
virtue of that right. In that case, the dowress is entitled to
receive from the proceeds of the sale of the whole property a
gross sum in satisfaction of her right of dower, or to have one-
third of those proceeds paid into court for the purpose of being
invested for her benefit, .as prescribed in the next section with
respect to the dowress of an undivided share.

[Code § 1568, without change. Included by Board in Real Property Law,
§ 561.)

§ 1065. Disposition of money belonging to tenant of par-
ticular estate in undivided share sold. A party to an action
for partition who has a right of dower, or is a tenant for life or
for years, in or of an undivided share of the property sold, is
entitled to receive from the proceeds of the sale a gross sum to
be fixed according to the principles of law applicable to annuities,
in satisfaction of his or her estate or interest. The written con-
sent of the party to receive such a gross sum, acknowledged or
proved, and certified, in ike manner as a deed to be recorded.
522 Reporr or Jornt Leaistative CoMMITTEE

must be filed at the time of or before the filing of the report of
sale; otherwise the court, must direct that, out of the proceeds of
the sale which belong to the undivided share to which the estate
or interest attaches, one-third, in case of a dowress, and in any
cther case arising under this section, the entire proceeds, or such
é proportion thereof as fairly represents the interest of the holder
of the particular estate, be paid into court for the purpose of
being invested for his or her benefit.

[Code § 1569, first two sentences, without change. Included by Board in
part in Real Property Law, § 554.]

§ 1066. Consent by guardian or committee of tenant of
particular estate to accept gross sum. If it shall appear
to the court that the tenant for life or for years, or the widow, is
an infant, lunatic or otherwise incompetent, and that a general
guardian or committee has been duly appointed, upon proof that
it will be for the best interest and advantage of the estate of such
infant or lunatic or incompetent person, the court may authorize
and direct such guardian or committee. in the name of such infant,
lunatic or incompetent person, having such estate for life or years,
or dower right, to execute an instrument under seal, acknowledged
or proved and certified in like manner as a deed to be recorded,
whereby such guardian or committee shall consent to accept in leu
of such estate or dower a sum to be ascertained by the court as
Labove] provided in the last preceding section, according to the
principles applicable to life annuities; and upon presentation of
such an instrument to the court, the value of the estate for life or.
for years or dower so ascertained by it shall be paid to such
euardian or committee. Such instrument shall have the same
force and effect as a deed or instrument executed and acknowl-
edged hy a competent person or a person of full age.

[Code § 1569, last two sentences, without change of substance.]

§ 1067. Interest of owners of future estates, in proceeds
of sale, to be protected. Where it appears that a party to
the action has an inchoate right of dower or any other future right
or estate, vested or contingent, or that any person or persons not in
heing who [may] by any contingency may become entitled to any
interest or estate in the property sold, the court must fix the pro-
vortional valne of the right or estate, according to the principles of
Jaw applicable to annuities and survivorships, or set aside so much
of the proceeds of sale to which the contingency attaches, and
Civin Practrics Act 523

must direct that proportion of the proceeds of the sale to be
invested, secured or paid over, in such a manner as it deems
calculated to protect the rights and interests of the parties.

[Code § 1570, without change. Included by Board in Real Property Law,
§ 555.)

§ 1068. Married woman may release her interest. A mar-
ried woman may release to her husband her inchoate right of
dower in the property directed to be sold, by a written instrument,
duly acknowledged by her and certified, as required by law with
respect to the acknowledgment or a conveyance to bar her dower;
which must be filed with the clerk. Thereupon, the share of the
proceeds of the sale arising from her contingent interest must be
paid to her husband.

[Code § 1571, without change. Included by Board in Real Property Law,
§ 219-b, under “ Dower.”’]

§ 1069. Unknown owners to be protected. If a person
entitled to an estate or interest in the property sold is made a
party as an unknown defendant, the court must provide for the
protection of his rights, as far as may be, as if he was known and
had appeared.

[Code § 1572, without change. Included by Board in Judiciary Law,
§ 31-f.]

§ 1070. Credit on sale. The court [must], in the interlocutory
judgment for a sale, must direct the terms of credit which may
be allowed for any portion of the purchase-money, of which it
thinks proper to direct the investment, and for any portion of the
purchase-money which is required to be invested for the benefit
of a person, as prescribed in this article. The portion of the pur-
chase-money for which credit is so allowed must always be
secured at interest by a mortgage upon the property sold, with a
bond of the purchaser; and by such additional security, if any, as
the court prescribes. The officer making the sale may take sepa-
rate mortgages and other securities in the name of the countv
treasurer of the county in which the property is situated for such
convenient portions of the purchase-money as are directed by the
court to be invested: and in the name of the owner, for the share
of any known owner of full age who desires to have it invested.

[Code §§ 1573, 1574, 1575, without change. Included by Board in Real
Property Law, §§ 559, 563.)
524 Rerorr or Jomnt Lueistative CoMMITTEE

§ 1071. Report of sale. Immediately after completing the
sale, the officer making it must file with the clerk his report thereof
under oath, containing a description of each parcel sold, the name
of the purchaser thereof and the price at which it was sold.

[Code § 1576, without change. Included by Board in Real Property Law,
§ 564.]

§ 1072. Final judgment after confirmation of sale. If
the sale is confirmed by the court, a final judgment must be
entered confirming it accordingly, directing the officer making it
to execute the proper conveyances and take the proper securities
pursuant to the sale, and also directing concerning the applica-
tion of the proceeds of the sale. Such.a final judgment is binding
and conclusive upon the same persons upon whom a final judg-
inent for actual partition is made binding and conclusive by this
article [section 1557 of this act]; and it effectually bars each of
those persons who is not a purchaser at the sale from all right,
title and interest in the property sold.

[Code § 1577, without change of substance. Second sentence included by
Board in Real Property Law, § 558.]

§ 1073. Effect upon incumbrancers of final judgment after
confirmation of sale. Such a final judgment is also a bar against
each person not a party who [hasJ, at the time when it is
rendered, has a general lien by judgment or decree on the undi-
vided share or interest of a party, if notice was given to appear
before the referee and make proof of liens, as prescribed in this
article [section 1562 of this act], and also against each person
made a party who then has a specifie lien on any such undivided
share or interest; but a person having any such specific lien
appearing of record at the time of the filing of the notice of the
pendency of the action, who is not made a party, is not affected
by such judgment.

[Code § 1578, without change of substance. Included by Board in Real
Property Law, § 558, subd. 5.]

§ 1074. Costs of action and expenses of sale; how paid.
Where final judgment confirming a sale is rendered, the costs of
each party to the action and the expenses of the sale, including
the officer’s fees, must be deducted from the proceeds of the sale,
and each party’s costs must be paid to his attorney. But the court
[may], in its discretion, may direct that the costs and expenses of
Crvin Practice Acr 525

any trial, reference or other proceeding in the action be paid out of
the share of any party in the proceeds, or may render judgmert
against any party therefor. Where a proportion of the proceeds
is to be paid to or invested for the benetit of any person, as pre-
scribed in any provision of this article, the amount thereof must
be determined by the residue of the entire proceeds remaining
after deducting the costs and expenses chargeable against them.

[Code § 1579, without change. First two sentences included by Board in
Costs Law, § 120.]

§ 1075. Distribution of proceeds; duties of officer making
sale. The proceeds of a sale, after deducting therefrom the
costs and expenses chargeable against them, must be immedi-
ately awarded to the parties whose rights and interests have been
sold, in proportion thereto. The :um chargeable upon any share
to satisfy a lien thereon must be paid to the creditor, or retained,
subject to the order of the court; and the remainder, except as
otherwise prescribed in this article, must be paid by the officer
making the sale, to the party owning the share or his legal repre-
sentatives or into court for his use. Wuthin sixty days after the
entry of final judgment, unless such time be extended by an order
of the court entered in the office of the clerk within said sixty
days, the officer making the sale must file with the clerk his report
under oath of the disposition of the proceeds of the sale, accom-
panied by the vouchers of the persons to whom payments were
ordered to be made.

[Code § 1580; without change. Omitted by Board as covered by rule 50.]

§ 1076. Payment of taxes, assessments and water rates
out of proceeds of sale. Where a judgment rendered in an action
for partition, for dower, or to foreclose a mortgage upon real
property, directs a sale of the real property, the officer making
the sale must pay out of the proceeds, unless the judgment other-
wise directs, [pay] all taxes, assessments and water rates, which
are liens upon the property sold, and redeem the property sold
from any sales for unpaid taxes, assessments or water rates, which
have not apparently become absolute. The sums necessary to
make those payments and redemptions are deemed expenses of
the sale, within the meaning of that expression as used in any
provision of this article [second, third, or fourth of this titleJ

[Code § 1676, so far as relates to partition.1
526 Reporr or Joint Leaisiative ‘COMMITTEE

§ 1077. Shares of infants. Where a party entitled tu
receive a portion of the proceeds is an infant, such portion may be
disposed of as follows: 4

1. The court may direct it to be invested in permanent
securities in the name and for the benefit of the infant,
or it may direct it to be paid over to the general guardian
of the [said] infant when the guardian shall have executed to such
infant a bond with two sureties which shall be approved by the
court; or,

2. If any of the moneys arising from the proceeds of such
sale shall have been paid to the county treasurer, and on due
proof that such money has remained uninvested in permanent
securities for the space of three months, the court may direct the
same to be paid to the general guardian of such infant upon his
giving an undertaking in an amount and with securities satis-
factory to the court for the faithful execution of his trust; or

8. In the case of an infant residing without the state and hav-
ing in the state or country where he or she resides a general
guardian or person duly appointed under the laws of such state
or country to the control, and entitled by the laws of such state
or country to the custody, of the money of such infant, the court,
upon satisfactory proof of such facts and of the sufficiency of the
bond or security given by such general guardian or person in such
state or country by the certificate of a judge of a court of record
of such state or country, or otherwise, may direct that the portion
of such infant arising upon such sale shall be paid over to such
general guardian or person.

[Code § 1581, without change of substance. Included by Board in
Domestic Relations Law, § 66-d.]

§ 1078. Shares of unknown and absent owners. Where
a person has been made a defendant as an unknown person, or
where the name of a defendant is unknown, or where the sum-
mons has been served upon a defendant without the state or by
publication, and he has not appeared in the action, the court must
direct his portion to be invested in permanent securities at
interest, for his benefit, until claimed by him or his legal repre-
sentatives.

[Code § 1582, first clause, without. change. Included by Board in Real
Property Law, § 556.)
Crviu Practice Act 527

§ 1079. Judicial inquiry as to unknown heirs with refer-
ence to disposition of unclaimed proceeds. [But a] After
the lapse of twenty-five years from the time of the payment into
court or to the treasurer of any county of any portion of the pro-
ceeds of the sale of real property for unknown heirs, heretofore
or hereafter to be made in any action of partition, without any
claim therefor having been made by any person entitled thereto,
aud upon there being made and presented to the court, at a
special term thereof, proof, by petition or otherwise, showing te
the satisfaction of the court that due inquiry for such unknown
heirs or their representatives has been made and that they can-
not be found, and that no claim has been made for such portion of
said proceeds by any person entitled thereto, proceedings shall
thereupon be taken in said court and an investigation had therein
as to the heirship, death or whereabouts of such unknown heirs or
their representatives, and as to the known heirs of the ancestor of
such unknown heirs, the next of kin, representatives and dis-
tributees of such known heirs, and as to all persons interested in
such proceeds, and their respective interests therein, and the said
court [shall], by an order made in the action, shall direct that a
notice entitled in the action and signed by the petitioner or his
attorney, and directed to such unl:nown heirs or their representa-
tives, and to known heirs, their next of kin, representatives or dis-
tributees, and all persons interested in such proceeds, be served
upon them by the publication thereof, the same to be published
once in each week for six successive weeks in a newspaper pub-
lished in the county where the action was brought, and in such other
newspapers as the court may direct, ordering and requiring such
unknown heirs or their representatives, and all known heirs, their
next of kin or representatives, and all persons interested in such
proceeds,.and each of them, to he and appear in said court at a
special term thereof at a time and place to be specified in said
order and notice, and at least six weeks from the date of the first
publication of such notice, to then and there establish their heir-
ship and identity, kinship and interest, and submit any proof as
to such unknown heirs or their representatives, and the known
heirs, their next of kin, representatives or distributees, and all per-
sons interested and their interest in such proceeds. they mav
desire, and that in case of their default in so doing, that the said
proceeds will be distributed and paid over to the known heirs of
the ancestor from whom such unknown heirs derived title thereto,
and to their heirs, next of kin, representatives, distributees and
528 Report or Jornt Leaistative CoMMITTEE

assigns, and that they and each of them shall thereafter be forever
barred of and from all and every cause or causes of action for such
proceeds, or on account thereof, or growing out of the distribution
thereof, and of and from all right, title, claim and interest in and
to such proceeds, and shall be deemed to have surrendered all
right, claim and interest in and to such proceeds.

[Code § 1582, part of first sentence without change. Included by Board
in Real Property Law, § 565.]

§ 1080. Service of notice of hearing. The order must con-
tain a direction that a copy of the notice [must] be served on
each of the persons named in the order, if within the state, in the
manner prescribed for the service of a summons on a defendant
in an action in the supreme court, at least twenty days before the
time specified in the notice. The publication of such notice, as
required by said order, is hereby made and shall be deemed and
taken for all purposes to be due and complete service upon each
and every of such unknown heirs or their representatives, and
the known heirs, their next of kin, and representatives, and all
persons interested in such proceeds, of due notice of the proceed-
ings to distribute and pay out such proceeds, and shall be con-
clusive upon each and all of them. Proof of such personal service
may be made by the affidavit of the person making the same and
proof of the publication of such notice may be made by affidavit
of the publisher of such paper or papers.

[Code § 1582, pt., without change.]

§ 1081. Dismissal of proceeding if all parties interested
appear. At the time and place specified in the said order
and notice, such unknown heirs or their representatives, and all
known heirs, their next of kin, representatives or distributees,
devisees, and all persons interested in such proceeds, shall appear
in court, in person or by attorney, and make proof establishing
their heirship and identity, kinship and interest in such proceeds,
and upon proof being made to the satisfaction of the court of the
heirship and identity of the unknown heirs, the proceeding for
distribution shall be dismissed.

[Code § 1582, pt., without change.]

§ 1082. Disposition of proceeds among known heirs. [and]
I f such unknown heirs or their representatives do not. so
appear in court at the time and place specified in such notice
Civin Practice Act 529

and order to establish their heirship and identity, kinship or inter-
est, they and each of them, and every person claiming under or
through them, shall thereafter be forever barred of and from
all and every cause or causes of action for such proceeds,
or on account thereof, or growing out of the distribution of
such proceeds, and of and from all right, title, claim and
interest in and to such proceeds, and shall be deemed to
have surrendered all right, claim and interest in and to
such proceeds. And upon proofs being made of such publica-
tion, and showing to the satisfaction of the court that such
unknown heirs or their representatives cannot be found, or
are dead, the [said] court shall have power to decree accordingly,
and to decree that the share or interest of such unknown heirs in
such real property was vested, at the time of such sale, in the
known heirs of the ancestor from whom such unknown heirs
derived title thereto, and to decree that the unclaimed portion of
such proceeds was vested at the time of such payment in such
known heirs, and that such heirs, their heirs, next of kin, repre-
sentatives, distributees, devisees and assigns are entitled thereto;
and the [said] court shall make an order in such action directing
the payment to them, or their assigns, of the respective shares or
portions of or interest in such proceeds to which they are entitled;
[and] which order shall be entered in the office of the clerk of the
county where the original action was brought, and after having
been so entered for three months shall be conclusive evidence of
the regularity of the proceedings upon which it is based and of
all the facts set forth therein; and, upon serving upon the county
treasurer a certified copy of such order, the treasurer shall so pay
over and distribute such proceeds, after deducting his lawful com-
missions, and shall thereupon be exempt from all liability on
account thereof; and if any such proceeds shall have been paid
over by any county treasurer to the treasurer of the state of New
York, [under the provisions of section seven hundred and fifty-
three of this act,] due notice of said applications and proceedings
shall be given to the comptroller of the state of New York, and the
said proceeds shall be paid out by the treasurer of the state of New
York upon the production of a properly certified copy of an order
of the court, [as provided by section seven hundred and fifty-one
and seven hundred and fifty-three of this act,] and upon such pay-
ment he shall thereupon be exempt from all liability on account
thereof.

[Code § 1582, pt., without change of substance.)
5380 Rervort or Joint Legistative CoMMITTEE

§ 1083. Shares of tenants of particular estates; invest-
ment and income. Where a portion of the proceeds representing
an undivided share or interest is invested for the benefit of a
tenant for life, or for years, or of a widow, as prescribed in the
foregoing provisions of this article, the court must cause it to be
invested in permanent securities at interest, and the interest to
be paid, from time to time as it accrues, to the person for whose
benefit it is invested, while his or her right continues.

[Code § 1583, without change. Included by Board in Real Property Law,
§ 557.]

§ 1084. Court may require security to refund. The court
[may], in its discretion, may require any person, before he
receives his portion of the proceeds of the sale to give such security
as it directs, to the people, or to such parties or other persons as it
prescribes, to refund the same, or a portion thereof, with interest,
if it thereafter appears that he was not entitled thereto.

[Code § 1584, without change. Included by Board in Judiciary Law,
§ 8l-e.]

§ 1085. Security to be taken in name of county treasurer;
action thereon. A security taken under any provision of this
article, except as otherwise specially prescribed therein, must
be taken in the name and official title of the county treasurer
of the county in which the property sold is situated. He
and his successors in cflice must hold the same for the use and
benefit of the persons interested, subject to the order of the court.
[§ 1586. The court may in its discretion, and upon such terms
and conditions as justice requires, make an order, allowing a per-
son interested in a security specified in the last section, to main-
tain an action thereupon in the name of the county treasurer. ]

[Code § 1585, without change. Code § 1586, omitted as unnecessary. See
Committee’s proposed § 242.)

§ 1086. Compensation to equalize partition. Where it
appears that partition cannot be made equal between the parties
according to their respective rights without prejudice to the rights
cr interests of some of them, the final judgment may award com-
pensation to be made by one party to another for equality of par-
tition. But compensation cannot be so awarded against a party
who is unknown or whose name is unknown. Nor ean it be
Crvit Practices Act 531

awarded against an infant unless it appears that he has personal

property sufficient to pay it and that his interests will be pro-
moted thereby.

[Code § 1587, without change. Included by Board in Real Property Law,
§ 550.]

§ 1087. Judgment as to parties having interest in entire
property. [The plaintiff may, at his election, make] Jf, in
an action of partition, a tenant by the curtesy, for life or for years,
of the entire property, or @ person [[whoever may be] entitled to a
contingent or vested remainder or reversion in the entire property,
or a creditor, or other person, having a lien or interest which
attaches to the entire property, be made a defendant in the
action[. In that case], the final judgment either may [either]
award to such a party his or her entire right and interest, or the
proceeds thereof, or where the right or interest is contingent, direct
that the proceeds or share thereof be substituted for the property
and invested for whoever may eventually be entitled thereto, or
may reserve and leave unaffected his or her right and interest, or
any portion thereof. [[A person specified in this section, who is
not made a party, is not affected by the judgment in the action.]

[Code § 1539, without change of substance. The last sentence is in a pre-
ceding section. ]

§ 1088. Rents and profits may be adjusted. [Nothing
contained in this article prevents] The court [from adjusting], in
the interlocutory or final judgment, or otherwise, as the case
requires, may adjust the rights of one or more of the parties as
against any other party or parties, by reason of the receipt by the
latter of more than his or their proper proportion of the rents or
profits of a share or part of a share.

[Code § 1589, without change of substance.]

§ 1089. Exemplified copy of judgment may be recorded.
An exemplified copy of the judginent-roll or of the final judgment
in an action for partition may be recorded in the office for record-
ing deeds in each county in which any real property affected
thereby is situated.

[Code § 1595, without change. Included by Board in Real Property Law,
§ 333.]
532 Report or Jornt LeaistaAtive CoMMITTEE

ARTICLE 66
ACTION TO FORECLOSE A MORTGAGE

Section 1090. Action to foreclose after recovery of judgment for

mortgage debt.

1091. Action for mortgage debt subsequent to beginning
foreclosure.

1092. Parties.

1093. Notice of pendency of action to be filed.

1094. When complaint to be dismissed on payment of
sum due.

1095. Final judgment must direct sale.

1096. Judgment for deficiency.

1097. Payment after judgment; when proceedings to be
stayed.

1098. Effect of conveyance upon sale.

1099. Sale where mortgage debt is. not all due.

1100. Payment of taxes, assessments and water rates out
of proceeds of sale. :

1101. Report of officer making sale.

§ 1090. Action to foreclose after recovery of judgment
for mortgage debt. Where final judgment for the plaintiff has
been rendered in an action to recover any part of the mortgage
debt, an action shall not be commenced or maintained to foreclose
the mortgage, unless an execution against the property of the
defendant has been issued upon the andement to the sheriff of the
county where he resides, if he resides within the state, or if he
resides without the state, to the sheriff of the county where the
judgment-roll is filed; and has been returned wholly or partly
unsatisfied.

[Code § 1630, without change. Included by Board in Real Property Law,
§ 498.]

§ 1091. Action for mortgage debt subsequent to begin-
ning foreclosure. While an action to foreclose a mortgage upon
real property is pending or after final judgment for the plaintiff
therein, no other action shall be commenced or maintained to
yecover any part of the mortgage debt, without leave of the court
in which the former action was brought.

[Code § 1628, without change. Included by Board in Real Property Law,
§ 499.]
Crviz Practice Act 533

§ 1092. Parties. Any person who is liable to the plaintiff
for the payment of the debt secured by the mortgage may be
made a defendant in the action[[; and if he has appeared or has
been personally served with the summons, the final judgment may
award payment by him of the residue of the debt remaining
unsatisfied, after a sale of the mortgaged property, and the appli-
cation of the proceeds, pursuant to the directions contained
therein]. The people of the state of New York may be made a
party defendant to an action for the foreclosure of a mortgage
on real property, where the people of the state of New York have
an interest in or a lien on the said real property subsequent to
the lien of the mortgage sought +o be foreclosed in said action, in
the same manner as a private person.

[First sentence is Code § 1627, first clause, subd. 1, without change.
Omitted by Board as covered by rules relating to “Parties.” The matter

included in brackets is made a separate section, post. Last sentence is Code
§ 1627, subd. 2. first sentence.]

§ 1093. Notice of pendency of action to be filed. The plain-
tiff [must], at least twenty days before a final judgment directing
a sale is rendered, must file in the clerk’s office of each county
where the mortgaged property is situated a notice of the pendency
of the action, [as prescribed in section sixteen hundred and
seventy of this act;} which must specify, in addition to other par-
ticulars required by law [that section], the date of the mortgage,
the parties thereto and the time und place of recording it.

[Code § 1631, without change of substance. See Board rule 31.]

§ 1094. When complaint to be dismissed on payment
of sum due. Where an action is brought to foreclose a mortgage
upon real property upon which a portion of the principal or inter-
est is due, and another portion of either is to become due, the com-
plaint must be dismissed, without costs against the plaintiff, upon
the defendant paying into court, at any time before a final judg-
ment diyecting a sale is rendered, the sum due and the plaintif’s
costs.

[Code § 1634, without change. Included by Board in rule 70 and combined

with § 1506, relating to actions to recover real property on non-payment
of rent.]

§ 1095. Final judgment must direct sale. In an action
to foreclose a mortgage upon real property, if the plaintiff becomes
534 Rerort or Joint Lugistartve ComMITTEE

entitled to final judgment, it must direct the sale of the property
mortgaged or of such part thereof as is sufficient to discharge the
mortgage debt, the expenses of the sale and the costs of the action.

[Code § 1626, without change. Included by Board in Real Property Law,
§ 502.)

§ 1096. Judgment for deficiency. [Any] Jf @ person
who is liable to the plaintiff for the payment of the debt secured
by the mortgage [may be] is made a defendant in the action,
and [if he] has appeared or has been personally served with
the summons, the final judgment may award payment by him of
the residue of the debt remaining unsatisfied, after a sale of the
mortgaged property, and the application of the proceeds, pursuant
to the directions contained therein.

[Code § 1627, subd. 1, without change.]

§ 1097. Payment after judgment; when proceedings to
be stayed. [In a case specified in the last section,J Where
an action is brought to foreclose a mortgage upon real property
upon which a portion of the principal or interest is due and
another portion of either is to become due, if, after a final judg-
ment directing a sale is rendered, but before the sale is made, the
defendant pays into court the amount due for principal and inter-
est and the costs of the action, tegether with the expenses of the
proceedings to sell, if any, all proceedings upon the judgment must
be stayed; but, upon a subsequent default in the payment of prin-
cipal or interest, the court mav make an order directing the
enforcement of the judgment for the purpose of collecting the sum
then due.

[Code § 1635, without charge of substance. Included by Board in Real
Property Law, § 501.)

§ 1098. Effect of conveyance upon sale. A conveyance upon
a sale made pursuant to a final judgment in an action to
foreclose a mortgage upon real property vests in the Purchaser
the same estate only «hat would have vested in the mortgagee if
the equity of redemption had been foreclosed. Such a conveyance
is as valid as if it was executed by the mortgagor and mortgagee,
and is an entire bar against each of them and against each party
to the action who was duly summoned and every person claiming
from, through or under a party by title accruing after the filing
Crvin Practice Act 535

of the notice of the pendency of the action[[, as prescribed in tha
last section].

(Code § 1632, without change. Included by Board in Real Property Law,
§ 504.]

§ 1099. Sale where mortgage debt is not all due. Where
the mortgage debt is not all due, [and]

1. If the mortgaged property is so circumstanced that it
can be sold in parcels without injury to the interests of
the parties, the final judgment must direct that no more
of the property be sold in the first place than is  suffi-
cient to satisfy the sum then due, with the costs of the action
and expenses of the sale; and that upon a subsequent default
in the payment of principal or interest, the plaintiff may apply
for an order directing the sale of the residue, or of so much thereof
as 1s necessary to satisfy the amount then due, with the costs of
the application and the expenses of the sale. The plaintiff may
apply for and obtain such an order as often as a default happens.

2. If [in a case specified in the last three sections] it appears
that the mortgaged property is so circumstanced that a sale of the
whole will be most beneficial to the parties, the final judgment
must direct that the whole property be sold; that the proceeds of
the sale, after deducting the costs of the action and the expenses
of the sale, be either applied to the satisfaction of the whole sum
secured by the mortgage, with such a rebate of interest as justice
requires; or be first applied to the payment of the sum due, and the-
balance, or so much thereof as is necessary, be invested at interest
for the benefit of the plaintiff, to be paid to him from time to time
as any part of the principal or interest becomes due.

[Code §§ 1636, 1637, without change of substance. Included by Board
in Real Property Law, § 500.]

§ 1100. Payment of taxes, assessments and water rates
out of proceeds of sale. Where a judgment rendered in an
action [for partition, for dower, or] to foreclose a mortgage upon
real property directs a sale of the real property, the officer making
the sale must pay out of the proceeds, unless the judgment other-
wise directs, [pay] all taxes, assessments and water rates which
are liens upon the property sold, and redeem the property sold
trom any sales for unpaid taxes, assessments or water rates which
have not apparently become absolute. The sums necessary to
536 Report or Joint LugistativeE CoMMITTEE

make those payments and redemptions are deemed expenses of the
sale within the meaning of that expression as used in any pro-
vision of this article [second, third or fourth of this title].

[Code § 1676, so far as applicable to action for foreclosure. ]

§ 1101. Report of officer making sale. Within thirty days
after completing the sale and executing the proper convey-
ance to the purchaser, unless such time be extended by an order
ef the court entered in the office of the clerk within said thirty
days, the officer making the sale must file with the clerk his report
under oath of the disposition of the proceeds of the sale, accom-
panied by vouchers of the persons to whom payments were
ordered to be made.

"< [Code § 1633, third sentence, without change. See Board rule 50.]

ARTICLE 67
ACTION .TO RECOVER A CHATTEL

Section 1102. When action to recover a chattel cannot be

maintained,

1103. Subsequent action to recover chattel cannot be
maintained after judgment against the plaintiff.

1104. Action to recover a chattel by an assignee.

1105. Jurisdiction when replevin precedes summons.

1106. Answer of title in third person.

1107. Plaintiff may require sheriff to replevy.

1108. Prerequisites to replevy by sheriff in action to
recover a chattel.

1109. Affidavit to be delivered to sheriff in action to
recover a chattel.

1110. When defendant may require return of all or part
of chattels.

1111. Replevy of a part of the property; effect on right
of defendant.

1112. Plaintiff’s undertaking for replevin.

1113. Ilow chattels to be replevied.

1114. Disposition by sheriff of replevied chattel.

1115. Exception to plaintiff’s sureties.
Section 1116.

1117.
1118.
1119.
1120.

1121.

1122.
1123.

1124.

1125.
1126.
1127.
1128.
1129.

1130.

1131.
1132.
1183.

1134,
1135.

1136.
1137.
1138.
11389.
1140.
1141.

1142.

11438.
1144.

Civit Practicn Act 537

When defendant may reclaim chattel; proceedings
thereupon,

Sureties; when and how to justify.

When and to whom sheriff must deliver chattel.

Penalty for wrong delivery by sheriff.

Claim of title by third person; proceedings there-
upon.

Action against sheriff by third person claiming
chattel.

Indemnity to sheriff by plaintiff.

When agent or attorney may make affidavit for
replevin or return.

Second and subsequent replevin; proceedings
thereupon.

Replevin where order of arrest has been granted.

Return by sheriff.

Failure of sheriff to make return.

Replevin papers to be made part of judgment-roll.

Action to recover « chattel not affected by failure
to replevy.

When and how plaintiff may abandon his claim
as to part.

Damages for injury or depreciation of chattel.

Defendant may demand judgment for return.

Verdict, report or decision in auction to recover a
chattel; what to state.

Substitute in certain cases for finding as to value
in action to recover a chattel.

Verdict, report or decision for part of several chat-
tels; judgment thereupon.

Damages, how ascertained on default.

Final judgment.

Lien of judgment in action to recover a chattel.

Execution; contents thereof.

Sheriff’s power to take chattel under execution.

Action on undertaking maintainable only after
return of execution.

Sheriff’s return as evidence in action on undertak-

ing.
Defense in action on undertaking.
Abatement and revival of action.
5388 Report or Jornr Leorsnative CoMMITTEE

§ 1102. When action to recover a chattel cannot be
maintained. An action to recover a chattel cannot be maintained
in either of the following cases:

1, Where the chattel was taken by virtue of a warrant against
the plaintiff for the collection of a tax, assessment or fine issued
in pursuance of a statute of the state or of the United States,
unless the taking was, or the detention is, unlawful[[, as specified
in section sixteen hundred and ninety-five of this act].

2. Where it was seized by virtue of an execution or a war-
rant of attachment against the property of the plaintiff or of any
person from or through whom the plaintiff has derived title since
the seizure thereof, unless it was legally exempt from such seizure
or is unlawfully detained, as specified in section sixteen hundred
and ninety-five of this act].

3. Where [is] it was seized by virtue of an execution or a
warrant of attachment against the property of a person other than
the plaintiff and at the time of the commencement of the action
the plaintiff had not the right to reduce it into his possession.

[Code § 1690, without change of substance. Included by Board in Per-
sonal Property Law, § 79.]

§ 1103. Subsequent action to recover chattel cannot be
maintained after judgment against the plaintiff. Where a
chattel is replevied in an action to recover the same, and a final
judgment awarding the possession thereof to the defendant is
rendered, a subsequent action to recover the same chattel cannot
be maintained by the plaintiff for the same cause of action. But
the judgment does not affect his right to maintain an action to
recover damages for taking or detaining the same or any other
chattel unless it was rendered against him upon the merits.

(Code § 1691, without change. Included by Board in Personal Property
Law, § 69-d.]

§ 1104. Action to recover a chattel by an assignee. An
action to recover a chattel, the title to which has been trans-
ferred to the plaintiff since the wrongful taking or during the
wrongful detention thereof, with or without the damages sustained
by the taking, withholding or detention, mav be maintained in
any case where, except for the transfer, such an action might be
maintained by the person from or through whom the plaintiff
derives title; but not otherwise.

[Code § 1692, without change. Included by Board in Personal Property
Law, § 79-a.]
Civin Practice Act 539

§ 1105. Jurisdiction when replevin precedes summons.
Where a chattel is replevied before the service of the sum-
mons, as prescribed in this article, the seizure thereof by the
sheriff is regarded as equivalent to the granting of a provisional
_remedy, for the purpose of giving jurisdiction to the court and
enabling it to control the subsequent proceedings in the action;
and as equivalent to the commencement of the action, for the
purpose of determining whether the plaintiff is entitled to main-
tain the action or the defendant is liable thereto.

[Code § 1698, without change of substance. Omitted by the Board which
treats replevin as a provisional remedy.]

§ 1106. Answer of title in third person. The defendant,
[may] by answer, may defend on the ground that a third person
was entitled to the chattel, without connecting himself with the
latter’s title.

[Code § 1723, without change. Included by Board in Personal Property
Law, § 79-i.]

§ 1107. Plaintiff may require sheriff to replevy. The
plaintiff [may], when the summons is issued, or at any time after-
wards and before the service of a copy of the defendant’s answer,
or, where judgment is taken by default for want of an appearance
or pleading, before the entry of the final judgment, may cause the
chattel, to recover which the action is brought, to be replevied by
the sheriff of the county where it is found.

[Code § 1694, first sentence, without change.]

§ 1108. Prerequisites to replevy by sheriff in action to
recover a chattel. For [that] the purpose of requiring a
sheriff to replevy in an action to recover a chattel, [he] the plain-
tiff must deliver to the sheriff an affidavit and a written under-
taking, as prescribed by rule [in the following sections of this
article], with a written requisition indorsed upon or annexed to
the affidavit and subscribed by his attorney to the effect that the
cheriff is required to replevy the chattel described therein. The
requisition may be directed to the sheriff of a particular county
or generally to the sheriff of any county where the chattel is
found. It is deemed the mandate of the court.

[Code § 1694, except first sentence, without change of substance. The Board
abolishes replevy by requisition and requires a court order.]
540 Report or Joint LuqistativE CoMMITTEE

§ 1109. Affidavit to be delivered to sheriff in action to
recover a chattel. The affidavit, to be delivered to the sheriff
in an action to recover a chattel, in order to require him to replevy
it, [as prescribed in the last section,J must particularly describe
the chattel to be replevied; [Where] or if the affidavit describes
two or more chattels of the same kind, it must state the number
thereof, and where it describes a chattel in bulk, it must state the
weight, measurement or other quantity[. Where it describes two or
more chattels to be replevied,], and [it may], at the election of the
plaintiff, i¢ may state the aggregate value of all, or separately the
value of any chattel or of any class of chattels, and the aggregate
value of the remainder, if any, and must contain the following
allegations:

1. That the plaintiff is the owner of the chattel, or is entitled
to the possession thereof by virtue of a special property therein;
the facts with respect to which must be set forth.

2. That it is wrongfully detained by the defendant.

8. If the affidavit be made after the service of the summons,
that the plaintiff at the time of the commencement of the action
was the owner of the chattel, or was entitled to the possession
thereof by virtue of a special property therein, and that it was then
wrongfully detained by the defendant.

4. [8.] The alleged cause of the detention thereof, according
to the best knowledge, information and belief of the person mak-
ing the affidavit.

§. [4.] That it has not been taken by virtue of a warrant
against the plaintiff for the collection of a tax, assessment or fine
issued in pursuance of a statute of the state.or of the United
States; or, if it has been taken under color of such a warrant, either
that the taking was unlawful, by reason of defects in the process, or
other causes specified, or that the detention is unlawful by reason
of facts specified which have subsequently occurred.
~ 6. [5.J That it has not been seized by virtue of an execution or
warrant of attachment against the property of the plaintiff, or of
any person from or through whom the plaintiff has derived title to
the chattel since the seizure thereof; or, if it has been go seized,
that it was exempt from the seizure by reason of facts specified,
or that its detention is unlawful by reason of facts specified which
have subsequently occurred.

7, [[6.] Its actual value.

[Code §§ 1695, 1696 and 1697 pt. without change of substance. Omitted by
‘Board, replevy being treated as a provisional remedy.]

 
Crvin Practice Act 541

§ 1110. When defendant may require return of all or
part of chattels. Where the affidavit to be delivered by the
plaintiff in an action to recover a chattel [it] states separately
the value of one or more chattels or classes of chattels, the defend-
ant may require, as prescribed in the following provisions of this
article, the return of any or all of the chattels or classes of chattels
the value of which is thus stated, or of the portion thereof which
has been replevied. If he procures such a return, the remainder
must be delivered to the plaintiff, except as is otherwise prescribed
in this article.

[Code § 1697, pt. without change of substance.]

§ 1111. Replevy of a part of the property; effect on right
of defendant. The sheriff must replevy a smaller number
or a smaller quantity if the whole of the chattel or chattels
described in the affidavit cannot be found. In that case, if the
aggregate value only is stated in the affidavit, the value of the
entire chattel or class of chattels as so stated is to be deemed the
value of the part replevied for the purposes of the proceedings to
procure a return thereof to the defendant.

' [Code § 1698, without change. Included by Board in County Law, § 189.]

§ 1112. Plaintiff’s undertaking for replevin. The under-
taking to be delivered to the sheriff with a requisition to replevy
a chattel must be executed by at least two sureties, who must be
approved by the sheriif. It must be to the effect that the sureties
are bound in a specified sum, not less than twice the value of the
chattel, as stated in the aida, for the prosecution of the action,
for the return of the chattel to the defendant, if possession thereof
is adjudged to him, or if the action abates, or is discontinued,
before the chattel is returned to the defendant; and for the pay-
ment to the defendant of any sum which the judgment awards to
him against the plaintiff.

[Code § 1699, without change. Omitted by Board as covered by general
provisions as to provisional remedies.]

§ 1113. How chattel to be replevied. If any chattel
described in the affidavit is found in the possession of the defendant
or of his agent, the sheriff to whom an affidavit, requisition and
undertaking are delivered, as prescribed in the foregoing sections
of this article, must [forthwith] replevy it forthwith by taking it
542 Rerorr or Jornt Luqgisuative CoMMITTEE

into his possession. He [must] thereupon, without delay, must
serve on the defendant a copy of the affidavit, requisition and
undertaking, by delivering the same to him personally if he can be
found within the county ; or, if he cannot be so found, to his agent,
if any, from whose possession the chattel is taken; or, if neither
can be found within the county, by leaving the copy at the usual
place of abode of either with a person of suitable age and discre-
tion. If any chattel described in the affidavit is secured or con-
cealed in a building or inclosure, the sheriff must publicly demand
its delivery. If it is not delivered pursuant to the demand, he
must cause the building or inclosure to be broken open and must
take the chattel into his possession.

[Code §§ 1700, 1701, without change. Included by Board in County Law,
§ 189-d.]

§ 1114. Disposition by sheriff of replevied chattel. A
sheriff who has replevied a chattel must retain it in his possession,
keeping it in a secure place, until the person who is entitled to the
possession thereof is ascertained, as prescribed in this article. He
then must [then] deliver it to that person, upon request and pay-
ment of his lawful fees, and necessary expenses for taking and
keeping it, as taxed by a judge of the court, or the county judge
of the county where the chattel was replevied, upon such a notice
as the judge deems proper.

[Code § 1702, without change. Included by Board in County Law, § 189-c.]

§ 1115. Exception to plaintiff’s sureties. Within three
days after the chattel is replevied, and a copy of the affidavit,
requisition and undertaking is served, the defendant, unless he
requires a return of the chattel replevied, or of one or more of
them, where two or more chattels are replevied, may serve upon
the sheriff a notice that he excepts to the plaintifi’s sureties; other-
wise he is deemed to have waived all objections to them. Where
the defendant has not appeared, the notice must be subscribed
either by him or by his agent or attorney. The person so sub-
scribing the notice must add to his signature his office address as
prescribed by law with respect to a notice of appearance. Within
ten days after service of such a notice, the plaintiff’s attorney must
serve upon defendant’s attorney or, if the defendant has not
appeared, upon the sheriff, notice of the justification of the
sureties. If the notice of justification is served upon the sheriff,

 
Civit Practice Act 543

he must [immediately] serve it immediately upon the person
whose name is subscribed to the notice of exception, in the mode

prescribed by law for service of a paper upon an attorney in an
action.

[Code § 1703, without change. Omitted by ard as covered by general
provisions relating to provisional remedies.]

§ 1116. When defendant may reclaim chattel; proceed-
ings thereupon. The defendant, if he does not except to the
plaintifi’s sureties, as prescribed in the last section, may serve wpon
the sheriff, within the time allowed to him for such an exception,
[serve upon the sheriti,] a notice that he requires a return of the
chattel replevied. With the notice, he must deliver to the sheriff
the following papers:

1. An affidavit containing an allegation either that the defend-
ant is the owner of the chattel, or that he is lawfully entitled to the
possession thereof by virtue of a special property therein, the
tacts with respect to which must be set forth.

2. An undertaking executed by at least two sureties, to the effect
that they are bound in a specified sum, not less than twice
the value of the chattel as stated in the affidavit of the plaintiff,
for the delivery thereof to the plaintiff, if delivery thereof is
adjudged, or if the action abates in consequence of the defendant’s
death; and for the payment to him of any sum which the judg-
ment awards against the defendant.

Within three days after serving a notice requiring a return of
the chattel, as prescribed in this section, the defendant must serve
upon the plaintiff’s attorney notice of the justification of the sure
ties to the undertaking.

[Code § 1704, without change. Omitted by Board as covered by general
‘rovisions relating to provisional remedies. ]

§ 1117. Sureties; when and how to justify. The justifi-
cation of sureties, as prescribed in either of the last two sections,
inust take place either in the county where the chattel was
replevied or in the county where one of the sureties resides. The
provisions of statute or rule regulating generally the justification
of sureties in an undertaking given in an action or special pro-
ceeding [[of bail, contained in article third of title first of chapter
seventh of this act,] govern, except as otherwise expressly pre-
scribed in this article, with respect to the notice of justification of
544 Report or Jornt Leaistative CoMMITTEE

the sureties; the officer before whom they must justify; the sub-
stitution of new sureties or a new undertaking; the examination
and qualifications of the sureties; and the allowance of the under-
taking. But after the allowance, the undertaking and examination
must be delivered to the sheriff.

[Code § 1705, without change of' substance, except that the manner of
justification, etc., is required to conform to general provisions, elsewhere pre-
scribed, instead of the sureties under an order of arrest.]

§ 1118. When and to whom sheriff must deliver chat-
tel. If the defendant neither excepts to the plaintiti’s sureties,
nor requires the return of the chattel, within the time prescribed
for that purpose, or if he makes default in serving notice of the
justification of his sureties or in procuring the allowance of his
undertaking, or if the plaintiff, after the defendant has excepted to
his sureties, duly procures the allowance of his undertaking, the
sheriff [must], except where a claim is made by a person not a
party to the action [in the case specified in section seventeen hun-
dred and nine of this act], immediately must deliver the chattel
to the plaintiff. If the plaintiff, after the defendant has excepted
to his sureties, makes default in serving notice of justification
or in procuring the allowance of his undertaking, or if the
defendant, after he has required the return of the chattel, duly
procures the allowance of his undertaking, the sheriff [must]
immediately must deliver the chattel to the defendant. Where
the sheriff duly delivers a chattel to either party, as prescribed
in this [the last] section [but one], he must deliver, at the
same time, [deliver] to the adverse party, the undertaking
received by him from the party to whom the chattel is delivered,
together with the examination of the sureties, and the judge’s
allowance, if any. When the chattel is delivered by the sheriff to
either party, as prescribed in this section, the sheriff ceases to be
responsible for the sufficiency of the sureties of either party; until
then, he is responsible for the sufficiency of the sureties of the
plaintiff or of the defendant, as the case may be.

[Code §§ 1706, 1708, without change of substance. Included by Board in
County Law, § 189-b, except last sentence of § 1706, which is omitted by

reason of the Board’s plan of classing “ replevin” as u provisional remedy,
procured upon order of a court or judge.]

§ 1119. Penalty for wrong delivery by sheriff. \ sheriff
who delivers to either party, without the consent of the
Civit Pracrics Act 545

cther, a chattel replevied by him, except as prescribed in the last
section, or by virtue of an execution issued upon a judgment in
the action, forfeits to the party aggrieved two hundred and fifty
dollars, and is also liable to him for all damages which he sus-
tains thereby.

[Code § 1707, without change. Included by Board in County Law, § 180-a.]

§ 1120. Claim of title by third person; proceedings there-
upon. At any time before a chattel which has been replevied is
actually delivered to either party, if a person not a party to
the action claims as against the defendant a right to the pos-
session thereof existing at the time when it was replevied, an
afidavit may be made and delivered to the sheriff in his behalf,
stating that he makes such a claim; specifying the chattel or
chattels to which it relates, if two or more chattels have been
replevied, and the claim relates only to part of them; and setting
forth the facts upon which his right of possession depends. In
that case, the sheriff [may], in his discretion, before he delivers
the chattel to the plaintiff, may serve upon the plaintiff’s attorney
a copy of the affidavit, with a notice that he requires indemnity
against the claim. If the indemmity is not furnished within a
reasonable time after the plaintiif becomes entitled to the delivery
of the chattel, the sheriff [may], in his discretion, may deliver it
to the claimant, without incurring any Hability to the plaintiff
by reason of so doing.

[Code § 1709, without change. Omitted by Board as covered by general pro-
visions relating to provisional remedies. ]

§ 1121. Action against sheriff by third person claiming
chattel. A person not a party to the action, who has served
an affidavit as prescribed in the last section, may maintain an
action against the sheriff who has delivered the chattel to the
plaintiff, to recover his damages hy reason of the taking, deten-
tion or delivery of the chattel. But the summons in such an
action must be issued within three months after the delivery of the
chattel to the plaintiff and must be served within three months
after it is issued. An action cannot be maintained against a
sheriff by a person so entitled to make a claim except as pre
scribed in this section.

[Code § 1710, without change. Included by Board in County Law, §§ 189-f,
189-g.]

18
546. Rerorr or Joint Leeisnative CoMMITTEER

§ 1122. Indemnity to sheriff by plaintiff. The indem-
nity to be furnished to the sheriff by the plaintiff, as prescribed
in the last section but one, must consist of a written undertaking
to him, executed by at least two sureties, to the effect that they
will indemnify him against any liability for damages, costs or
expenses, to be incurred in an action brought against him by the
claimant, or a person deriving title from or through the claimant,
by reason of the taking or detention of the chattel, or its delivery
to the plaintiff, not exceeding a sum to be specified in the under-
taking, which must be at least five hundred dollars, and not less
than the actual value of the chattel claimed, and two hundred and
fifty dollars in addition thereto. Each of the sureties, besides pos-
sessing the other qualifications required by law, must be a free
holder or a householder of the sheriff’s county. The sheriff, before
' delivering the chattel, may require the persons offered as sureties
to justify in the manner and subject to the provisions of statute or
rule regulating generally the- justification of sureties in an under-
taking given in an action or special proceeding [to submit to an
examination, before the officer who takes the acknowledgment of
the undertaking, as where persons are offered to him as bail upon
an arrest]. The sureties are entitled to be substituted as defend-
ants in an action brought as prescribed in the last section as if
the chattel had been levied upon by virtue of an execution.

[Code § 1711, without change, except as to justification of sureties. Omitted
by Board as covered by general provisions relating to provisional remedies. ]

§ 1123. When agent or attorney may make affidavit for
replevin or return. The ailidavit to be delivered to the sheriff
in behalf of the plaintiff with a requisition to replevy a chattel
may be made by the plaintiff’s agent or attorney if the material
facts are within his personal knowledge; or, if the plaintiff is
not within the county where the attorney resides or has his
office or is not capable of making the affidavit. The affidavit to
be delivered to the sheriff, either in behalf of the defendant, with
a notice that he requires the return of the chattel, or in behalf of
a person not a party who makes a claim of title to the property
[as prescribed in section 1709 of this act], may be made by an
agent or attorney if the material facts are within his personal
knowledge, or if the defendant or claimant, as the case may be, is
not within the county where the property was replevied and
capable of making the affidavit. When the affidavit is made by an
attorney or agent, he must state therein what allegations, if any,
Crvit Practicr Act 547

are made upon his information and belief, and he must set forth
therein the grounds of his belief us to all matters not stated upon
his knowledge and the reason why the affidavit is not made by the
party or the claimant.

[Code § 1712, without change of substance. Omitted by Board as covered
by general provisions regulating provisional remedies.]

§ 1124. Second and subsequent replevin; proceedings
thereupon. Where the sheriff has replevied a part only of a
chattel, or of two or more chattels, described in the plaintiff's affi-
davit, and has served upon the defendant the papers required upon
such a replevin, the plaintiff [may], at any time before the service
of a copy of the defendant’s answer, or before judgment by default
for want of an appearance or pleading, may require the same or any
other sheriff or replevy any other part thereof. For that purpose,
he must deliver to the sheriff an affidavit containing the same alle-
gations, and a requisition and undertaking, with respect to the
part yet to be replevied, as if the action was brought to recover
that part only. Where a second or subsequent replevin is made
as prescribed in this section the proceedings are the same as if a
former replevin had not been made.

[Code § 1713, without change. Omitted by Board.]

§ 1125. Replevin where order of arrest has been granted.
Where an order of arrest is granted[[, as prescribed in title first
of chapter seventh of this act], the plaintiff’s right to a replevin
is subject to the following regulations:

1. If the defendant has been arrested pursuant to the order, a
subsequent replevin cannot be made of the chattel with respect to
which the order was granted.

2. If the defendant has not been arrested, a subsequent replevin
of a chattel with respect to which the order was granted super-
sedes the order.

[Code § 1714, without change of substance. Included by Board in Personal
Property Law, § 79-f.]

§ 1126. Return by sheriff. The sheriff [must], within
twenty days after he has delivered a chattel replevied by him to the
party entitled to the possession thereof or to a third person, as pre-
scribed in this article, must file with the clerk the plaintiff’s affi-
davit and the accompanying requisition, with a return, stating in
548 Report or Jom Lugisuative ComMMITTEE

what manner he has executed the latter. If he has omitted to
replevy a part of the chattel, or of two or more chattels, described
in the affidavit, the return must state the cause of the omission.

[Code § 1715, without change. Included by board in County Law, § 189-a.]

§ 1127. Failure of sheriff to make return. Jf the sheriff
Tails to comply with the last section, either party may require him
so to do within ten days after service of a notice to that effect, or
to show cause at a term of the court designated in the notice why
he should not be punished for a contempt of the court. The notice
may be served at any time before final judgment, except that it
cannot be served on the part of the defendant before answer. An
omission to comply with such a notice is punishable as a contempt
of the court.

[Code § 1716, without change. Included by Board in County Law, § 189-a.]

§ 1128. Replevin papers to be made part of judgment-
roll. The plaintiff’s affidavit, with the accompanying requisition,
and the return of the sheriff, must be made a part of the
judgment-roll in [the] an action to recover a chattel[; and a
copy of each of them must be furnished to the court, or the referee,
upon the trial of an issue of fact, with a copy of the summons and
of the pleadings].

[Code § 1717, first clause, without change of substance. Included by Board
in Rule 319.

§ 1129. Action to recover a chattel not affected by failure
to replevy. The plaintiff may proceed in the action and recover
therein the chattel or its value although he has not required the
sheriff to replevy it or the sheritf has not been able to replevy it.

[Code § 1718, without change. Included by Board in Personal Property Law,
§ 79-g.]

§ 1130. When and how piaintiff may abandon his claim as to
part. Where part only of two or more distinct chattels specitied
in the complaint has been replevied, the plaintiff’s attorney
[may], with or before the notice of trial, may serve upon
the defendant’s attorney a notice that he abandons so much of his
claim as relates to those which have not been replevied; and
thenceforth the proceedings are the same as if the action had been
brought to recover only the chattels which have been replevied.
Civit Practice Act 549

‘LA copy of the notice must be furnished to the court, or to the
referee, upon the trial of an issue of fact, with a copy of the sum-
mons and of the pleadings. J}

[Code § 1719, first sentence, without change. Second sentence omitted as
unnecessary.]

§ 1131. Damages for injury or depreciation of chattel.
Where the plaintiff recovers a chattel which was injured, or other-
wise depreciated in value, while it was in the possession or under
the control of the defendant, under such circumstances that the
plaintiff might recover damages for the injury or depreciation in
an action brought against the defendant therefor, he may recover
the same damages in an action brought as prescribed in this article.
{In that case, he must set forth the facts in his complaint, and
demand judgment for damages accordingly. J

[Code § 1722, without change, except to omit last sentence as unnecessary.
Included by Board in Personal Property Law, § 79-k.]

§ 1132. Defendant may demand judgment for return.
Where a chattel has been replevied and delivered to the plaintiff,
or to a person not a party to the action, as prescribed in the fore-
going sections of this article, the defendant’s attorney [may],
within the time allowed to him for the service of a notice of trial,
may serve upon the plaintiff’s attorney a notice that the defend-
ant demands judgment for the return of the chattel or for its
value, either with or without damages for the detention thereof.
[Upon the trial, a copy of such a notice must be furnished to the
court or referee, with a copy of the summons and of the pleadings. }

[Code § 1725, except last sentence, which is omitted as unnecessary.]

§ 1133. Verdict, report or decision in action to recover a
chattel; what to state. The verdict, report or decision must
fix the damages, if any, of the prevailing party. Where it
awards to the plaintiff a chattel which has not been replevied, or
where it awards to the prevailing party a chattel which has been
replevied and afterwards delivered by the sheriff to the unsuc-
cessful party or to a person not a party, it must also, except in
a case specified in the next section, fix the value of the chattel at
the time of the trial.

[Code § 1726, without change. Omitted by Board.]
550 Reporr or Joint Leqistative CoMMITTEE

§ 1134. Substitute in certain cases for finding as to value
in action to recover a chattel. A verdict, report or decision in
favor of the defendant shall not fix the value of the chattel in
either of the following cases:

1. Where the plaintiff is the general owner of the chattel, but
it was rightfully distrained doing damage, and its value is greater
than the damages sustained by the defendant, by the injury for
which it was distrained; in which case, those damages must be
fixed.

2. Where the plaintiff is the general owner of the chattel but
the defendant had a special property therein and the value of the
chattel is greater than the value of the special property, or the
sum charged upon the chattel by reason thereof; in which case, the
value of the special property or the sum so charged must be fixed.

In either of the cases specified in this section, the verdict, report
or decision must set forth the reason why the value of the chattel

is not fixed.
[Code § 1727, without change. Omitted by Board.]

§ 1135. Verdict, report or decision for part of several
chattels; judgment thereupon. Where the action is brought to
recover two or more chattels, the verdict, report or decision may
award to one party one or more distinct chattels which can be
identified and set apart from the others, and the residue to the
other party[[; and, if necessary, the complaint must be amended
so as to conform thereto]. The final judgment rendered there
upon must award to each party the same relief with respect to
the finding in his favor as if senarate judgments were rendered;
except that, where each party is entitled to an absolute award of a
sum of money against the other, the smaller sum must be deducted
from the greater and the balance only must be awarded.

[Code § 1728, without change of substance, except the omission of the

bracketed clause, as unnecessary in view of general provisions as to amend-
ment of pleadings. ]

§ 1136. Damages; how ascertained on default. Where the
plaintiff is entitled to judgment by default for want of an
appearance or pleading, the court to which he applies for judg-
ment may ascertain and determine the damages to which he is
entitled, and the value of the chattel, if necessary; or may direct
a reference, or a writ of inquiry, for that purpose.

[Code § 1729, without change. The section is omitted by Board.]
Crvit Practice Act 551

§ 1137. Final judgment. Final judgment for the plaintiff
must award to him possession of the chattel recovered by him
with his damages, if any. Ifa chattel recovered was not replevied,
cr if, after it was replevied, it was delivered to the defendant, or
to a person not a party, as prescribed in this article, the final judg-
ment must also award to the plaintiff the sum fixed as the value
thereof, to be paid by the defendant if possession thereof is not
delivered to the plaintiff. If the defendant has demanded judg-
ment for the return of a chattel which was replevied and after-
wards delivered to the plaintiff, or to a person not a party, as pre-
scribed in this article, final judgment in his favor therefor must
award to him possession thereof with his damages, if any; and it
must also award to him the sum fixed as the value thereof, to be
paid by the plaintiff if possession is not delivered to the defend-
ant. But if the case is one of those specified in section [1727]
eleven hundred and thirty-four of this act, final judgment in favor
of the defendant must award to him the sum fixed as therein
specified, and if it is not collected, the delivery of the chattel:
or, if the chattel has not been replevied, or has been returned to
him after replevin, that he is entitled to possession thereof until
the sum so awarded is collected or otherwise paid.

[Code § 1730, except last sentence, which is included in next section.]

§ 1138. Lien of judgment in action to recover a ‘chattel.
The judgment in an action to recover a chattel may be docketed,
and the docket thereof creates a lien, as if it was a judgment for
the full amount of the money, including costs, which it awards,
either absolutely or conditionally.

[Code § 1730, last senicnce, without change. Included by Board in Lien Law,
§ 191.]

§ 1139. Execution; contents thereof. An execution for the
delivery of the possession of a chattel, and to satisfy, out of the
property of the judgment debter, a sum of money contingently
uwarded against him, must contain, in addition to the other mat-
ters prescribed by law, the following directions:

1. Where the judgment is rendered in favor of the defendant,
in a case specified in section eleven handred and thirty-four
[1727] of this act, the execution must require the sheriff to
deliver possession of the chattel to the defendant, unless the plain-
tiff before the delivery pays to him the sum of money awarded to
552 Report or Joint LeqistativE CoMMITTEE

‘the defendant with interest and the sheriff’s fees; and, in case
the chattel cannot be found within his county, then to satisfy that
sum out of the property of the plaintiff.

2. In any other case, where the judgment awards a sum of
money, if possession of the chattel is not delivered to the pre-
vailing party, the execution must require the sheriff, if the chattel
cannot be found within his county, to satisfy the sum so awarded.
with interest and his fees, out of the property of the party against
whom the judgment is rendered.

A direction to satisfy a sum of money out of property, as pre-
scribed in this section, must be in the form required by law for a
like direction, where an execution against property is issued upon
a judgment for a sum of money.

{Code § 1731, without change. Omitted by Board as covered by general
provisions.]

§ 1140. Sheriff’s power to take chattel under execution.
For the purpose of taking possession of a chattel by virtue of such
an execution, the powers of the sheriff are the same as where he
is required to replevy a chattel.

[Code § 1732, without change. Included by Board in County Law, § 190-f.]

§ 1141. Action on undertaking maintainable only after
return of execution. A plaintiff who has recovered a final judg-
ment cannot maintain an action against the sureties in an
undertaking given in behalf of the defendant to procure a
return of the chattel, or against the bail of a defendant who has
been arrested, until after the return, wholly or partly unsatisfied
or unexecuted, of an execution in his favor for the delivery of the
possession of the chattel, or to satisfy a sum of money out of the
property of the defendant, or for both purposes, as the case
requires. A defendant who has recovered a final judgment can-
not maintain an action against the sureties in the plaintiff’s under-
taking given to procure a replevin until after a like return of a
similar execution against the plaintiff.

[Code § 1733, without change. Included by Board in Personal Property
Law, § 79-b.]

§ 1142. Sheriff’s return as evidence in action on undertaking.
In'such an action against the sureties, the sheriff’s return to the
execution is presumptive evidence of a failure to deliver or to
Civit Practice Act 553

return a chattel, or to pay a sum of money, according to the terms
of the undertaking.

[Code § 1734, without change. Included by Board in Evidence Law, § 109.]

§ 1143. Defense in action on undertaking. It is not a de
fence to such an action that the chattel was injured or destroyed
after it was replevied, unless the injury or destruction was effected
by the act or with the consent of the plaintiff in the action, or
occurred after the chattel was taken by virtue of the execution.

[Code § 1735, without change. Included by Board in Personal Property
Law, § 79-j.]

§ 1144. Abatement and revival of action. In an action
to recover a chattel, the cause of action survives or con-
tinues, nothwithstanding the death of either party, in favor
of or against his executor or administrator. Where the court
makes an order directing the abatement of [such] an action
to recover a chattel, [as prescribed in section 761 of this act,]
an action may be maintained upon an undertaking given for the
purpose of procuring a delivery or return of a chattel as if final
judgment awarding to the adverse party possession thereof had
been rendered in the first action and an execution thereupon had
been returned unexecuted and unsatisfied; except that damages
cannot be recovered therein for a wrongful taking, withholding or
detention. An action to recover the chattel cannot be maintained
after an action has been commenced upon an undertaking, as pre-
scribed in this section.

[Code § 1736, pt., without change of substance. Included by Board in Per-
sonal Property Law, §§ 79-c, 79-h.]

ARTICLE 68
ACTION TO ANNUL A MARRIAGE

Section 1145. Grounds for action to annul.
1146. Who may maintain action; right as affected by
cohabitation.
1147. Action to annul marriage when former husband or
wife was living.
1148. Legitimacy and custody of children of marriage
annulled on ground of former marriage in force.
554 Report or Joint LeaisuativE CoMMITTEE

Section 1149. Action to annul marriage where party was an idiot.
1150. Action to annul marriage where party was a lunatic.
1151. Action to annul marriage by next friend of idiot or
lunatic.

1152. Legitimacy of children of marriage annulled for
idiocy, lunacy or want of consent.

1153. Action to annul marriage on the ground of force,
duress or fraud.

1154. Custody of children of marriage annulled for force,
duress or fraud.

1155. Action to annul a marriage on the ground of
physical incapacity.

1156. Jury trial in action to annul marriage.

1157. Proof required for judgment by default in action
to annul a marriage.

1158. Motion to vacate order allowing next friend to
maintain action.

1159. Dismissal of complaint in action by next friend to
annul a marriage.

1160. Judgment annulling a marriage; how far con-
clusive.

[Section 1742 authorizing action by a woman, married under 16, is obsolete,
and has been repealed without re-enactment. It was proposed for re-enactment
by the Board as Domestic Relations Law, § 64. The amendment of the Domes-
tic Relations Law, § 7, increasing the age of legal consent to 18 years for
both men and women superseded the section. Conti v. Conti, 82 App. Div.
335; Wander v. Wander, 111 App. Div. 189; Kruger v. Kruger, 137 App.
Div. 289. The age of legal consent is not affected by § 15 of the Domestio
Relations Law, which provides that a clerk shall not issue a marriage license
where the man is under 21 or the woman under 18, unless the consent of the
parents or guardian of such minor is obtained. Kruger v. Kruger, 137 App.
Div, 289; section 15 pertains solely to the administration of the office of the
clerk, Greenberg v. Greenberg, 97 Misc. 183.

‘The right to annul a marriage contracted before a party has attained the
age of legal consent is absolute, even though contracted with the consent of
parents. Conti v. Conti, 82 App. Div. 335; Wander v. Wander, 111 App.
Div. 189, and notwithstanding cohabitation for any period prior to attaining
the age of legal consent. Dickinson v. Dickinson, 96 App. Div. 639; Wander
vy. Wander, supra. In the Dickinson case the parties cohabited after the com-
plaint was prepared, but before attaining the age of 18 years.

Prior to the amendment of §§ 1743 and 1744 by L. 1916, ch. 605, a marriage
could not be annulled at the suit of a party who had cohabited with the other
party after attaining the age of legal consent, which in the case of both the
man and woman is 18 years. This was clear under the last sentence of § 1744,
Crvit Practicn Act 555

which then read as follows: “But a marriage shall not be annulled at the
suit of a party who was of the age of legal consent when it was contracted or
where it appears that the parties, for any time after they attained that age,
freely cohabited as husband and wife.” So also it was provided by the General
Rules of Practice 73. But the act of 1916, amended § 1743, in the first place
by providing, ‘‘ that « marriage might be annulled on the ground that one or
both of the parties had not attained the age of legal consent or the age under
which the consent of parents or guardians was required by the laws of the
state where the marriage was contracted.” This was intended to substitute
as the age of legal consent in a state which did not prescribe such an age,
the age at which the consent of parents or guardians was required. Green-
berg v. Greenberg, 97 Misc. 153. The amendment was not intended to have
any application to a marriage contracted in this state. A difficulty of con-
struction has arisen, however, in reference to the last sentence of § 1744, which
was substituted for the former language quoted above. It provides as follows:
“But a marriage shall not be annulled at the suit of a party who was of
the age under which the consent of parents or guardians was required by the
laws of the state where the marriage was contracted when it was contracted,
or where it appears that the parties, for any time after they attained that
age, freely cohabited as husband and wife.” As to the wife “that” age is
18 years, and no change appears to have been effected; but as to the hus-
band “that” age is 21, and the apparent effect is to permit the husband to
cohabit with the wife until he is 21 years of age, without being barred from
the right of maintaining his action for annulment, although if the wife
cohabits after attaining 18 years she is absolutely barred. The Committee
understands that several judges sitting at special term have so construed the
section. No such effect was intended by the act of 1916, and the Committee
has amended §§ 1743 and 1744 to express what it believes to have been the
intent of the act of 1916. :

The Code does not prescribe the period within which an action must be
commenced to annul a marriage for w cause described in subd. 1 of § 1743,
as is done by § 1752 in reference to an action to annul on the ground of
physical incapacity. In Macri v. Macri, 177 App. Div. 292, it was held that
a girl married under the age of 15, whose cohabitation with her husband
ended before reaching the age of 18 years, is entitled to an annulment of the
marriage and this right is not barred by her laches of over five years, where
it appears that she was an ignorant girl and had been told that after five
years she would have a right to divorce without court proceedings. Query: is
“laches” the only limitation? The court said in the above case: “ Her
waiting from 1910 to 1915 before bringing this suit calls for some explanation.
But as was said in Bishop, § 413 of the English act, ‘ Delay, standing quite
alone, nothing combining with it and nothing of fact being inferred from it,
is not a bar to a divorce suit.’ ” Section 388 of the Code, prescribing a limita-
tion of 10 years where not otherwise prescribed, has been applied to an action
for separation. Sturm v. Sturm, 80 Misc. 277. It has been held, however,
that § 388 does not apply to a marriage absolutely void by reason of the
former husband or wife being alive and not divorced from defendant at the
time of marriage with the plaintiff. Chittenden v. Chittenden, 68 Mise. 172.
The Committee has not prescribed a limitation under subd. 1 of § 1743.]
556 Repvorr or Joint Luoistative CoMMITTEE

§ 1145. Grounds for action to annul. An action may
[also] be maintained to procure a judgment declaring a mar-
riage contract heretofore or hereafter entered into void and
annulling the marriage, for either of the following causes existing
at the time of the marriage:

1. That one or both of the parties had not attained the age of
legal consent [or the age under which the consent of parents or
guardians was required by the laws of the state where the mar-
riage was contracted]. If, by the laws of the state or country im
which the marriage was contracted such age is not prescribed, the
age of legal consent within the meaning of this and the next sec-
tion shall be the age under which the consent of parents or
guardians, to the marriage, is required by the laws of such state or
country. .

[2. That the marriage between the parties was void.]

2 [3]. That one of the parties was an idiot or a lunatic.

3 [4]. That the consent of one of the parties was obtained by
force, duress or fraud.

4 [5]. That one of the parties was physically incapable of
entering into the marriage state. But an action can be main-
tained under this subdivision only where the incapacity continues
and is incurable.

5 [6]. That the parties to such marriage are within the
degrees of consanguinity mentioned and set forth in section five
of the domestic relations law. .

6 [2]. That the marriage between the parties was void or
voidable for any other reason.

[Code § 1743, amended as indicated. Included by Board in Domestic Rela-
tions Law, § 64-a. Subd. 2, amended by L. 1918, ch. 311, extending its scope
to any void marriage, formerly applied only where “former husband or wife
of one of the parties was living, and the marriage with the former husband or
wife was then in.force.” This subd. has been made subd. 6 and broadened to
include a marriage voidable for any other reason.]

§ 1146. Who may maintain action; right as affected
by cohabitation. An action to annul a marriage, heretofore or
hereafter contracted, on the ground that one or both of the parties
had not attained the age of legal consent, [[or the age under which
the consent of parents or guardians was required by the laws of
the state where the marriage was contracted, may be maintained
by the infant, or by either parent of the infant, or by the guardian
of the infant’s person; or the court may allow the action to be
Cirvin Practice Act 557

maintained by any person as the next friend of the infant. Buta
marriage shall not be annulled at the suit of a party who was of
the age [under which the consent of parents or guardians was
required by the laws of the state where the marriage was con-
tracted] of legal consent when it was contracted, or by a party
who [where it appears that the parties] for any time after [they]
he or she attained that age freely cohabited with the other party
as husband or [and] wife.

[Code § 1744, amended as indicated. Included by Board in Domestic Rela-
tions Law, § 64-b.]

§ 1147. Action to annul marriage when former husband
or wife was living. An action to annul a marriage upon the
ground that the former husband or wife of one of the parties
was living, the former marriage being in force, may be maintained
by either of the parties during the life-time of the other, or by the
former husband or wife.

[Code § 1745, first sentence, without change. Included by Board in Domestic
Relations Law, § 64-c.]

§ 1148. Legitimacy and custody of children of miar-
riage annulled on ground of former marriage in force. Where
it appears and the judgment determines in an action to annul a
marriage on the ground that the former husband or wife was
living, the former marriage being in force, that the subsequent
marriage was contracted by at least one of the parties thereto in
good faith, and with the full belief that the former husband
or wife was dead or that the former marriage had been
annulled or dissolved, or without any knowledge, on the
part of the innocent party, of such former marriage, the issue
of the subsequent marriage, born or begotten before the
final judgment, are deemed for all purposes the legitimate children
cf the parent who at the time of the marriage was competent to
contract, and are entitled to succeed as such, in the same manner
as other legitimate children, to the real and personal estate of said
parent; and the issue so entitled must he specified in the judgment,
and the innocent party must be awarded their custody, and he or
she is entitled to appoint a guardian of their persons by will.

This section shall be construed to extend to all cases where the
judgment or decree of nullity of such subsequent marriage is
558 Rerorr or Joryt Leaistative CoMMITTEE

rendered after ‘the passage of this act whether such subsequent
marriage was contracted before or after the passage hereof.

[Code § 1745, all except first sentence. Included by Board in Domestic
Relations Law, § 65.]

§ 1149. Action jto annul marriage where party was an
idiot. .An action to annul a marriage on the ground that one
of the parties thereto was an idiot may be maintained at any
time during the life-time of either party by any relative of the
idiot, who has an interest to avoid the marriage.

{Code § 1746, without change. Included by Board in Domestic Relations
Law, § 64-d.]

§ 1150. Action to annul marriage where party was a
lunatic. An action to annul a marriage on the ground that one
of the parties thereto was a lunatic may be maintained at any
time during the continuance of the lunacy, or, after the death of
the lunatic in that condition, and during the life of the other party
‘to the marriage, by any relative of the lunatic who has an interest
to avoid the marriage. Such an action may also be maintained by
the lunatic at any time after restoration to a sound mind; but in
that case, the marriage should not be annulled if it appears that
the parties freely cohabited as husband and wife after the lunatic
was restored to a sound mind.

[Code § 1747, without change. Included by Board in Domestic Relations
Law, § 64-e.]

§ 1151. Action to annul marriage by next friend of idiot
or lunatic. Where no relative of the idiot or lunatic brings
an action to annul the marriage, [as prescribed in either of the
last two sections, ] the court may allow an action for that purpose
to be maintained at any time during the life-time of both the
parties to the marriage, by any person as the next friend of the
idiot or lunatic. But this section does not apply where the
marriage might have been annulled at the suit of the lunatic,
as prescribed in the last section.

[Code § 1748, without change. Included by Board in Domestic Relations
Law, § 64-f.]

§ 1152. Legitimacy of children of marriage annulled for
idiocy, lunacy or want of consent. A child of a marriage
Crvit Practicn Act 559

which is annulled on the ground of the idiocy or lunacy of one of
its parents is deemed for all purposes the legitimate child of the
parent who is of sound mind. A child of a marriage which is
annulled on the ground that one or both of the parties had not
attained the age of legal consent is deemed for all purposes the
legitimate child of both parents.

[Code § 1749, without change. Included by Board in Domestic Relations
Law, §§ 65-a, 65-b.]

§ 1153. Action to annul marriage on the ground of force,
duress or fraud. An action to annul a marriage on the ground
that the consent of one of the parties thereto was obtained by
force, duress or fraud may be maintained at any time by the
party whose consent was so obtained. Such an action may also be
maintained during the life-time of the other party by the parent
or the guardian of the person of the party whose consent was so
obtained, or by any relative of that party who has an interest to
avoid the marriage. But a marriage shall not be annulled on the
ground of force or duress if it appears that, at any time before
the commencement of the action, the parties thereto voluntarily
cohabited as husband and wife; or on the ground of fraud, if it
appears that, at any time before the commencement thereof, the
parties voluntarily cohabited as husband and wife, with a full
knowledge of the facts constituting the fraud.

[Code § 1750, without change. Included by Board in Domestic Relations
Law, § 64-g.] 5

§ 1154. Custody of children of marriage annulled for
force, duress or fraud. The court [must], upon the application
of the plaintiff, must award the custody of the children of a mar-
riage which is annulled on the ground of force, duress or fraud, to
the innocent parent, unless it appears that the latter is unfit for
any reason to have the custody of one or more of the children, in
which case the court must give such directions relating thereto as
the interests of the child or children require. The judgment may
make provision for the education and maintenance of the children
out of the property of the guilty parent.

[Code § 1751, without change. Included by Board in Domestic Relations
Law, § 64-j.]

§ 1155. Action to annul a marriage on the ground of physi-
cal incapacity. An action to annul a marriage on the ground
560 Report or Jomvr Leeistative CoMMITTEE

that one of the parties was physically incapable of entering
into the marriage state may be maintained by the injured party
against the party whose incapacity is alleged; or such an action
may be maintained by the party who was incapable against the
other party, provided the incapable party was unaware of the
incapacity at the time of marriage, or if aware of such incapacity,
did not know it was incurable. Such an action must be com-
menced before five years have expired since the marriage.

[Code § 1752, without change. Included by Board in Domestic Relations
Law, §§ 64-h, 64-i.]

§ 1156. Jury trial in action to annul marriage. In
[such] an action to annul a marriage, except where it is founded
upon an allegation of the physical incapacity of one of the parties
thereto, the court [must], upon the application of either of the
parties, must make «n order directing the trial, by a jury of all the
issues of fact; or [it may], of its own motion, it may make an
order directing the trial by a jury of one or more issues of fact;
for which purpose, the questions to be tried must be prepared and
settled [as prescribed in section 970 of this act].

[Code § 1753, last sentence, without change of substance. Included by

Board in Civil Rights Law, § 193. First two sentences included in § 1638,
post.)

§ 1157. Proof required for judgment by default in action
to annul a marriage. In an action brought to annul a marriage
[as prescribed in this article], a final judgment annulling the
marriage shall not be rendered by default for want of an appear-
ance or pleading, or upon the trial of an issue, without proof of
the facts upon which the allegation of nullity is founded. [And]
The declaration or confession of either party to the marriage is not
alone sufficient as proof, but other satisfactory evidence of the
facts must be produced.

[Code § 1753, first two sentences without change of substance. Included by
Board in Rule 302, subd. 2, and Evidence Law, § 70.]

§ 1158. Motion to vacate order allowing next friend
to maintain action. A motion to vacate [such] an order allowing
a person to maintain an action to annul a marriage as next friend
of an infant, rdiot or lunatic must be made at a term held by the
judge who granted it, unless he is dead, out of office or unable to
Civin Practice Act 561

hear it by reason of sickness or otherwise; or unless he expressly
directs it to be heard at a term held by another judge.

[Code § 1755, second sentence, without change of substance.]

§ 1159. Dismissal of complaint in action by next friend to
annul a marriage. [But] Where [such] an order has been
granted allowing the neat friend of an infant, idiot or luna-
tic to maintain an action annulling a marriage, the court to
which application for final judgment is made nevertheless may
dismiss the complaint if justice so requires, although, in a like
case, the party to the marriage, if plaintiff, would be entitled to
judgment.

[Code § 1755, last sentence, without change of substance. Cmitted by Board
in view of the change in practice. See note 377.]

-» § 1160. Judgment annulling a marriage; how far con-
clusive. A final judgment, annulling a marriage rendered dur-
ing the life-time of both the parties is conclusive evidence of the
invalidity of the marriage in every court of record or not of record,
in any action or special proceeding, civil or criminal. Such a
judgment rendered after the death of either party to the marriage
is conclusive only as against the parties to the action and those
claiming under them.

[Code § 1754, without change. Included by Board in Evidence Law, § 65.]

ARTICLE 69
ACTION FOR A DIVORCE

Section 1161. Action for absolute divorce.

1162. When answer must be verified in action for divorce.

1163. Jury trial in action for divorce.

1164. Proof in action for divorce.

1165. Co-respondent as party in action for divorce.

1166. Costs in favor of co-respondent in action for di-
vorce.

1167. When divorcee denied, although adultery proved.

1168. Legitimacy of children in action for divorce by
wife.
562 Rerorr or Jornt Leaistative ComMItTTEE

Section 1169. Maintenance and support of wife and children in

action for divorce by wife.

1170. Property rights in action for divorce by wife.

1171. Legitimacy of children in action for divorce by
husband.

1172. Property rights in action for divorce by husband.

1173. Modification of judgment order in action for di-
vorce brought by wife.

1174. Information as to details of divorce action.

1175. Insurance upon dissolution of marriage.

§ 1161. Action for absolute divorce. In either of the fol-
lowing cases, a husband or a wife may maintain an action against
the other party to the marriage to procure a judgment divorcing
the parties and dissolving the marriage by reason of the defend-
ant’s adultery: :

1. Where both parties were residents of the state when th
offence was committed.

2. Where the parties were married within this state.

3. Where the plaintiff was a resident of the state when the
offence was committed and is a resident thereof when the action
is commenced.

4. Where the offence was committed within the state and the
injured party when the action is commenced is a resident of the
state.

[Code § 1756, without change. Included by Board in Domestic Relations
Law, § 62.]

§ 1162. When answer must be verified in action for
divorce. [1.] The answer of the defendant im an action for
divorce may be made without verifying it, notwithstanding the
verification of the complaint, except that an answer containing a
counterclaim which charges adultery must be verified in respect
of such counterclaim where the complaint is verified.

[Code § 1757, first sentence, without change of substance. Board rule 172.]

§ 1163. Jury trial in action for divorce. If the answer
in an action, for divorce puts in issue the allegation of adultery,
the court must upon the application of either party, or it may of
its own motion, make an order directing the trial by a jury of
Civit Practicr Act 563

that issue; for which purpose the questions to be tried must be pre-
pared and settled[[, as prescribed in section nine hundred and
seventy of this act].

[Code § 1757, second sentence, without change of substance. Included by
Board in Civil Rights Law, § 193, subd. 1.]

§ 1164. Proof in action for divorce. If the answer an
an action for divorce does not put in issue the allegation of adul-
tery, or if the defendant makes default in appearing or pleading,
the plaintiff before he is entitled to judgment must nevertheless
satisfactorily prove the material allegations of his complaint and
also, by his own testimony or otherwise, that there is no judgment
or decree in any court of the state of competent jurisdiction
against him in favor of the defendant for a divorce on the ground
of adultery.

[Code § 1757, third sentence, without change of substance. Included by
Board in Evidence Law, § 44.]

§ 1165. Co-respondent as party in action for divorce.
[2.] In an action brought to obtain a divorce on the ground of
adultery, the plaintiff or defendant may serve a copy of his plead-
ing on the co-respondent named therein. At any time within
twenty days after such service on said co-respondent, he may
appear to defend such action so far as the issues affect such
co-respondent. If no such service be made, then at any time before
the entry of judgment any co-respondent named in any of the
pleadings shall have the right[[, at any time before the entry of
judgment, ] to appear either in person or by attorney in said action
and demand of plaintiff’s attorney a copy of the summons and
complaint, which must be served within ten days thereafter, and
he may appear to defend such action so far as the issues affect
such co-respondent.

[Code § 1757, subd. 2, except last sentence, without change. Included by
Board in Rule 136.]

§ 1166. Costs in favor of co-respondent in action for
divorce. [In] In an action for divorce where a co-respondent
has appeared and defended, in case no one of the allegations of
adultery controverted by such co-respondent shall be proved, such
co-respondent shall be entitled to a bill of costs against the person
564 Reporr or Joint LeaistativE CoMMITTEE

naming him as such co-respondent, which bill of costs shall con-
sist only of the sum now allowed by law as a trial fee, and dis-
bursements, and such co-respondent shall be entitled to have an
execution issue for the collection of the same.

[Code § 1757, last sentence, without change of substance. Included by
Board in Costs Law, § 56, Rule 378. The last clause may be omitted.]

§ 1167. When divorce denied, although adultery proved.
In either of the following cases, the plaintiff is not entitled to
a divorce, although the adultery is established:

1. Where the offence was committed by the procurement or with
the connivance of the plaintiff.

2. Where the offence charged has been forgiven by the plaintiff.
The forgiveness may be proved, either affirmatively, or by the
voluntary cohabitation of the parties with the knowledge of the
fact.

3. Where there has been no express forgiveness, and no volun-
tary cohabitation of the parties, but the action was not com-
menced within five years after the discovery by the plaintiff of
the-offence charged.

4. Where the plaintiff has also been guilty of adultery under
such circumstances that the defendant would have been entitled,
if innocent, to a divorce.

[Code § 1758, without change. Included by Board in Domestic Relations
Law, § 62-a.]

§ 1168. Legitimacy of children in action for divorce by
wife. Where the action for divorce is brought by the wife,[
the following regulations apply to the proceedings:

1. The] the legitimacy of any child of the marriage, born or
begotten before the commencement of the action, is not affected by
the judgment dissolving the marriage.

[Code § 1759, subd. 1, without change of substance.]

§ 1169. Maintenance and support of wife and children in
action for divorce by wife. [2.] The court [may], in the
final judgement dissolving the marriage in an action for divorce
brought by the wife, may vequire the defendant to provide suitably
for the education and maintenance of the children of the marriage,
and for the support of plaintiff, as justice requires, having regard
to the circumstances of the respective parties; and [may], by
Civin Practice Act 565

order, upon the application of either party to the action, and after
due notice to the other, to be given in such manner as the court
shall prescribe, at any time after final judgment whether heretofore
or hereafter rendered, may annul, vary or modify such a direction.
But no such application shall be made by a defendant unless leave
to make the same shall have been previously granted by the court
by order made upon or without notice as the court in its discretion
may deem proper after presentation to the court of satisfactory
proof that justice requires that such an application should be
entertained.

[Code § 1757, subd. 2, without change of substance. Included by Board in
Domestic Relations Law, § 62-d.]

§ 1170. Property rights in action for divorce by wife.
[3.] If, in an action for divorce brought by the wife, when final
judgment is rendered dissolving the marriage, the plaintiff is the
owner of any real property, or has in her possession or under her
control any personal property or thing in action which was left
with her by the defendant or acquired by her own industry or
given to her by bequest or otherwise, or if she is or [may] there-
after may become entitled to any property by the decease of a rela-
tive intestate, the defendant shall not have any interest therein,
absolute or contingent, before or after her death. [4.]] Where final
judgment in Sigh. an action is rendered dissolving the marriage,
the plaintifi’s inchoate right of dower in any real property of which
the defendant then is or was theretofore seized is not affected by
the judgment.

{Code § 1759, subds. 3 and 4, without change of substance. Included by
Board in Domestic Relations Law, §§ 62-e, 62-g.]

§ 1171. Legitimacy of children in action for divorce
by husband. Where the action for divorce is brought by the
husband, the [following regulations apply to the’ proceedings:

1. The] legitimacy of a child born or begotten before the com-
mission of the offence charged is not affected by a judgment
dissolving the marriage; but the legitimacy of any other child of
the wife may be determined as one of the issues in the action.
In the absence of proof to the contrary, the legitimacy of all the
children begotten before the commencement of the action must
be presumed.

[Code § 1760, subd. 1 without change of substance. Included by Board in
Domestic Relations Law, § 65-c and Evidence Law, § 18.]
566 Report or Joint Leqgistative CoMMITTEE

§ 1172: Property rights in action for divorce by hus-
band. [2.] A judgment dissolving the marriage, in an action for
divorce brought by the husband, does not impair or otherwise
affect the plaintiff’s rights and interests in and to any real or
personal property which the defendant owns or possesses when
the judgment is rendered. [3.] Where judgment is rendered
dissolving the marriage, the defendant is not entitled to dower in
any of the plaintiff’s real property or to a distributive share in his
personal property.

[Code § 1760, subd. 2, 3, without change of substance. Included by Board
in Domestic Relations Law, §§ 62-f, 62-h.]

§ 1173. Modification of judgment or order in action
for divorce brought by wife. Where an action for divorce is
brought by a wife, [as prescribed in article second of this chap-
ter,J and a final judgment of divorce has been rendered in her
favor, the court, by order upon the application of the defendant on
notice, and on proof of the marriage of the plaintiff after such final
judgment, must [by order] modify such final judgment and any
orders made with respect thereto by annulling the provisions of
such final judgment or orders, or of both, directing payments of
money for the support of the plaintiff.

[Code § 1771, last sentence, without change of substance. Included by
Board in Domestic Relations Law, § 61-c.]

§ 1174. Information as to details of divorce action. [No]
An officer of [any] @ court with whom the proceedings in an
action for divorce [an adultery cause] are filed, [on] or before
whom the testimony is taken, [nor any] or his clerk [of such offi-
cer], either before or after the termination of this suit, shall not
permit a copy of any of the pleadings or testimony or of the sub-
stance of the details thereof to be taken by any other person than
a party or the attorney or counsel of a party who has appeared in
the cause, without a special order of the court.

[General Rule of Practice 76, pt., without change of substance. Included
by Board in Domestic Relations Law, § 62-j.]

§ 1175. Insurance upon dissolution of marriage. When-
ever the relation of husband and wife ceases by the entry
of a judgment dissolving the marriage, the defendant guilty
Civin Practics Act 567

of adultery is not entitled to any interest in any policy of insur-
ance on the life of the plaintiff wherein such defendant is named
as a beneficiary, and the plaintiff may apply to the court granting
the final decree or to a special term of the supreme court on notice
to the defendant or the attorney who appeared for defendant in
the action for divorce, and to the insurance company issuing the
policy or policies, for an order directing the insurance company
issuing the policy or policies to substitute therein such beneficiary
as the plaintiff may nominate. In case where it is shown that the
defendant has contributed from his or her separate estate toward
the payment of the premiums on such policy, the court shall grant
such order on such terms as in the discretion of the court shall be
equitable. This section shall also apply in like manner when the
defendant obtains a decree against the plaintiff on a counterclaim.

[Code § 1761, without change. Included by Board in Domestic Relations
Law, § 62-i.]

ARTICLE 70
ACTION FOR A SEPARATION

Section 1176. Action for separation; when maintainable.
1177. Action for separation; conditions attached to
maintenance.
1178. Defense in action for separation.
1179. Maintenance of wife and children in action for
separation.
1180. Judgment for separation may be revoked.

§ 1176. Action for separation; when maintainable. In
either of the cases specified in the next section, an action may
be maintained by a husband or wife against the other party to
the marriage to procure a judgment separating the parties from
bed and board, forever, or for a limited time, for either of the fol-
lowing causes:

1. The cruel and inhuman treatment of the plaintiff by the
defendant.

2. Such conduct on the part of the defendant towards the plain-
tiff as may render it unsafe and improper for the former to cohabit
with the latter.

3. The abandonment of the plaintiff by the defendant.
568 Rerorr or Jornt Lugisuative CoMMITTEE

4. Where the wife is plaintiff, the neglect or refusal of the
defendant to provide for her.

[Code § 1762, without change. Included by Board in Domestic Relations
Law, § 63.]

§ 1177. Action for separation; conditions attached to
maintenance. Such an action may be maintained in either of
the following cases:

1. Where both parties are residents of the state when the action
is commenced.

2. Where the parties were married within the state and the
plaintiff is a resident thereof when the action is commenced.

3. Where the parties, having been married without the state,
have become residents of the state, and have continued to he resi-
dents thereof at least one year; and the plaintiff is such a resident
when the action is commenced.

[Code § 1763, without change. Included by Board in Domestic Relations
Law, § 63-a.]

§ 1178. Defense in action for separation. The defend-
ant in an action for separation from bed and board may set up, in
justification, the misconduct of the plaintiff; and if that defence
is established to the satisfaction of the court, the defendant is
entitled to judgment.

[Code § 1765, without change of substance. Included by Board in
Domestic Relations Law, § 63-c.]

§ 1179. Maintenance of wife and children in action for
separation. Where [the] an action for separation from bed and
board is brought by the wife, the court [may], in the final judg-
ment of separation, may give such directions as the nature and cir-
cumstances of the case require. In particular, it may compel the
defendant to provide suitably for the education and maintenance
of the children of the marriage and for the support of the plain-
{iff, as justice requires, having regard to the circumstances of the
respective parties. And the court [may], in such an action, may
render a judgment eompelling the defendant to make the provision
specified in this section where, under the circumstances of the
case, such a judgment is proper, without rendering a judgment of
separation. °

[Code § 1766, without change. Included by Board in Domestic Relations
Law, § 63-d.]
Civit Practice Act 569

§ 1180. Judgment for separation may be revoked.
Upon the joint application of the parties, accompanied with satis-
factory evidence of their reconciliation, a judgment for a separa-
tion, forever, or for a limited period, rendered as prescribed in this
article, may be revoked at any time by the court which rendered
it, subject to such regulations and restrictions as the court thinks
fit to impose.

[Code § 1767, without change. Included by Board in Domestic Relations
Law, § 63-e.]

ARTICLE 71

MATRIMONIAL ACTIONS; PROVISIONS AP-
PLICABLE TO TWO OR MORE

Section 1181. Residence of married woman in action for divorce

or separation.

1182. Notice of nature of matrimonial action, when re-
quired and proof thereof.

1183. Counterclaim in action for divorce or separation.

1184. Alimony and expenses in action for divorce or
separation.

1185. Custody and maintenance of children, and support
of plaintiff in action for divorce or separation.

1186. Security for payments by defendant in action for
divorce or separation; sequestration.

1187. Enforcement by contempt proceedings of judgment

or order in action for divorce or separation.

1188. Costs in action for divorce or separation.

1189. Judgment in matrimonial action must be rendered
by court.

1190. Interlocutory judgment in action to annul a mar.
riage or for divorce.

1191. Time for entry of final judgment in action to annul
a marriage or for divorce.

§ 1181. Residence of married woman in action for
divorce or separation. If 4 married woman dwells within the
state when she commences an action against her husband for
divorce or separation, [as prescribed in either of the last two
570 Rervorr or Jornt Leaisntative CoMMITTEE

articles,] she is deemed a resident thereof, although her husband
resides elsewhere.

[Code § 1768, without change, Included by Board in Domestic Relations
Law, 8§ 62-c, 62-b.]

§ 1182. Notice of nature of matrimonial action, when
required and proof thereof. In an action to annul a marriage
or for divorce or for separation [brought as prescribed in this
title], a [final] judgment shall not be rendered in favor of the
plaintiff upon the defendant’s default in appearing or pleading,
unless either the summons and a copy of the complaint were per-
sonally served upon the defendant, or the copy of the summons
delivered to the defendant, upon personal service of the summons,
or delivered to him without the state, or published, pursuant to an
order for that purpose, [obtained as prescribed in chapter fifth of
this act,]J contains the following words, or words to the same effect,
legibly written or printed upon the face thereof, to wit: “Action
to annul a marriage;” “Action for a divorce;” or “Action for a
separation ;” as the case may be [according to the article of this
title, under which the action is brought. Where the summons
is personally served, but a copy of the complaint is not served
therewith; or where a copy of the summons and copy of the com-
plaint are delivered to the defendant without the state, the cer-
tificate or affidavit proving service, must affirmatively state, in the
body thereof, that such an inscription, setting forth a copy thereof.
was so written or printed upon the face of the copy of the sum-
mons delivered to the defendant].

[Code § 1774, first two sentences. The word “ final” omitted to conform to
the practice of entering an interlocutory judgment. Included by Board in

rule 302, subd. 1, and rule 219, subd. 5. The last sentence in brackets is
included under “ proof of service.’’]

§ 1183. Counterclaim in action for divorce or separa-
tion. Where an action for divorce or separation is brought by
either husband or wife[, as prescribed in either of the last two
articles], a cause of action for divorce or separation against the
plaintiff and in favor of the defendant [arising under either of
said articles, J may be interposed in connection with a denial of
the material allegations of the complaint, as a counterclaim.

[Code § 1770, without change of substance. Omitted by Board as covered by
rule 192.]
Civin Practice Ac 571

§ 1184. Alimony and expenses in action for divorce or sepa-
ration. [Where] Jn an action for divorce or separation [is
brought, as prescribed in either of the last two articles], the court
[may], in its discretion, during the pendency thereof, from time
to time, may make and modify an order or orders requiring the
husband to pay any sum or sums of money necessary to enable the
wife to carry on or defend the action, or to provide suitably for
the education and maintenance of the children of the marriage, or
for the support of the wife, having regard to the circumstances of
the respective parties.

[Code § 1769, first sentence, without change of substance. Included by
Board in Domestic Relations Law, § 61-b.]

§ 1185. Custody and maintenance of children, and support
of plaintiff in action for divorce or separation. Where an ac-
tion for divorce or separation is brought by either husband or
wife[[, as prescribed in either of the last two articles], the court
[must], except as otherwise expressly prescribed by statute [in
those articles], must give, either in the final judgment, or by one or
more orders, made from time to time before final judgment, such
directions as justice requires, between the parties, for the custody,
care, education and maintenance of any of the children of the mar-
riage, and where the action is brought by the wife, for the support
of the plaintiff. The court [may], by order, upon the application
of either party to the action, after due notice to the other, to be
given in such manner as the court shall prescribe, at any time after
final judgment, may annul, vary or modify such directions, or in
case no such direction or directions shall have been made, may
amend it by inserting such direction or directions as justice re-
quires for the custody, care, education and maintenance of any
such child or children in such final judgment or order or orders.
But no such application shall be made by a defendant unless leave
to make the same shall have been previously granted by the court
by order made upon or without notice as the court in its discretion
may deem proper after presentation to the court of satisfactory
proof that justice requires that: such an application should be
entertained.

[Code § 1771, except last sentence. Included by Board in Domestic Relations
Law, § 61-c.]

§ 1186. Security for payments by defendant in action
for diverce or separation; sequestration. Where a judgment
572 Report or Joint Leeisuarive CoMMITTEE

rendered or an order made in an action in this state for divorce
or separation[[, as prescribed in this article, or in either of the
last two articles], or a judgment for divorce or separation rendered
in another state upon the ground of adultery upon which an
action has been brought in this state and judgment rendered
therein, requires a husband to provide for the education or main-
tenance of any of the children of a marriage, or for the support of
his wife, the court [may], in its discretion, also may direct him to
give reasonable security, in such a manner and within such a time
as it thinks proper, for the payment, from time to time, of the sums
of money required for that purpose. If he fails to give tke security,
or to make any payment required by the terms of such a judgment
or order, whether he has or has not given security therefor, or to
pay any sum of money for the expenses of the plaintiff or for her
support and maintenance or the support and maintenance of the
children during the pendency of the action which he is required
to pay by an order, made as prescribed in section seventeen hun-
dred and sixty-nine of this act}, the court may cause his personal
property and the rents and profits of his real property to be se
questered, and may appoint a receiver thereof. The rents and
profits and other property so sequestered may be applied, from time
to time, [applied,} under the direction of the court, to the pay-
ment of any of the sums of money specified in this section, as jus-
tice requires; and if the same shall be insufficient to pay the sums
of money required, the court [may], on application of the re
ceiver, may direct the mortgage or sale by the receiver, under such
terms and conditions as it may prescribe, of sufficient of his real
estate to pay such sums.

[Code § 1772, without change of substance. See Board’s Domestic Relations
Law, § 6l-a.]

§ 1187. Enforcement by contempt proceedings of judg-
ment or order in action for divorce or separation. Where
the husband, in action for divorce or separation, or for the enforce-
ment in this state of a judgment for divorce or separation rendered
in another state, makes default in paying any sum of money [speci-
fied in the last section, as required by the judgment or order
directing the payment thereof, and it appears presumptively, to
the satisfaction of the court, that pavment cannot be enforced by
means of the sequestration of lis property [proceedings prescribed
in the last section], or by resorting to the security, if any, given
Crvin Practice Act 573

as [therein] prescribed by statute, the court [may], in its discre-
tion, may make an order requiring the husband to show cause be-
fore it at a time and place therein specified why he should not be
punished for his failure to make the payment; and thereupon pro-
ceedings must be taken to punish him, as prescribed in article nine-
teen of the judiciary law for the punishment of a contempt of
court other than a criminal contempt. Such an order to show
cause may also be made without any previous sequestration or
direetion to give security where the court is satisfied that they
would be ineffectual.

[Code § 1773, without change of substance. Included by Board in rule
387, subd. 4.]

§ 1188. Costs in action for divorce or separation. The
final judgment in [such] an action for divorce or separation may
award costs in favor of or against either party, and an execution
may be issued for the collection thereof, as in an ordinary case;
or the court [may], in the judgment, or by an order made’ at any
time, may direct the costs to be paid out of any property seques-
tered, or otherwise in the power of the court.

[Code § 1769, second sentence. Included by Board in Costs Law, §§ 55,
157.]

§ 1189. Judgment in matrimonial action must be ren-
dered by court. Jn an action to annul a marriage or for a
divorce or separation, judgment cannot he taken, of course, upon a
referee’s report, as prescribed in the last section, or where the
reference was made, as prescribed in section 1215 of this act].
Where a reference is made in such an action, the testimony and
the other proceedings upon the reference must be certified to the
court by the referee with his report; and judgment must be
rendered by. the court.

[Code § 1229, without change of sentence. Included by Board in rule
272, subd. 3.]

§ 1190. Interlocutory judgment in action to annul a mar-
riage or for divorce. The interlocutory judgment in an action to
annul a marriage or for divorce may provide, in the discretion of
the court, [provide] for the payment of alimony or for the support
cand maintenance of the children of the marriage until the entry of
final judgment; it may include a judgment for costs, when costs
574 Report or Joint LeaqistatriveE ComMMITTEE

are awarded, in which case said judgment for costs shall be dock-
eted by the clerk, and thereupon shall have the same force and
effect as if docketed upon the entry of final judgment therein,
except that it shall not be enforceable by execution or punishment
until the entry of final judgment in said action.

[Code § 1774, last sentence, without change of substance, except that the
words italicized are new. Included by Board in rule 298.]

§ 1191. Time for entry of final judgment in action to
annul a marriage or for divorce. No final judgment annulling
a marriage or divorcing the parties and dissolving a marriage
shall be entered{[, in an action brought under either article first or
article second of this title,] until after the expiration of three
months after the filing of the decision of the court or report of
the referee. Such decision or report must be filed and interlocu-
tory judgment thereon must be entered within fifteen days after
the party becomes entitled to file or enter the same, and cannot be
filed or entered after the expiration of said period of fifteen days
unless by order of the court upon application and sufficient cause
being shown for the delay. Within thirty days after the expira-
tion of said period of three months, final judgment shall be entered
as of course upon said decision or report, unless for sufficient
cause the court in the meantime shall have otherwise ordered.
Upon filing the decision of the court or report of the referee, a
judgment annulling a marriage or divorcing the parties and dis-
solving a marriage shall be interlocutory only and shall provide
for the entry of final judgment granting such relief three months
after entry of interlocutory judgment unless otherwise ordered by
the court. The final judgment must be entered within thirty days
after the expiration of said period of three months and cannot be
entered after the expiration of such period of thirty days except
by order of the court on application and sufficient cause being
shown for the delay.

[Code § 1774, in part, without change of substance. Covered in part by
Board rule 298.]
Crvin Practice Act 575

ARTICLE 72

ACTION FOR PENALTY, FORFEITURE OR ON
FORFEITED RECOGNIZANCE

Section 1192. When action for penalty or forfeiture cannot be

maintained.

1193. Action for penalty or forfeiture to people.

1194. Action for penalty or forfeiture by person ag-
grieved,

1195. Action for penalty or forfeiture by common in-
former.

1196. When action by common informer not barred by a
conclusive recovery.

1197. When part of a penalty or forfeiture may be
recovered,

1198. Action to recover personal property forfeited for
treason.

1199. Forfeiture of and action on recognizance.

§ 1192. When action for penalty or forfeiture cannot
be maintained. Whenever, by the decision of the appellate
division of the supreme court, a construction is given to a statute,
an act done in good faith and in conformity to that construction,
after the decision was made and before a reversal thereof by the
court of appeals, is so far valid that the party doing it is not liable
to any penalty or forfeiture for an act that was adjudged lawful by
the decision of the court below. [But t]This section does not con-
trol or affect the decision of the court of appeals upon an appeal
actually taken before the reversal.

[Code § 1961, without change. Included by Board in Civil Rights Law,
§ 214. In the Code classification this section is included under “ action in
behalf of the people.” Its provisions are general and apply also to actions by
private persons for fines or penalties. See Hollaman y. El Arco Mines Co.,
137 App. Div. 862. This and the following sections to § 1966 inclusive are

here included in a proposed article on “ Fines and Penalties,” applicable to
actions in behalf of the people and also to actions brought by private persons.]

§ 1193. Action for penalty or forfeiture to people.
Where real or personal property has been forfeited, or a penalty
incurred, to the people of the state, or to an officer, for their use,
576 Reporr or Joint LearsiativeE ComMITTEE

pursuant to a provision of law, the attorney-general, or the dis-
trict attorney of the county in which the action is triable, if such
action has not already been brought by the attorney-general, must
bring an action to recover the property or penalty in a court hav-
ing jurisdiction thereof. Where the supreme court and a justice’s
court have concurrent jurisdiction of the action, it may be brought
in either, at the election of the attorney-general or district attorney.
A recovery in such an action bars the recovery in any other action
brought for the same cause.

[Code § 1962. Included by Board in Executive Law, § 69-b; Public Officers

Law, § 2-j; Civil Rights Law, § 215. The italicized words are new, and ex-
plain themselves. ]

§ 1194. Action for penalty or forfeiture by person
aggrieved. Where a penalty or forfeiture is given by a statute to
a person aggrieved by the act or omission of another, the person to
whom it is given [may, if it is pecuniary, may maintain an action
to recover the amount thereof ; or, if it consists of the forfeiture of
a chattel, he may maintain an action to recover the chattel or its
value or other damages, as the case requires.

[Code § 1893, without change. Included by Board in Civil Rights Law,
§ 208.]

§ 1195. Action for penalty or forfeiture by common
informer. Where a penalty or forfeiture is given by a statute
to any person who sues therefor, an action to recover it may be
maintained by any person in his own name; but the action cannot
be compromised or settled without the leave of the court in which
it is brought.

[Code § 1894, without change. Included by Board in Civil Rights Law,
§ 209.]

§ 1196. When action by common informer not barred
by a collusive recovery. In an action to recover a penaity or
forfeiture given by a statute, brought by any person other than
the person aggrieved, or a public officer, the plaintiff may recover,
notwithstanding the recovery of a judgment, for or against the
defendant, in an action brought therefor by another person, if he
establishes that the former judgment was recovered collusively and
fraudulently.

[Code § 1896, without change. Included by Board in Civil Rights Law,
§ 210.)
Crvizn Practice Act 577

§ 1197. When part of a penalty or forfeiture may be
recovered. Where a statute gives to a person aggrieved or
to a common informer or to the people of the state or to an officer
for their use a pecuniary penalty or forfeiture not exceeding
a specified sum, an action may be maintained to recover the sum
specified ; and the court, jury or referee, by which or by whom the
issues of fact are tried, or, where judgment is taken by default for
failure to appear or plead, the damages are ascertained, may award
to the plaintiff the whole sum, or such a part thereof as he or it
deems proportionate to the offence.

[Code § 1898, without change of substance. The italics are to cover
Code § 1964, which expressly makes the section applicable to actions for pen-

alties and forfeitures in behalf of the people. The section is included by
Board in Civil Rights Law, § 216.]

§ 1198. Action. to recover personal property forfeited
for treason. Where personal property is forfeited to the people
upon a conviction of outlawry for treason, the attorney-general
inust bring and may maintain an action to recover the same or
the value thereof, or such other action founded upon the forfeiture
as might be maintained by a private person who had acquired title
to the property.

[Code § 1982, without change. Formerly included by Committee in Execu-
tive Law, § 69. The provisions of §§ 1977-1981, inclusive, relating to real
property forfeited for treason, have been included in Public Lands Law. The
above § 1982 included by Board in Civil Rights Law, § 211.]

§ 1199. Forfeiture of and action on _ recognizance.
Where the condition of a recognizance is broken, an order of the
court directing the prosecution of the recognizance is a sufficient
forfeiture thereof. Where a recognizance to the people is for-
feited, [and the district attorney of the county in which it was
taken, brings an action to recover the penalty thereof,] it is not
necessary[, J in [such] an action to recover the penalty thereof to
allege or prove any damages by reason of the breach of the con-
dition; but where the people are entitled to judgment therein, they
must have judgment absolute for the penalty of the recognizance.

[Code §§ 1965, 1966, without change of substance. Included by Board in
Evidence Law, §§ 107, 108.]

19
578 Rerortr or Jornr Leersuarive CoMMITTEE

ARTICLE 73
ACTIONS_BY JUDGMENT CREDITORS

Section 1200. Action to charge defendants not personally sum-

moned; provisional remedies.

1201. Complaint in action against defendants not sum-
moned.,

1202. Answer in action against defendants not sum-
moned.

1203. Judgment and costs in action against defendants
not summoned.

1204. Judgment creditor’s action for discovery and satis-
faction.

1205. To what county execution must have issued.

1206. What property may be reached.

1207. Interest of judgment debtor in land contract may
be reached and applied.

1208. Injunction may be issued.

1209. Receiver may be appointed.

1210. How discovery may be compelled.

1211. Application of provisions for action of discovery ;
what property cannot be reached.

§ 1200. Action to charge defendants not _ personally
summoned; provisional remedies. After the recovery of a judg-
ment against joint debtors[[, as prescribed in section 1932 of this
act], under a complaint demanding judgment for a sum of money
against two or more defendants alleged to be jointly indebted upon
a contract, an action may be maintained by the judgment creditor
against one or more of the defendants who were not summoned in
the original action, to procure a judgment charging his or their
property with the sum remaining unpaid upon the original judg-
ment. For the purpose of obtaining an order of arrest, an injunc-
tion order or a warrant of attachment, the action is regarded as
being founded upon the contract upon which the original judg-
ment was recovered.

[Gode §§ 1937, 1940, without change of substance. Included by Board in
Debtor and Creditor Law, §§ 1-0, 1-p.]

§ 1201. Complaint in action against defendants not sum-
moned. The complaint in such an action must be verified,
Crvin Practice Act 579

must contain an allegation that ihe judgment has not been paid,
and must state the sum remaining unpaid thereupon at the time
of the verification.

[Code § 1938, without change of substance. Omitted by Board as covered
by General Rules of Pleading. ]

§ 1202. Answer in action against defendants not sum-
moned. The defendant’s answer in such action is restricted
to defences or counterclaims which he might have made in the
original action if the summons therein had been served upon him
when it was first served upon a defendant jointly indebted with
him; objections to the judgment; and defences or counterclaims
which have arisen since it was rendered.

[Code § 1939, without change of substance. Included by Board in Debtor
and Creditor Law, § 1-p.]

§ 1203. Judgment and costs in action against defend-
ants not summoned. Where the judgment in such action is in
favor of the plaintiff, it must determine the sum remaining unpaid
upon the original judgment; and it may be docketed, and an execu-
tion may be issued thereupon, as if it was a judgment for the sum
so remaining unpaid, and the costs, if any. Costs must be awarded
as if the action was brought upon the original contract and the sum
so remaining unpaid had been recovered therein,

[Code § 1941, without change of substance. Included partly by Board in
Costs Law, § 51.]

§ 1204. Judgment creditor’s action for discovery and
satisfaction. When an execution against the property of a judg-
ment debtor issued out of a court of record, as prescribed in the
next section, has been returned wholly or partly unsatisfied, the
judgment creditor may maintain an action against the judgment
debtor and any other person to compel the discovery of any thing
in action or other property belonging to the judgment debtor, and
of any money, thing in action or other property due to him, or
held in trust for him; to prevent the transfer thereof or the pay-
ment or delivery thereof to him or to any other person; and to
procure satisfaction of the plaintiffs demandf[, as prescribed in
the next section but oneJ. Where the execution was issued as pre-
scribed in section twelve hundred and fourteen [1934] of this act,
and a defendant not summoned in the original action is made a
580 Reporr or Joint LuaistarivE CoMMIrTEE

defendant in an action brought under this section, personal prop-
erty owned by him jointly with the defendants summoned or with
any of them may be applied to the satisfaction of the plaintiff’s
demand as prescribed in this article.

[Code § 1871, without change of substance. Included by Board in Debtor
and Creditor Law, § 1-q.]

§ 1205. To what county execution must have issued.
To entitle the judgment creditor to maintain an action as pre-
scribed in the last section, the execution must have been issued as
follows:

1. If, at the time of the commencement of the action the judg-
ment debtor is a resident of the state, to the sheriff of the county
where he resides.

2. If he is not then a resident of the state, to the sheriff of the
county where he has an office for the regular transaction of busi-
ness in person; or, if he has no sach office within the state, to the
sheriff of the county where the judgment-roll is filed, unless the
execution was issued out of a court other than the court in which
the judgment was rendered; in which case, it must have been issued
to the sheriff of the county where a transcript of the judgment is
filed.

[Code § 1872, without change. Included by Board in Debtor and Creditor
Law, § 1-r.]

8 1206. What property may be reached. The final
judgment in the action must direct and provide for the satisfaction
of the sum due to the plaintiff, ont of any money, thing in action
or other personal property belonging to or due to the judgment
debtor or held in trust for him, which is discovered in the action;
whether the same might or might not have been originally taken by
virtue of an execution.

[Code § 1873, without change. Included by Board in Debtor and Creditor
Law, § 1-s.]

§ 1207. Interest of judgment debtor in land contract may be
reached and applied. The final judgment in the action also must
[also] direct and provide for the satisfaction of the sum due to
the plaintiff, out of the interest, if any, of the judgment debtor, in
a contract for the purchase of real property by him, either hy sell-
ing the interest, or by transferring it to the judgment creditor, in
Civin Puactics Act 581

such a manner and upon such terms as the court deems most con-
ducive to the interests of the parties. Where the person bound to
perform the contract to the judgment debtor is a defendant in the
action, the final judgment may direct a specific performance of the
contract to the judgment creditor, or, where the interest in the con-
tvact is directed to be sold, to the purchaser. [In a case specified
in the last section, t¥7he value of the interest of the judgment
debtor holding the contract must be ascertained under the direc-
tion of the court; and so much thereof as is necessary must be
applied to the payment of the sum due to the plaintiff, and the
residue, if any, to the benefit of the judgment debtor.

[Code §§ 1874, 1875, without change. Included by Board in Debtor and
Creditor Law, 1-t.]

§ 1208. Injunction may be issued. A temporary injunction
restraining the transfer to any person, or the payment or delivery
to the judgment debtor, of any money, thing in action or other
property or interest which [may], by the provisions of this article,
may be applied to the satisfaction of the sum due to the plaintiff,
may be granted in the action. The injunction{[, and the proceed-
ings before and after it is granted, are governed by the provisions
of article first of title second of chapter seventh of this act; for
which purpose, the injunction] is deemed to be one in which the
wight thereto depends upon the nature of the action [of those speci-
fied in section 603 of this act].

[Code § 1876, without change of substance. Included by the Board in
Debtor and Creditor Law, § 1-u.]

§ 1209. Receiver may be appointed. The court [may], by an
order or by the interlocutory or final judgment in the action, may
appoint a receiver of any or all of the property of the judgment
debtor; and may direct the judgment debtor or any other defend-
ant in the action to convey or deliver to the receiver, as justice
requires, any property, real or personal, book, voucher or other
paper, or to execute any instrument, which it deems necessary for
perfecting or assuring the receiver's title or possession.

[Code § 1877, without change. Included by Board in Debtor and Creditor
Law, § 1-v.]

§ 1210. How discovery may be compelled. A discovery
may be compelled in [an] such action, [brought as prescribed in
582 Report or Joint LegistativE CoMMITTEE

this article,] by directing the person required to make it to appear
before the court, or a referee appointed by it, and to be examined
under oath concerning the matters pertaining to the discovery.
But this section does not affect the right of the plaintiff to cause
the deposition of a defendant to be taken as prescribed by statute
or rule [in article first of title third of chapter ninth of this act].

[Code § 1878, without change of substance. Included by Board in Debtor
and Creditor Law, § 1-w.]

§ 1211. Application of provisions for action of dis-
covery; what property cannot be reached. [This] The
provisions of this article authorizing and regulating an action by a
judgment creditor for discovery and satisfaction do [does] not
apply to a case where a judgment debtor is a corporation created
oy or under the laws of the state. Nor does it authorize the dis-
covery or seizure of, or other interference with, any property
which is expressly exempted by law from levy and sale by virtue
of an execution, or any money, thing in action or other property
held in trust for a judgment debtor, where the trust has been
created by, or the fund so held in trust has proceeded from, a per-
-on other than the judgment debtor; or the earnings of the judg-
ment debtor for his personal services rendered within sixty days
next before the commencement of the action, where it is made to
appear, by his oath or otherwise, that those earnings are necessary
for the use of a family wholly or partly supported by his labor.

[Code § 1879, without change. Included by Board in Debtor and Creditor
Law, § 1-x.]

ARTICLE 74
ACTIONS AGAINST JOINT DEBTORS

Section 1212. Action against defendants jointly indebted when
all are not served.
1213. Effect of judgment in such action.
1214. Execution; indorsement; enforcement.
1215. Judgment, how docketed; effect of docketing.
1216. Action against partner not joined in action on
partnership liability.

§ 1212. Action against defendants jointly indebted when
all are not served. Jn an action wherein the complaint
Civin Practice Act 5838

demands judgment for a sum of money against two or more
defendants alleged to be jointly indebted upon contract, if the
summons is served upon one or more but not upon all of the
defendants, the plaintiff may proceed against the defendant or
defendants upon whom it is served, unless the court otherwise
directs; and, if he recovers final judgment, it may be taken
against all the defendants thus jointly indebted.

[Code § 1932, without change. Omitted by Board, as covered by general
provisions, rule 292, ete.]

§ 1213. Effect of judgment in such action. Such a judgment
is conclusive evidence of the liability of each defendant upon
whom the summons was personally served or who appeared in
the action. Where it is taken against a defendant upon whom
the summons was served by publication or without the state, pur-
suant to an order for that purpose, he or his representative, on
application, upon good cause shown and upon just terms, must
he allowed to defend after final judgment, at any time within one
year after personal service of written notice thereof, or, if such
« notice has not been served, within seven years after the filing of
the judqment-roll[, it has the effect as against that defendant,
specified in section 445 of this act]. As against such a defendant
who is allowed to defend after judgment, or as against a defendant
not summoned, it is evidence only of the extent of the plaintiff’s
demand, after the lability of that defendant has been established
by other evidence.

[Code § 1933, without change of substance. Included by Board in Evidence
Law, § 67.]

§ 1214. Execution; indorsement; enforcement. An exe
cution upon such a judgment must be issued, in form, against
all the defendants; but the attorney for the judgment creditor
must indorse thereupon a direction to the sheriff containing the
name of each defendent who was not summoned and restricting
the enforcement of the execution, as prescribed in [the next]
this section. An execution against the person issued upon
such a judgment shall not be enforced against the person of a
defendant whose name is so indorsed thereupon. An execution
against property issued upon such a judgment shall not be levied
584 Reporr or Jornr Learsnative CoMMITTEE

upon the sole property of such a defendant; but it may be col-
lected out of personal property owned by him jointly with the
other defendants who were summoned, or with any of them, and
out of the real and personal property of the latter, or of any of
them.

[Code §§ 1934, 1935, without change of substance. Partly included by
Board in Civil Rights Law, § 115.]

§ 1215. Judgment, how docketed; effect of docketing.
Where a judgment has been taken against two or more defendants
jointly indebted upon contract and the summons has been served
upon one or more of the defendants but not upon all of them{[, as
prescribed in section 1932 of this act], the clerk with whom the
judgment-roll is filed must write upon the docket opposite or
under the name of each defendant upon whom the summons was
not served the words “not summoned’; and a like entry must
be made by each county clerk with whom the judgment is after-
wards docketed. The judgment does not, by virtue of its being
docketed, bind any real property or chattel real owned by such a
defendant. But this section does not affect the plaintifi’s right of
action to charge the judgment upon any real property.

[Code § 1936, without change of substance. Included by Board in County
Law, § 176, and Lien Law, § 188.]

§ 1216. Action against partner not joined in action on
partnership liability. Where, for any cause, one or more
partners have not been joined as defendants in an action upon a
‘partnership liability, and final judgment has been taken against
the persons made defendants therein, the plaintiff, if the judg-
rnent remains unsatisfied, may maintain a separate action upon
the same demand against each omitted partner, setting forth in
the complaint the facts specified in this section as well as the
facts constituting his cause of action upon the demand.

[Code § 1946. without change. Included by Board in Partnership Law,
§ 11.J
or
Dm
Or

Crvit Practice Act

ARTICLE 75

ACTIONS OR PROCEEDINGS IN BEHALF OF
THE PEOPLE; GENERAL PROVISIONS

Section 1217. Actions in behalf of people to be brought in the

name of the people.

1218. Complaint and title of action must show relator.

1219. Joinder of causes of action in favor of people
against same person.

1220. Consolidation of zctions in behalf of people against
several defendants.

1221. Proceedings in action brought in behalf of people.

1222. Judgment or order against the people in action or
special proceeding brought in their behalf.

§ 1217. Actions in behalf of people to be brought in
the name of the people. An action brought in behalf of the
people [as prescribed in this title], except an action to recover
a penalty or forfeiture expressly given by law to a particular
officer, must be brought in the name of the people of the state[[ ;
and the proceedings therein are the same, as in an action by a
private person, except as otherwise specially prescribed in this
title].

[Code § 1984, first clause, without change of- substance, except to broaden

application to cover in terms all actions in behalf of people. Included by
Board in rule 122. The last clause is in separate ‘section, post.]

§ 1218. Complaint and title of action must show relator.
Where an action is brought by the attorney-general[[, as pre-
scribed in this title,J on the relation or information of a per-
son having an interest in the question, the complaint must
allege, and the title of the action must show, that the action is
brought upon the relation of that person. [In such a case, the
attorney-general must, as a condition of bringing the action,
require the relator to give satisfactory security to indemnify the
people, against the costs and expenses thereof. Where security is
so given all costs and disbursements taxed in favor of the plain-
tiff shall be payable to the relator.J

[Code § 1986, first sentence, without change, except to broaden its scope to

all such actions. The second sentence is under General Practice Provisions.
The third: sentence is included in Executive Law.]
586 Report or Joint LeaisuativE CoMMITTEE

§ 1219 Joinder of causes of action in favor of people
against same person. Where two or more causes of action exist
in favor of the people against the same person for money due
upon, or damages for the non-performance of, one or more con-
tracts of the same nature, the attorney-general must join all those
causes in one action.

[Code § 1988, without change. Omitted by Board as covered by rule 180,
which, however, is permissive, whereas the above section is mandatory.]

§ 1220. Consolidation of actions in behalf of people
against several defendants. Where two or more actions brought
in behalf of the people upon the same mortgage or other con-
tract are pending against separate defendants claiming or defend-
ing under the same title, the attorney-general [must], upon the
request of the defendants, must cause them to be consolidated into
one action; and only one bill of costs can be taxed against the
defendants.

[Code § 1989, without change. Omitted by Board as covered by Civil Prac-

tice Act, § 13, and other provisions for consolidation of causes of actions.
The above section is mandatory.]

§ 1221. Proceedings in action brought in behalf of
people. The proceedings in an action brought in behalf of the
people are the same as in an action by a private person, except as
otherwise specially prescribed by statute or rule.

[Code § 1984, second, clause, without change of substance, except to broaden

application to all actions in behalf of people. Included by Board in Civil
Rights Law, § 217.]

§ 1222. Judgment or order against the people in action
or special proceeding brought in their behalf. \Vhere judg-
ment is rendered or a final order is made against the people in
a civil action brought, or special proceeding instituted, in their
name, by a public officer, pursuant to a provision of law, it must
be to the same effect and in the same form as against a private
individual who brings a hke action or institutes a like special
proceeding, except as otherwise specially prescribed by statute or
rule Plaw. But an execution shall not be issued against the
people].

[Code § 1985. first sentence, without change. Included by Board in Civil
Rights Law, § 217]
Civit Practicr Act

or
w
rt

ARTICLE 76

ACTION BY PEOPLE KOK USURPATION OF OF-
FICE, FRANCHISE OR COKFOKATE RIGHT

Section 1223. Action by attorney-general against usurper of office
or franchise.

1224. One action againsi. several persons.

1225. Action by attorney-general for forfeiture of public
office.

1226. Proceedings in action for usurpation when com-
plaint names rightful incumbent.

1227. Order of arrest in action for usurpation.

1228. Assumption of othce by person entitled; delivery
of books and papers.

1229. Action for damages for usurpation of office.

1230. Final judgment in action for usurping office or
franchise.

1231. Fine in action for usurping office or franchise.

1282. Action by attorney-general for unlawful exercise
of corporate rights.

1233. Injunction in action by attorney-general for unlaw-
ful exercise of corporate rights.

1234. Immunity of witnesses in action by attorney-
general for wnlawful exercise of corporate
rights.

1235. Costs against corporation or usurpers of franchise
of corporation.

1236. Action triable by jury.

§ 1223. Action by attorney-general against usurper of
office or franchise. The attorney-general may maintain an
action, upon his own information or upon the complaint of a
private person, against a person who usurps, intrudes into or
unlawfully holds or exercises within the state a franchise or a
public office, civil or military, or an office in a domestic corpora-
tion.

[Code § 1948, subd. 1, without change. Included by Board in Public Offi-
cers Law, § 2-g.]

§ 1224. One action against several persons. Where
two or more persons claim to be entitled to the same office or fran-
588 Revorr or Jornr LeaisnativeE CoMMITTER

chise, the attorney-general may bring the action against all to
determine their respective rights thereto.

[Code § 1954, without change. Included by Board in Publie Officers Law,
§ 2-h.]

§ 1225. Action by attorney-general for forfeiture of
public office. The attorney-general may maintain an action,
upon his own information or upon the complaint of a private per-
son, against a public officer, civil or military, who has done or
suffered an act which by law works a forfeiture of his office.

[Code § 1948, subd. 2, without change. Included by Board in Public Officers
Law, § 2-a.]

§ 1226. Proceedings in action for usurpation when
complaint names rightful incumbent. In an action[[, brought
as prescribed in the last section, for usurping, intruding into,
unlawfully holding or exercising an office, the attorney-general,
besides stating the cause of action in the complaint, may set
forth therein, in his discretion, [set forth therein] the name
of the person rightfully entitled to the office and the facts
showing his right thereto[[; and thereupon, and upon proof,
by affidavit, that the defendant, by means of his usurpation or
intrusion, has received any fees or emoluments belonging to the
office, an order to arrest the defendant may be granted by the
court, or a judge. The provisions of title first of chapter seventh
of this act apply to such an order, and the proceedings thereupon
and subsequent thereto, except where special provision is other-
wise made in this title. For that purpose, the order is deemed to
have been made as prescribed in section 549 of this act]. Judg-
ment may be rendered upon the right of the defendant and of
the party so alleged to he entitled, or only upon the right of the
defendant, as justice requires.

[Code § 1949, pt., without change. The omitted matter is included in sepa-
rate section. Omitted by Board as covered by general rules of pleading, and
the general provisions relating to judgments.]

§ 1227. Order of arrest in action for usurpation. If
the complaint in an action hy the attorncy-general for usurping,
intruding into, unlawfully holding or exercising an office, sets
forth the name of the person rightfully entitled to the office and
the facts showing his right thereto, an order to arrest the defend-
ant may be granted by the court, or a judge thereof, upon proof by
Crvin Practice Act 589

affidavit that the defendant by means of his usurpation or intru-
sion has received any fees or emoluments belonging to the office.
The provisions of statute or rule relating to orders of arrest gen-

erally apply to such order and the proceedings thereupon and sub-
sequent thereto.

[Code § 1949, pt., rewritten, without intended change of substance. Included
by Board in Civil Rights Law, § 36, subd. 1/1.]

§ 1228. Assumption of office by person entitled; delivery
of books and papers. Where final judgment is rendered upon
the right and in favor of the person [so] alleged in the complaint
to be entitled to an office, he may take upon himself the execution
of the office, after taking the oath of office and giving an official
bond, as prescribed by law[[, take upon himself the execution of
the office}. He must€&, immediately thereafter, demand of the
defendant in the action, immediately thereafter, delivery of all
the books and papers in the custody or under the control of
the defendant, belonging to the office from which the defendant has
been so excluded. If the defendant refuses or neglects to deliver
any of the bodks or papers, [demanded as prescribed in the last
section, he is guilty of a misdemeanor; and the same proceedings
must be taken to compelJ the delivery thereof may be compelled
in the manner provideu by section eighty of the public officers law
[as are now or shall hereafter be prescribed by law, where a per-
son who has held an office refuses or neglects to deliver the official
books or papers to his successor].

[Code §§ 1951, 1952, without change of substance. Included by Board in
Public Officers Law, § 72; Penal Law, § 368.]

§ 1229. Action for damages for usurpation of office. Where
final judgment has been rendered upon the right and in
favor of the person [so} alleged in the complaint to he entitled to
an office, he may recover, by action against the defendant, the
damages which he has sustained in consequence of the defendant’s
usurpation, intrusion into, unlawful holding or exercise of the
office,

[Code § 1953, without change of substance. Included by Board in Public
Officers Law, § 2-i.]

§ 1230. Final judgment in action for usurping office
or franchise. In any [other] action, brought as prescribed in
590 Reporr or Jorny LecisnativeE CoMMITTEE

this article, where a defendant is adjudged to be guilty of usurp-
ing or intruding into or unlawfully holding or exercising an office,
franchise or privilege, final judgment must be rendered, ousting
and excluding him therefrom, and in favor of the people or the
relator, as the case requires, for the costs of the action.

{Code § 1956, pt., without change of substance. Omitted by Board as
covered by general provisions relating to judgments.]

§ 1231. Fine in action for usurping office or franchise.
As a part of the final judgment in an action for usurping or
intruding into or unlawfully holding or exercising an office, fran-
chise or privilege, the court [may], in its discretion, also may
award that the defendant, or, where there are two or more defend-
ants that one or more of them, pay to the people a fine not exceed-
ing two thousand doilars. The judgment for the fine may be
docketed and execution may be issued thereupon in favor of the
people, as if it had been rendered in an action to recover the fine.
[The fine, when collected, must be paid into the treasury of the
state.J

[Code § 1956, pt., without change of substance. Last sentence omitted as
covered by State Finance Law, § 37. Included by Board in Public Officers
Law, §§ 2-a, 2-g.]

§ 1232. Action by attorney-general for unlawful exercise of
corporate rights. The attorney-general may maintain an action
upon his own information or upon the complaint of a private
person,

1, [3.] Against one or more persons who act as a corporation
within the state without being duly incorporated; or exercises
within the state any corporate rights, privileges or franchises
not granted to them by the law of the state.

2. [4.] Against a foreign corporation which exercises within
the state any corporate rights, privileges or franchises not granted
to it by the law of this state; or which within the state has violated
any provision of law, or, contrary to law, has done or omitted any
act or has exercised a privilege or franchise not conferred upon it
hy the Jew of this state, where, in a similar ease. a domestic eor-
poration [would] in accordance with section one hundred and
thirty-one of the general corporation law, would be liable to an
action to vacate its charter and to annul its existence; or which
Crviz Practice Act 591

exercises within the state any corporate rights, privileges or fran-
chises in a manner contrary to the public policy of the state.

[Code § 1948, subds. 3 and 4, without change. Included by Board in Gen-
eral Corporation Law, §§ 53, 54.]

§ 1233. Injunction in action by attorney-general for un-
lawful exercise of corporate rights. Jn an action brought
as prescribed in section twelve hundred and thirty-two [subdivi-
sion third or fourth of section nineteen hundred and forty-eight]
of this act, the final judgment in favor of the plaintiff must
perpetually restrain the defendant or defendants from the
commission or continuance of the act or acts complained
of. A temporary injunction to restrain the commission or
continuance thereof may be granted upon proof, by affidavit,
that the defendant or defendants have violated any of the pro-
visions of such section [either of the said subdivisions third
or fourth of section nineteen hundred and forty-eight of this
act]. The provisions of statute or rule relating generally to
mjunctions as provisional remedies in actions [title second of
chapter seventh of this act] apply to such a temporary injunc-
tion and the proceedings thereupon[[, except where provision
is otherwise made in this title. For that purpose, the injunction
order is deemed to have heen granted as prescribed in section
six hundred and three of this act].

[Code § 1955, pt., without change of substance. Included by Board in
Civil Rights Law, § 184, subd. 2, except first sentence, which is said to be cov-
ered by general provisions relating to judgments.]

§ 1234. Immunity of witnesses in action by attorney=
general for unlawful exercise of corporate rights. In the
trial of an action brought as prescribed in [subdivisions third or
fourth of} section [nineteen hundred and forty-eight] tivelve hun-
dred and thirty-two of this act, a party or a witness is not excused
from answering a question on the ground that such answer will
tend to incriminate him; but such answer cannot be used as evi-
dence against the person so answering, in a criminal action or
criminal proceeding.

[Code § 1955, last sentence, without change of substance. First clause

included by Board in Evidence Law, § 90. Last clause in Code Criminal Pro-
cedure, § 393-b.]
592 Report or Jornt LegisuativE CoMMITTEE

§ 1235. Costs against corporation or usurpers of franchise
of corporation. Where final judgment in an action brought im
behalf of the people, pursuant to this article [as prescribed in
this title], is rendered against a corporation or person claiming
to be a corporation, the court may direct the costs to he collected
by execution against any of the persons claiming to be a cor-
poration; or by warrant of attachment or other process against
the person of any director or other officer of the corporation.

[Code § 1987, without change of substance. Included by Board in Costs
Law, § 47.]

§ 1236. Action triable by jury. An action brought as pre
seribed in this article is triable, of course and of right, by a jury
in like manner as if it [was] were an action in which the com-
plaint demands judgment for a sum of money only [specified in
section 968 of this act], and without procuring an order of the
court defining the issues[[, as prescribed in section 970 of this

act].

[Code § 1950, without change of substance. Included by Board in Civil
Rights Law, § 190, subd. 3.]

ARTICLE 77

ACTION BY PEOPLE FOUNDED UPON THE
SPOLIATION OR OTHER MISAPPROPRIA-
TION OF PUBLIC PROPERTY

Section 1237. Action by people in state courts for illegal receipt

or disposition of public funds or other property.

1238. Stay of other domestic actions; parties thereto to
be brought in.

1239. Actions in foreign courts.

1240. Cause of action vests in people on commencement
of action.

1241. Limitation of action.

1242. Ultimate disposition of proceeds of action in courts
of the state.

1243. Application for custody or disposition of proceeds
of action.

1244. Attorney-general inust bring action.

 
Crvit Practice Act 593

§ 1237. Action by people in state courts for illegal receipt
or disposition of public funds or other property. Where any
money, funds, credits, or other property, held or owned by the
state, or held or owned officially or otherwise for or in behalf
of a governmental or other public interest, by a domestic
municipal, or other publie corporation, or by a board, officer, cus:
todian, agency, or agent of the state, or of a city, county, town,
village or other division, subdivision, department, or portion of
the state, has heretofore heen, or is hereafter, without right
obtained, received, converted, or disposed of, an action to recover
the same, or to recover damages or other compensation for so
obtaining, receiving, paving, converting, or disposing of the same.
or hoth, may he maintained hy the people of the state in any court
of the state having jurisdiction thereof, although a right of action
for the same cause exists hy law in some other publie authority,
and whether an-action therefor in favor of the latter is or is not
pending when the action in favor of the people is commenced.

[Code § 1969, without change. Included by Board in Civil Rights Law,
§ 197.]

§ 1238. Stay of other domestic actions; parties thereto to
be brought in. Where an action is commenced by the people for
a cause specified in the last section, the court in which it is brought
[may], upon the application cf any party thereto, may grant
an order staying proceedings in any other action brought for the
same cause in the same or any other court of the state by a public
authority other than the people; and, if necessary or proper, it
may vacate any order or interlocutory judgment made or ren-
dered in such an action; and [it may], by the same order, or by a
subsequent order granted upon the application of any party to
either action, 7¢ may direct that anv party to the action so stayed
be brought in as a party to the action commenced by the people.

[Code § 1970, without change. Included by Board in Civil Rights Law,
§ 198.]

§ 1239. Actions in foreign courts. The people of the state
may commence and maintain in their own name or otherwise,
as is allowable, one or more actions, suits or other judicial
proceedings, in any court, or before any tribunal of the United
States, or of any other state, or of any territory of the United
594. Reporr or Joint Leaisuativs ComMMITTEE

States, or of any foreign country, for any cause specified in the
last section but one.

[Code § 1971, without change. Included by Board in Civil Rights Law,
§ 199.]

$ 1240. Cause of action vests in people on commence-
ment of action. Upon the commencement by the people of the
state of any action, suit or other judicial proceeding, as pre
scribed in this article, the entire cause of action, including the
title to the money, funds, credits, or other property, with respect
te which the suit or action is brought, and to the damages or other
compensation recoverable for the obtaining, receipt, payment,
conversion or disposition thereof, is not previously so vested, is
transferred to and becomes absolutely vested in the people of the
state.

[Code § 1972, without change. Included by Board in State Finance Law,
§ 49.]

§ 1241. Limitation of action. The people of the state
will not sue for a cause of action specified in this article unless
it accrued within ten years before the action is commenced.

[Code § 1973, without change. Included by Board in Civil Rights Law,
§ 200.]

§ 1242. Ultimate disposition of proceeds of action in
courts of the state. Any court of the state in which an action is
brought hy the people, as prescribed in this article, may direct, by
the final judgment therein, or by a subsequent order, [direct] that
any money, funds, damages, credits, or other property, recovered
hy or awarded to the plaintiff therein, which, if that action had
not been brought, would not have vested in the people, be disposed
of, as justice requires, in such a manner as to re-instate the lawful
custody thereof, or to apply the same or the proceeds thereof to
the objects and purposes for which they were authorized to be
raised or procured; after paying into the state treasury out of
the proceeds of the recovery all expenses incurred hy the people
in the action.

[Code § 1974, without change. Said by Board to be covered by General
Municipal Law, § 56.]

§ 1243. Application for custody or disposition of pro-
ceeds of action. Any corporation, board, officer, custodian,
Cirvit Practice Act 595

agency, or agent, [may,] in behalf of any city, county, town, vil-
lage, or other division, subdivision, department, or portion of the
state, which was not a party to an action, brought as prescribed in
this article, and which claims to be entitled to the custody or dis-
position of any of the money, funds, damages, credits, or. other
property, recovered by, or awarded to the plaintiff, by the final
judgment in the action, or any of the proceeds thereof, and not dis-
posed of as prescribed in the last section, may present, at any time
after the actual collection of the money and its payment into the
state treasury, or the actual receipt of the property by the people,
to the supreme court at a special term.thereof held in the county
of Albany, a verified petition setting forth the facts and praying
for the relief to which he or it is entitled. Notice of the applica-
tion and a copy of the petition must be served upon the attorney-
general. Upon the hearing the court may make such a final
order as justice requires for the isposition of the money or other
property, as prescribed in the last section.

{Code § 1975, without change. Included by Board in Executive Law,
§ 68.]

§ 1244. Attorney-general must bring action. The attorney-
general must commence an action, suit or other judicial proceed-
ing, as prescribed in this article, whenever he deems it for the
interests of the people of the state so to do; or whenever he is so
directed, in writing, by the governor.

[Code § 1976, without change. Included by Board in Executive Law,
§ 68.]

ARTICLE 78

HABEAS CORPUS AND CERTIORARI TO
INQUIRE INTO CAUSE OF DETENTION

Section 1245. Persons entitled to writs.
1946. Restrictions on allowance of writs.
1247. Applications generally.
1248. Writs issued at instance of people.
1249. Contents of petition.
1250. Grant of writ.
1251. Issuance of writ.
1252. Form of writ of habeas corpus.
1253. Form of writ of certiorari.
596 Rerorr or.Joint Lreistatrivs CoMMITTEE

Section 1254

1255.
1256.
1257.
1258.
1259.
1260.
1261.
1262.
1268.
1264.
1265.
1266.
1267.
1268.
1269,
1270.
1271.
1272.
1273.
1274.
1275.
1276.
1277.
1278.
1279.
1280.
1281.
1282.
1288,

1284.

1285,
1286.
1287,
1288.
1289.
1290.
1291.
1292.
12938.
1294.

When returnable.

Detects in form.

Issuance without application.

Service of habeas corpus or certiorari.

Service of habeas corpus and fees.

Obedience to writ and return.

Contents of return.

Production of prisoner.

Appearance of parties.

Disobedience of writ.

Precept to-bring up prisoner.

Assistance in execution of writ.

Proceedings on return of habeas corpus.

Remanding prisoner.

Discharge of prisoner in civil cases.

Inquiry by court upon return.

Proceedings on irregular commitment.

Commitment to enother officer.

Custody of prisoner pending the proceedings.

Notice before order for discharge made.

Answer to return and proceedings thereupon.

Proceedings upon sickness or infirmity of prisoner.

Certiorari instead of habeas corpus.

Final discharge of prisoner.

Habeas corpus after certiorari.

Bail on certiorari.

Discharge of prisoner bailed.

Service of final order for discharge.

Enforcement of order for discharge.

Final crder; application of provisions relating to
actions.

Reimprisonment of prisoner after discharge.

Concealing prisoner to avoid writ.

Warrant to bring up prisoner before writ issued.

Execution of warrant granted before writ.

Proceedings to punish offender.

Appeals in eases under this article.

Appeal by people.

Bail upon appeal.

Form of bail on appeal.

Appeal to court of appeals.

Custody of prisoner pending hail.
Civit Practice Act 597

Section 1295. Bail valid for adjourned terms.
1296. Delivery of copy of mandate or other authority.

1297. Application of urticle to other writs of habeas
corpus.

§ 1245. Persons entitled to writs. A person imprisoned or
restrained in his lberty, within the state, for any cause
vr upon any pretence, is entitled, except in one of the cases
epecified in the next section, to « writ of habeas corpus or a writ
of certiorari, as prescribed in this article, for the purpose of
inquiring into the cause of the imprisonment or restraint, and,
in a case prescribed by law, of delivering him therefrom. [[A
writ of habeas corpus may be issued and served under this sec-
tion, on the first day of the week, commonly called Sunday; but
it cannot be made returnable on that day.J

[Code § 2015. The last sentence has been covered under appropriate head-
ings elsewhere in this article. Section retained by Board. See Board’s pro-
posed Civil Rights Law, § 124, identical. It will be observed that while the
writs of habeas corpus and certiorari to inquire into the cause of detention are
retained, the other state writs formerly appearing in chapter sixteen of the
Code are abolished in this suggested practice act. The state constitution in
§ 4 of article 1 provides that ‘“‘ The privilege of the writ of habeas corpus
shall not be suspended, unless when, in cases of rebellion or invasion, the
public safety may require its suspension.” It was deemed best in view of this
constitutional provision to retain the writ of habeas corpus and the writ of
certiorari issued to inquire into the causes of detention.]

§ 1246. Restrictions on allowance of writs. A person
is not entitled to either of the writs specified in the last section
in either of the following cases:

1. Where he has been committed or is detained by virtue of a
mandate issued by a court or a judge of the United States, in a
case where such courts or judges have exclusive jurisdiction under
the laws of the United States or have acquired exclusive jurisdic-
tion by the commencement of legal proceedings in such a court.

2. Where he has been committed or is detained by virtue of
the final judgment or decree of a competent tribunal of civil or
criminal jurisdiction; or the final order of such a tribunal made
in a special proceeding instituted for any cause, except to punish
him for a contempt; or by virtue of an execution or other process
issued upon such a judgment, decree or final order.

[Code § 2016. See Board's proposed Civil Rights Law, § 124, identical.]
598 Rervorr or Joint Leeistatrive CoMMITTEE

§ 1247. Applications generally. Application for the writ
must be made, by a written petition, signed either by the per-
son for whose relief it is intended or by some person in his
behalf, to either of the following courts or officers: 2

1. The supreme court at a special term or the appellate divi-
sion thereof, where the prisoner is detained within the judicial
district within which the term is held.

2. A justice of the supreme court in any part of the state.

3. An officer authorized to perform the duties of a justice of the
supreme court at chambers, being or residing within the county
where the prisoner is detained; or, if there is no such officer
within that [city or] county capable of acting, or, if all those who
are capable of acting and authorized to grant the writ are absent,
or have refused to grant it, then to an officer authorized to per-
form those duties residing in an adjoining county.

Where application for either writ is made, as prescribed in sub-
division third of this [the last] section, without the county where
the prisoner is detained, the officer must require proof by the
cath of the person applying, or by other sufficient evidence, of the
facts which authorize him to act as therein prescribed; and if a
judge in that county, authorized to grant the writ, is said to be
incapable of acting, the cause of the incapacity must be specially
set forth. If such proof is not produced, the application must be
denied.

[Code §§ 2017 and 2018. Words “* city or” omitted as unnecessary in view

of the retention of the word “county.” See Board’s proposed Civil Rights
Law, § 125, practically identical.]

§ 1248. Writs issued at instance of people. Where [a
state] either writ is required in an action or special proceed-
ing, civil or criminal, to which the people are a party or in which
they are interested, it may be awarded upon the application of
the attorney-general, or of the district attorney having charge of
the action or special proceeding: and the indorsement of the
allowance thereof must state that it was issued on such an appli-
cation.

[Code § 1993. See Board’s proposed Civil Rights Law, § 126, identical.]

§ 1249. Contents of petition. The petition must be veri-
fied by the oath of the petitioner to the effect that he believes
it to be true, and must state, in substance:
Civit Practice Act 599

1. That the person in whose behalf the writ is applied for is
imprisoned or restrained in his liberty; the place where, unless
it is unknown, and the officer or person by whom he is so impris-
oned or restrained, naming both parties if their names are known,
and describing either party whose name is unknown.

2. That he has not been committed and is not detained by vir-
tue of any judgment, decree, final order or process, specified in
section [2016] twelve hundred and forty-six of this act.

8. The cause or pretence of the imprisonment or restraint,
according to the best knowledge and belief of the petitioner.

4. If the imprisonment or restraint is by virtue of a mandate,
a copy thereof must be annexed to the petition, unless the peti-
tioner avers, either, that by reason of the removal or concealment
of the prisoner before the appHeation a demand of such a copy
could not be made, or that such a demand was made, and the legal
fees for the copy were tendered to the officer or other person
having the prisoner in his custody, and that the copy was refused.

5. If the imprisonment is alleged to be illegal, the petition must
state in what the alleged illegality consists.

6. It must specify whether the petitioner applies for the writ of
habeas corpus or for the writ of certiorari.

[Code § 2019. See Board’s proposed Civil Rights Law, § 127, identical.]

§ 1250. Grant of writ. A court or a judge authorized to
grant either writ must grant it without delay whenever a petition
therefor is presented, as prescribed in the foregoing sections of
this article, unless it appears from the petition itself or the
documents annexed thereto that the petitioner is prohibited
by law from prosecuting the writ. For a violation of this section,
a judge, or, if the application was made to a court, each member
of the court who assents to the violation, forfeits to the prisoner
one thousand dollars, to be recovered by an action in his name or
in the name of the petitioner to his use. A writ of habeas corpus
may be issued [and served] under this section on the first day
of the week, commonly called Sunday[; but it cannot he made
returnable on that day].

[All except last sentence is Code § 2020. See Board’s proposed Civil Rights

Law, § 128, identical. Last sentence is from Code, § 2015. Remainder of
section and bracketed matter covered elsewhere. ]
600 Rerorr or Joint LucisuativeE CoMMITTEE
‘e

§ 1251. Issuance of writ. [[A state] 1. The writ must
be issued under the seal of the court by which it is awarded.
Where it is allowed by a judge out of court and is returnable
before a court of record, it must be issued under the seal of the
court before which it is returnable. Where it is returnable before
a judge out of court, or before a body or tribunal other than a
court of record, it must be issued under the seal of the supreme
court. Where the seal of the supreme court is to be used, as pre-
scribed in this section, it may be the seal of the county wherein
the writ is awarded or wherein it is returnable.

[A state] 2. The writ must be issued in behalf of the people
of the state; but where it is awarded upon the application of a
private person, it must show that it was issued upon the relation
of that person.

3. The officer or other person against whom the writ is issued
shall be styled the defendant therein.

4. The presiding judge of a court by which [a state] the writ
is awarded, or the judge who allows such a writ out of court, as
the case may be, must sign an allowance thereof indorsed there-
upon, stating the date of the allowance.

[Subd. 1 is Code § 1992; subds. 2 and 3 are Code § 1994; subd. 4 is Code
§ 1996. See Board’s proposed Civil Rights Law, § 129, identical. These
writs formerly related to state writs generally. They are retained here as
applying to writs of habeas corpus and certiorari to inquire.]

§ 1252. Form of writ of habeas corpus. The writ of habeas
corpus, issued as prescribed in this article, must be substantially
in the following form, the blanks being properly filled up:

“The People of the State of New York,
To the Sheriff of,” ete. (or “to A. B.”)

“We command vou, that you have the body of C. D., by you
imprisoned and detained, as it is said, together with the time and
cause of such’ imprisonment and detention, by whatsoever name
the said C. D. is called or charged, before —————-,” (‘the
supreme court, at a special term or term of the appellate division
thereof, to be held,” or “E. F., justice of the supreme court,”
or otherwise, as the case may he) “at ————— on n
[or “immediately after the receipt of this writ’ “to do and
receive what shall then and there he considered, concerning the
said C.D. And have you then there this writ.

“ Witness, ——_—_——,, one of the justices” (or “ judges ”’)
Civin Practice Act 601

“of the said court,” (or “county judge,’ or otherwise, as
the case may be,) “‘ the —-——— day of —-_—, in the year
[eighteen] nineteen hundred and —————.”

[Code § 2021. See Board’s proposed Civil Rights Law, § 130, identical.]

§ 1253. Form of writ of certiorari. The writ of certiorari,
issued as prescribed in this article, must be substantially in the
following form, the blanks being properly filled up:

“The People of the State of New York,
To the Sheriff of,” ete. (or “to A. B.”)

“We command you, that you certify fully and at large,
to ——_——,” (“‘ the supreme court, at a special term or term oe
the. appellate division thereof, to be held,” or “E. F., justice
cf the supreme court,” or otherwise, as the case may be,)
“ at ————, on ————_,.” [or “immediately after the receipt
of this writ,”"] “the day and cause of the imprisonment of C. D.,
by you detained, as it is said, by whatsoever name the said C. D.
is called or charged. And have you then there this writ.”

“ Witness, —————,, one of the justices,” (or “ judges”) “ of
the said court,” (or “ county judge,” or otherwise, as the case may
be,) “ the —-——— day of ——__—_, in the year [eighteen]
nineteen hundred and —————.”

[Code § 2022. See Board’s. proposed Civil Rights Law, § 131, identical.]

§ 1254. When returnable. [Except where special pro-
vision is otherwise made in this act, a state] 1. Hither writ may
be made returnable forthwith or on a future day certain as the
case requires.

2. If application for either writ is made to the supreme court,
or to a justice thereof, in a county other than that where the per-
son is imprisoned or confined, the writ may be made returnable,
in its or his discretion, before any judge authorized to grant it,
in the county of the imprisonment or confinement.

8. A writ of habeas corpus [may be issued and served on the
first day of the week, commonly called Sunday; but it] cannot
be made returnable on [that day] Sunday.

[Subd. 1 is Code § 1998; subd. 2 is Code § 2023, and subd. 3 is last sentence
of Code § 2015. Remainder of said section and bracketed matter is covered
elsewhere. See Board’s proposed Civil Rights Law, § 132, which contains
Code §§ 1998 and’ 2023.]
602 Report or Joint LeaistativE ComMMItTEs

§ 1255. Defects in form. The writ of habeas corpus or
the writ of certiorari shall not be disobeyed for any defect of
form, and particularly in either of the following cases:

1. If the person having the custody of the prisoner is desig-
nated either by his name of office, if he has one, or by his own
name; or, if both names are unknown or uncertain, by an assumed
appellation. Any person upon whom the writ is served is deemed
to be the person to whom it is directed, although it is directed to
him by a wrong name or description or to another person.

2. If the person directed to be produced is designated by name,
or otherwise described in any way so as to be identified as the
person intended.

[Code § 2024. See Board’s proposed Civil Rights Law, § 134, identical.]

§ 1256. Issuance without application. Where a _ justice
cf the supreme court, in court or out of court, has evidence, in a
judicial proceeding taken before him, that any person is illegally
imprisoned or restrained in his liberty within the state; or where
any other judge authorized by this article to grant the writs has
evidence, in like manner, that any person is thus imprisoned or
restrained within the county where the judge resides; he must
issue a writ of habeas corpus or a writ of certiorari for the relief
of that person, although no application therefor has heen made.

[Code § 2025. See Board’s proposed Civil Rights Law, § 134, identical.]

§ 1257. Service of habeas corpus or certiorari. A writ of
habeas corpus or of certiorari, issued as prescribed in this article
[second or article third of this title], may be served by deliver-
ing it to the person to whom it is directed. If he cannot be
found with due diligence, it may be served by leaving it at
the jail or other place in which the prisoner is confined, with anv
under officer, or other person of proper age, having charge, for
the time, of the prisoner, and paying or tendering to him the fees
or charges for bringing up the prisoner. If the person upon
whom the writ ought to be served keeps himself concealed or
refuses admittance to the person attempting to serve it, it mav be
served by affixing it in a conspicuous place on the outside either
of his dwelling-house or of the place where the prisoner is con-
fined. In that case, the service. is complete without tendering the
fees or charges for bringing up the prisoner. A writ of habeas
corpus may be [issued and] served on the first day of the week,
Crvit Practicz Act 603

commonly called Sunday[; but it cannot be made returnable on
that day].

[Code § 2003. See Board’s proposed Civil Rights Law, § 135, identical.
“Article second” of title second of chapter sixteen of the Code referred to in
this section related to “habeas corpus to testify” and “ article third” related
te “habeas corpus and certiorari to inquire.” The writ of habeas corpus to
testify is abolished and therefore the reference can be omitted as indicated.
Last sentence is from Code § 2015. Remainder of said section and bracketed
matter is covered elsewhere. The Committee omits Code § 1999 as
unnecessary.

The provision is also omitted by the Board. See Board’s note 1450 and also

Board’s proposed Civil Rights Law, §.135. Covered in Code § 2003 as to writ
of habeas corpus and certiorari to inquire.]

§ 1258. Service of habeas corpus and fees. 7, A writ of
habeas corpus can be served by any person of the age of twenty-
one years and upwards.

2. Where the prisoner is in custody of a sheriff, coroner, con-
stable or marshal, the service is not complete unless the person
serving the writ tenders to the officer the fees allowed by law for
bringing up the prisoner and delivers to him an undertaking,
with at least one surety, in a sum specified therein, to the effect
that the surety will pay the charges of carrying back the prisoner
if he shall be remanded, and that the prisoner will not escape by
the way, either in going to, remaining at, or returning from the
place to which he is to be taken. The sum so specified must be
at least twice the sum for which the prisoner is detained, if he
is detained for a specific sum of money; if not, it must be one
‘housand dollars.

8. A court or a judge, in its or his diserction, upon allowing a
writ of habeas corpus directed to any person other than a sheriff,
coroner, constable or marshal, mayf, in its or his discretion, ]
require the applicant, in order to render the service thereof com-
plete, to pay the charges of bringing up the prisoner. In that
case, the amount of the charges, not to exceed the fees allowed by
law to a sheriff for a similar service, must be specified in the
certificate allowing the writ.

[The last two sections are] 4. This section is not applicable to
a case where the writ is allowed upon the application of the attor-
ney-general or a district attorney.

[Subds. 1 and 2 are Code § 2000; subd. 3 is Code § 2001, and subd. 4 is
Code § 2002. See Board’s Proposed Civil Rights Law, § 136, practically
identical.]
604 Rerorr or Jornr Leaistative ComMMITTEE

§ 1259. Obedience to writ and return. 17. A_ sheriff,
coroner, constable or marshal, wpon whom complete service of a
writ of habeas corpus is made, as prescribed in this article, must
obey and make return to the writ according to the exigency
thereof, whether it is directed to him or not. Any other person,
upon whom such a writ is served, having the custody of the
individual for whose benefit it was issued, must obey and execute
it according to the command thereof without requiring any bond
or the payment of any charges, except such as are specified in the
certificate allowing the writ.

2. A person upon whom a writ of certiorari, issued as pre
scribed in this [title] article, is served, [must, in like manner, ]
upon payment or tender of the fees allowed by law for making a
return to the writ, and for copying the warrant, or other process
or proceeding, to be annexed thereto, must obey and return the
writ m like manner, according to the exigency thereof.

8. Where a writ of habeas corpus is returnable on a day cer-
tain, the return must be made at the time and place specified
therein. Where such a writ is returnable forthwith, at a place
within twenty miles of the place of service, the return must be
made and the prisoner must be produced within twenty-four
hours after service; and the like time must be allowed for each
additional twenty miles.

[Subd. 1 is Code § 2004; subd. 2 is Code § 2005; and subd. 3 is Code
§ 2006. See Board’s proposed Civil Rights Law, § 137, identical, except for
subdivisions. ]

§ 1260. Contents of return. The person upon whom either
writ has been duly served must state plainly and unequivocally in
his return:

1. Whether or not, at the time when the writ was served or at
any time theretofore or thereafter, he had in his custody or under
his power or restraint the person for whose relief the writ was
issued.

2. If he so had that person, when the writ was served, and still
has him, the authority and true cause of the imprisonment or
restraint, setting it forth at length. If the prisoner is detained
by virtue of a mandate or other written authority, a copy thereof
must be annexed to the return, and, upon the return of the writ,
the original must be produced and exhibited to the court or judge.

8. If he so had the prisoner at any time, but has transferred
Crviz Practice Act 605

the custody or restraint of him to another, the return must con-
form to the return required by the second subdivision of this sec-
tion, except that the substance of the mandate or other written
authority may be given if the original is no longer in his hands;
and that the return must state particularly to whom, at what time,
for what cause and by what authority the transfer was made.

The return must be signed by the person making it, and, unless
he is a sworn public officer and makes his return in his official
capacity, it must be verified by his oath.

[Code § 2026. See Board’s proposed Civil Rights Law, § 138, identical.]

§ 1261. Production of prisoner. The person upon whom a
writ of habeas corpus has been duly served must also bring up
the body of the prisoner in his custody, according to the command
of the writ, unless he states in his return that the prisoner is so

sick or infirm that the production of him would endanger his life
or his health.

[Code § 2027. See Board’s proposed Civil Rights Law, § 139, identical.]

§ 1262. Appearance of parties. The parties to a special pro-
ceeding instituted by [state] etther writ may appear by attor-
ney with like effect as in an action brought in the supreme
court[,, but a return to such a writ must be made under the hand
cf the defendant, except in a case where it is otherwise specially
prescribed by law, or where the court or judge, for good cause
shown by affidavit, otherwise directs]. Where the attorney-gen-
eral or the district attorney does not appear for the people, the
attorney for the relator is deemed also the attorney for the people.

[Code 8 1995. The bracketed portion is omitted because already covered

as to habeas corpus and certiorari to inquire. See Code §§ 2024, 2026. See
Board’s proposed Civil Rights Law, § 140, containing entire section.]

§ 1263. Disobedience of writ. Where a person who has been
duly served with either writ refuses or neglects, without sufficient
cause shown by him, fully to obey it, as prescribed in the last two
sections, the court or judge before which or whom it is made
returnable, upon proof of the due service thereof, must [forth-
with] issue forthwith a warrant of attachment, directed generally
to the sheriff of any county where the delinquent may be found, or,
if the delinquent is a sheriff, to any coroner of his county, or to a
particular person specially appointed to execute the warrant and
606 Reporr or Joint LeaistativE CoMMITTEE

designated therein; commanding such officer or other person forth-
with to apprehend the delinquent and bring him before the court
or judge. Upon the delinquent being so brought up, an order
must be made committing him to close custody in the jail of the
county in which the court or judge is, or, if he is a sheriff, in the
jail of a county other than his own, designated in the order; and,
in either case, without being allowed the liberties of the jail. The
order must direct that he stand committed until he makes return
to the writ and complies with any order which may be made by
the court or judge in relation to the person for whose relief the
writ was issued.

[Code § 2028. See Board’s proposed Civil Rights Law, § 141, identical.]

§ 1264. Precept to bring up prisoner. The court or judge
[may also], in its or his discretion, at the time when the warrant
or attachment is issued, or afterwards, also may issue a precept to
the sheriff, coroner or other person, to whom the warrant is
directed, commanding him forthwith to bring before the court or
judge the person for whose benefit the writ was granted, who must
thereafter remain in the custody of the officer or person executing
the precept until discharged, bailed or remanded, as the court or
judge directs.

[Code § 2029. See Board’s proposed Civil Rights Law, § 142, identical.]

§ 1265. Assistance in execution of writ. The sheriff, cor-
oner or other person, to whom a warrant of attachment or pre
cept is directed, as prescribed in either of the last two sections,
may call to his aid in the execution thereof[, call to his aid] the
power of the county, as the sheriff may do in the execution of a
mandate issued from a court of record.

[Code § 2030. See Board’s proposed Civil Rights Law, § 143, identical.]

§ 1266. Proceedings on return of habeas corpus. The
court or judge before which or whom the prisoner is brought by
virtue of a writ of habeas corpus, issued as prescribed in this
article, must evamiae, immediately after the return of the writ,
[examine] into the facts alleged in the return and into the cause
of the imprisonment or restraint of the prisoner; and must make a
final order to discharge him therefrom if no lawful cause for the
imprisonment or restraint or for the continuance thereof, is
Civiz Practice Acr 607

shown; whether the same was upon a commitment for an actual
or supposed criminal matter or for some other cause.

[Code § 2031. See Board’s proposed Civil Rights Law, § 144, identical. ]

§ 1267. Remanding prisoner. The court or judge must
forthwith make a final order to remand the prisoner if it appears
that he is detained in custody for either of the following causes,
and that the time for which he may legally be so detained has not
expired:

1. By virtue of a mandate issued by a court or a judge of
the United States in a case where such courts or judges have
exclusive jurisdiction.

2. By virtue of the final judgment or decree of a competent
tribunal, of civil or criminal jurisdiction; or the final order of
such a tribunal made in a special proceeding instituted for any
cause, except to punish him for a contempt; or by virtue of an
execution or other process issued upon such a judgment, decree
or final order.

3. For a criminal contempt, defined in section seven hundred
and fifty of the judiciary law, and specially and plainly charged
in a commitment made by a court, officer or body having authority
to commit for the contempt so charged.

[Code § 2032. See Board’s proposed Civil Rights Law, § 145, identical.)

§ 1268. Discharge of prisoner in civil cases. If it appears
upon the return that the prisoner is in custody by virtue of a
mandate in a civil cause, he can be discharged only in one of the
following cases:

1. Where the jurisdiction of the court which, or of the officer
who, issued the mandate, has been exceeded, either as to matter,
place, sum or person.

2. Where, although the original imprisonment was lawful, yet
by some act, omission or event, which has taken place afterwards,
the prisoner has become entitled to be discharged.

3. Where the mandate is defective in a matter of substance
required by law, rendering it void.

4. Where the mandate, although in proper form, was issued
in a case not allowed by law.

5. Where the person having the custody of the prisoner under
the mandate is not the person empowered by law to detain him.
608 Report or Joint Lea@istatrive CoMMITTEE

6. Where the mandate is not authorized by a judgment, decree
or order of a court, or by a provision of law.

[Code § 2033. See Board’s proposed Civil Rights Law, § 146, containing the
above section in identical language.]

§ 1269. Inquiry by court upon return. But a court or
judge, upon the return of a writ issued as prescribed in this arti-
cle, shall not inquire into the legality or justice of any mandate,
judgment, decree or final order, specified in the last section but
one, except as therein stated.

[Code § 2034. See Board’s proposed Civil Rights Law, § 146, containing the
above section in identical language.]

§ 1270. Proceedings on irregular commitment. If it ap-
pears that the prisoner has been legally committed for a crim-
inal offence, or if he appears by the testimony offered with the
return, or upon the hearing thereof, to be guilty of such an
offence, although the commitment is irregular, the court or judge
before which or whom he is brought must [forthwith] make a final
order forthwith to discharge him upon his giving bail, if the case 1s
bailable, or, if it is not bailable, to remand him. Where bail is
given pursuant to an order made as prescribed in this section, the
proceedings are the same as upon the return to a writ of certiorari
where it appears that the prisoner is entitled to be bailed.

[Code § 2035.’ ‘See Board’s proposed Civil Rights Law, § 147, identical]

§ 1271. Commitment to another officer. Where a prisoner
is not entitled to his discharge and is not bailed, he must be
remanded to the custody, or placed under the restraint, from which
he was taken, unless the person, in whose custody or under whose
restraint he was, is not lawfully entitled thereto; in which case,
the order remanding him must commit him to the eustody of the
officer or person so entitled.

[Code § 2036. See Board’s proposed Civil Rights Law, § 148, identical.]

§ 1272. Custody of prisoner pending the proceedings.
Pending the proceedings, and before a final order is made upon
the return, the court or judge before which or whom the prisoner
is brought may either commit him to the custody of the sheriff
of the county wherein the proceedings are pending or place him
in such care or custody as his age and other circumstances require.

[Code § 2037. See Board’s proposed Civil Rights Law, § 149, identical.]
Civin Practicr Act 609

§ 1273. Notice before order for discharge made. Where
it appears from the return to either writ that the prisoner is
in custody by virtue of a mandate, an order for his discharge
shall not be made until notice of the time when, and the place
where, the writ is returnable, or to which the hearing has been
adjourned, as the case may be, has been either personally served,
eight days previously, or given in such other manner and for
such previous length of time as the court or judge prescribes, as
follows:

1. Where the mandate was issued or made in a civil action or
special proceeding to the person who has an interest in continu-
ing the imprisonment or restraint, or his attorney.

2. In every other case, to the district attorney of the county
within which the prisoner was detained at the time when the
writ was served.

For the purpose of an appeal, the person to whom notice is
given, as prescribed in the first subdivision of this section, becomes
a party to the special proceeding.

[Code § 2038. See Board’s proposed Civil Rights Law, § 150, identical.]

§ 1274. Answer to return and proceedings thereupon. <A
prisoner, produced upon the return of a writ of habeas-corpus
[may], under oath may deny any material allegation of the return
or make any allegation of fact showing either that his imprison-
ment or detention is unlawful or that he is entitled to his dis-
charge. Thereupon the court or judge must proceed in a sum-
mary way to hear the evidence produced in support of or against
the imprisonment or detention and to dispose of the prisoner as
the justice of the case requires.

[Code § 2039. See Board’s proposed Civil Rights Law, § 151, identical.]

§ 1275. Proceedings upon sickness or infirmity of prisoner.
Where the return to a writ of habeas corpus states that the
prisoner is so sick or infirm that the production of him would
endanger his life or health, and the return is otherwise sufficient,
the court or judge, if satisfied of the truth of that statement,
must decide upon the return and dispose of the matter as if a
writ of certiorari had been issued.

[Code § 2040. See Board’s proposed Civil Rights Law, § 152, identical.)

20
610 Rervorr or Jornr Leaistative ComMMittTEE

§ 1276. Certiorari instead of habeas corpus. Where an
application is made for a writ of habeas corpus, as prescribed in
this article, and it appears to the court or judge upon the petition
and the documents annexcd thereto that the cause or offence for
which the party is imprisoned or detained is not bailable, a writ
of certiorari may be granted instead of a writ of habeas corpus,
as if the application had been made for the former writ. Upon
the return to such a writ of certiorari, the court or judge before
which or whom it is returnable must proceed as upon a return
to a writ of habeas corpus and must hear the proofs of the
parties in support of and against the return.

[Code §§ 2041, 2042. See Board’s proposed Civil Rights Law, § 153,
identical.]

§ 1277. Final discharge of prisoner. Jf it appears that
the prisoner is unlawfully imprisoned or restrained in his lib-
erty, the court or judge must make a final order discharging
him forthwith. If it appears that he is lawfully imprisoned or
detained, and is not entitled to be bailed, the court or judge must
make a final order dismissing the proceedings. A final order
made in a proceeding brought on behalf of a person imprisoned
or detained in any of the state hospitals mentioned in section
forty of the insanity law, or in the Matteawan State Hospital or
in the Dannemora hospital for insane convicts, shall be conclu-
sive evidence, upon a hearing of any subsequent proceeding
involving the detention ef the same person, of all the facts deter-
mined by the court, unless such final order shall otherwise specify.

[Code § 2043. See Board’s proposed Civil Rights Law, § 154, identical.]

§ 1278. Habeas corpus after certiorari. Notwithstanding
a writ of certiorari has been issued or returned, as prescribed in
this article, the court or judge before which or whom it is return-
able may issue a writ of habeas corpus, which [is], in all respects,
is subject to the foregoing provisions of this article relating to the
latter writ. If the court or judge refuses a writ of certiorari,
or upon the return thereof refuses to discharge the prisoner, the
latter may claim and is entitled to the writ of habeas corpus, as
prescribed in this article.

[Code § 2044. See Board’s proposed Civil Rights Law, § 155, identical.)
Civin Practice Act 611

§ 1279. Bail on certiorari. If, upon the return to a writ of
certiorari, issued as prescribed in this article, it appears that
the person imprisoned or detained is entitled to be bailed, the
court or judge must make a final order fixing the sum in which he
is to be admitted to bail, specifying the court and the term thereof
at which he is required to appear, and directing his discharge upon
bail being given accordingly, as required by law. If sufficient
bail is immediately offered, the court or judge must take it; other-
wise, bail may be given afterwards, as prescribed in [the next]
this section. ,

Upon the production of the order, or, if it was made by a
court, of a certified copy thereof, to a justice of the supreme court,
or to the county judge or special county judge of the county
where the prisoner is detained, the judge must take the recogni-
zance of the prisoner, with two sureties, in the sum so fixed, con-
ditioned for the appearance of the prisoner, as prescribed in the
order. Each person offering himself as a surety must show,
by his oath, to the satisfaction of the judge, that he is a house-
holder in the county and worth twice the sum in which he is
required to be bound, over and above all demands against him.
Tt is not necessary that the prisoner should appear in person
before the judge to acknowledge the recognizance; but it may be
acknowledged by the prisoner, and certified, in like manner as a
deed to be recorded in the county.

[Code §§ 2045, 2046. See Board’s proposed Civil Rights Law, § 156,
identical.]

§ 1280. Discharge of prisoner bailed. The judge must im-
mediately file the recognizance with the clerk of the court
before which the prisoner is bound to appear. He must also
make a certificate upon the order or the certified copy thereof to
the effect that it has been complied with. Upon production of
the certificate, the prisoner is entitled to his discharge from
imprisonment for any cause stated in the return to the certiorari.

[Code § 2047. See Board’s proposed Civil Rights Law, § 157, identical.]

§ 1281. Service of final order for discharge. [The writ of
discharge is abolished.J A final order to discharge a pris-
oner, made as prescribed in this article, may be served in like
manner as an injunction order, and when so served, it may be
612 Rerporr or Jom Lrarsiattve ComMITtTrer

enforced in the same manner as a final judgment in a civil action,
except where special provision for its enforcement is otherwise
made in this act. Where such an order directs a discharge upon
giving bail, the service thereof is not complete until service of the
certificate, or other proof prescribed by law, showing that bail has
been given as required thereby.

[Code § 2048. First sentence omitted as unnecessary. See Board’s pro-
posed Civil Rights Law, § 158, identical.]

§ 1282. Enforcement of order for discharge. Obedience
to a final order to discharge a prisoner, made as prescribed in this
article, may be enforced by the court which, or the judge who,
made the same, by attachment, as for a neglect to make a return
to a writ of habeas corpus, and with like effect. A person guilty
of such disobedience forfeits to the prisoner aggrieved one thou-
sand two hundred and fifty dollars, in addition to the damages
which the latter sustains.

[Code § 2049. See Board’s proposed Civil Rights Law, § 159, identical.]

§ 1283. Final order; application of provisions relating
to actions. The final determination of the rights of the parties
[to a special proceeding instituted by state writ,] is styled
a final order. The provisions of this act relating to amendments,
motions and intermediate orders, in an action, are applicable to
similar acts in such a special proceeding, except where special
provision is otherwise made therein, or where the proceeding is
repugnant to the object of the state writ or the mode of pro-
cedure thereunder. .

[Code § 1997. Originally applicable to all state writs. Omitted by Board.]

§ 1284. Reimprisonment of prisoner after discharge. A
prisoner who has been discharged by a final order made upon
a writ of habeas corpus or certiorari, issued as prescribed in this
article, shall not be again imprisoned, restrained, or kept in cus-
tody, for the same cause. But it is not deemed to be the same
cause, in either of the following cases:

1. Where he has been discharged from a commitment on a
criminal charge; and is afterwards committed for the same
offence, by the lawful order or other mandate of the court
wherein he was hound by recognizance to appear or in which he
has been indicted or convicted for the same offence.
Civin Pracrice Acr 6138

2. Where he has been discharged in a criminal cause for defect
of proof or for a materia! defect in the commitment; and is after-
wards arrested on sufticient proof, and committed by a lawful
mandate for the same offence.

3. Where he has been discharged, in a civil action or special
proceeding, for an illegality in the judgment, final order or other
mandate, as prescribed in this article; and is afterwards impris-
oned by virtue of a lawful judgment, final order or other man-
date, for the same cause of action.

4. Where he has been discharged, in a civil action or special
proceeding, from imprisonment by virtue of an order of arrest;
and is afterwards taken in execution or other final process, in
the same action or special proceeding, or arrested in another action
or special proceeding, after the first was discontinued.

If a court or judge, or any other person, in the execution of
a judgement, order or other mandate, or otherwise, knowingly
violates, causes to be violated, or assists in the violation off[, the
last] thzs section, he, or if the act or omission was that of a court,
each member of the court assenting thereto, forfeits to the pris-
oner aggrieved one thousand two hundred and fifty dollars. He
is also guilty of a misdemeanor, and, upon conviction thereof,
shall be punished by fine not exceeding one thousand dollars, or
by imprisonment not exceeding six months, or by both, in the
discretion of the court.

[Code §§ 2050, 2051. See Board’s proposed Civil Rights Law, § 160,
identical.]

§ 1285. Concealing prisoner to avoid writ. Any one
having in his custody, or under his power, a person entitled to a
writ of habeas corpus or a writ of certiorari, as prescribed in this
article, or a person for whose relief a writ of habeas corpus or a
writ of certiorari has been duly issued, as prescribed in this
article, who, with intent to elude the service of the writ or to
avoid the effect thereof, transfers the prisoner to the custody, or
places him under the power or control of another, or conceals hin,
or changes the place of his confinement, is guilty of a misde-
meanor; and, upon conviction thereof, shall be punished as
specified in the last section.

A person who knowingly assists in the violation of [the last]
this section is guilty of a misdemeanor, and, upon conviction
614 Report or Joint LegisuativE CoMMITTEE

thereof, shall be punished as specified in the last section [but
one].

[Code §§ 2052, 2053. See Board’s proposed Civil Rights Law, § 161,
identical.]

§ 1286. Warrant to bring up prisoner before writ issued.
Where it appears, by proof satisfactory to a court or judge
authorized to grant either writ, that a person is held in
unlawful confinement or custody, and that there is a good reason
to believe that he will be carried out of the state, or suffer irre
parable injury, before he can be relieved by a writ of habeas
corpus or a writ of certiorari, the court or judge must issue a
warrant, reciting the facts, directed to a particular sheriff, or
generally to any sheriff or constable, or to a person specially
designated therein; and commanding him to take, and forthwith
to bring before the court or judge, the prisoner, to be dealt with
according to law. If the warrant is issued by a court, it must be
under the seal thereof; if by a judge, it must be under his hand.

Where the proof specified in [the last] this section is also
sufficient to justify an arrest of the person having the prisoner in
his custody, as for a criminal offence, committed in taking or
detaining him, the warrant must also contain a direction to arrest
that person for the offence.

[Code §§ 2054, 2055. See Board’s proposed Civil Rights Law, § 162,
identical.]

§ 1287. Execution of warrant granted before writ. The
officer or other person to whom the warrant is directed and
delivered must execute it by bringing the prisoner therein named,
and also, if so commanded in the warrant, the person who detains
him, before the court or judge issuing it; and thereupon the per-
son detaining the prisoner must make a return, in like manner,
and the like proceedings must be taken, as if a writ of habeas
corpus had been issued in the first instance.

[Code § 2056. See Board’s proposed Civil Rights Law, § 163, identical.]
Pp g

§ 1288. Proceedings to punish offender. If. the person
having the prisoner in his custody is brought before the court or
judge as for a criminal offence, he is entitled to be examined, and
must be committed, bailed or discharged hy the court or judge
as in any criminal case of the same nature.

[Code § 2057. See Board’s proposed Civil Rights Law, § 164, identical.]
Civit Practircr Act 615

§ 1289. Appeals in cases under this article. An appeal
may be taken from an order refusing to grant a writ of habeas
corpus or a writ of certiorari, as prescribed in this article, or from
a final order, made upon the return of such a writ, to discharge or
remand a prisoner or to dismiss the proceedings. Where the
final order is made to discharge a prisoner upon his giving bail,
an appeal therefrom may be taken before bail is given; but where
the appeal is taken by the people, the discharge of the prisoner
upon bail shall not be stayed thereby. An appeal does not lie
from an order of the court or judge before which or whom the
writ is made returnable, except as prescribed in this section.

[Code § 2058. See Board’s proposed Civil Rights Law, § 165, identical.]

§ 1290. Appeal by people. An appeal from a final order
discharging a prisoner committed upon a criminal accusation, or
from the affirmance of such an order, may be taken in the name
of the people by the attorney-general or the district attorney.

[Code § 2059. See Board’s proposed Civil Rights Law, § 166, identical.]

§ 1291. Bail upon appeal. Where a prisoner who stands
charged, upon a criminal accusation, with a bailable offence, has
perfected or intends to take an appeal from a final order dis-
missing the proceedings remanding him, or otherwise refusing to
discharge him, made as prescribed in this article, the court or
judge, upon his application, either before or after the final order,
[must,] and upon such notice to the district attorney as the court
or judge thinks proper, must make an order fixing the sum in
which the applicant shall be admitted to bail pending the appeal:
and thereupon, when his appeal is perfected, he must be admitted
to bail accordingly.

[Code § 2060. See Board’s proposed Civil Rights Law, § 167, identical.]

§ 1292. Form of bail on appeal. The recognizance for that
purpose must be conditioned that the prisoner will appear at
a term of the appellate division of the supreme court to he held at
a time and place designated in the order and abide by and per-
form the judgment or order of the appellate court. It must be
taken and approved by a justice of the supreme court, or by the
court or judge from whose order the appeal is taken, or by the
county judge of the county in which the order was made. In all
other respects, the proceedings are the same as prescribed in this
616 Rerorr or Joinry Leaistarive ComMMrrrEen

article, where it appears, upon the return of a writ of certiorari,
that the prisoner is entitled to be admitted to hail.

[Code § 2061. See Board’s proposed Civil Rights Law, § 168, identical.]

§ 1293. Appeal to court of appeals. Where a prisoner
who stands charged with an offence, specified in the last section,
has perfected an appeal to the court of appeals from a final order
of the supreme court affirming an order refusing his discharge, or
reversing an order granting his discharge, the court from whose
order the appeal is taken, or a judge thereof, must[[, upon his
application, ] admit him to bail upon his application, as prescribed
in the last section; except that the recognizance must be con-
ditioned to appear, at a term of the appellate division of the
supreme court from which the appeal is taken, to abide by and
perform its judgment or order made after the determination of
the appeal.

[Code § 2062. See Board’s proposed Civil Rights Law, § 169, identical.]

§ 1294. Custody of prisoner pending bail. Where the sum
in which a prisoner shall be admitted to bail has been fixed,
as prescribed in either of the last two sections, he must remain in
the custody of the sheriff of the county in which he then is, until
he is admitted to bail, as therein prescribed; or, if he does not
give the requisite bail, until the time to appeal has expired or the
appeal is disposed of, and the further direction of the court, made
thereupon.

[Code § 2063. See Board’s proposed Civil Rights Law, § 170, identical.]

§ 1295. Bail valid for adjourned terms. here no order
or other direction of the court, relating to the disposition of the
prisoner is made at the term specified in a recognizance, given
as prescribed in section [2061 or section 2062] twelve hundred
and ninety-two or twelve hundred and ninety-three of this act, the
matter is deemed adjourned without an order to that effect to
the next term of the appellate division of the supreme court to
be held in the same department; and thereafter to each successive
term until such an order or direction is made. The prisoner is
hound to attend at each successive term of the appellate division;
and the recognizance is valid for his attendance accordingly with-
out any notice or other formal proceedings.

[Code § 2064. See Board’s proposed Civil Rights Law, § 171, identical.]
Crvin Practice Act 617

§ 1296. Delivery of copy of mandate or other authority. .
An officer or other person who detains any one by virtue of a man-
date or other written authority must deliver, upon reasonable
demand and tender of his fees, [deliver] a copy thereof to any
person who applies therefor, for the purpose of procuring a writ
of habeas corpus or a writ of certiorari in behalf of the prisoner.
If he knowingly refuses so to do, he forfeits two hundred dollars
to the prisoner. .

[Code § 2065. See Board’s proposed Civil Rights Law, § 172, identical.]

§ 1297. Application of article to other writs of habeas
corpus. Except as otherwise expressly prescribed by statute, the
provisions of this article apply to and regulate the proceedings
upon every common law or statutory writ of habeas corpus, as far
as they are applicable; and the authority of a court or a judge to
grant such a writ, or to proceed thereupon, by statute or the com-
mon law, must be exercised in conformity to this article im any
case therein provided for.

[Code § 2066. Sce Board’s proposed Civil Rights Law, § 173, identical.

Code § 1991 omitted as unnecessary as all writs are abolished except writ
of habeas corpus and certiorari to inquire into the cause of detention of per-
son imprisoned.

It was necessary to give a common name to all the writs to avoid duplica-
tion of material in §§ 1991-2007. Omitted by Board as all writs, except
habeas corpus and certiorari to inquire, were abolished. See Board’s proposed
Civil Practice Law, § 4.

Code § 2007 omitted as unnecessary in view of abolishing of all writs,
except habeas corpus and certiorari to inquire. Also onritted by Board.]

ARTICLE 79
CERTIORARI PROCEEDING

Section 1298. Writ of certiorari abolished.

. 1299. Granting of certiorari order.

' 4300. Granting of certiorari in civil cases.
1301. Limitation upon granting certiorari orders.
1302. Court by which order granted.
1303. Limitation of time for order.
1304. Grant of order after removal of disability.
1305. Application for order.
618 Rerorr or Jowr Leaisuarive ComMirTEE

Section 1306. Notice of application.
1307. Against whom order directed.
1308. Entry of order.
1309. Service of order.
1810. Stay of proceedings.
1311. Time and place of return.
1312. How return made.
1313. Defect or omission in return.
1314. Subsequent proceedings as in action.
1315. Hearing upon return.
1316. Order and return after term of office.
1317. Bringing in third person.
1318. Additional affidavits or proofs in certain cases.
1819. Questions to be determined.
1820. Final order upon hearing.
1321. Award of restitution.
1322. Costs.
1323. Entry and enrollment of final order.
1324. Effect of filing of enrollment.
1325. Definition of terms “body or officer” and “ deter-
mination.”
1326. Application of article to certain special cases.
1327. Article applicable to civil cases only.

§ 1298. Writ of certiorari abolished. The writ of certiorari
is hereby abolished. The relief heretofore obtained by such
writ under the provisions of the code of civil procedure shall
nereafter be obtained by an order as provided in this article.
Wherever in any statute reference is made to a writ of certiorari,
such reference, when heretofore referring to a writ of certiorari as
regulated by article seven of title two of chapter sixteen of the
code of civil procedure, shall be deemed to refer to a certiorari
order as provided in this article, and the relief given by any such
statute by means of a writ shall be obtained by an order as pro-
vided in this article.

{[New. The Board abolished the writ of certiorari and provided that the
relief formerly had by such writ should be had by action commenced by a
summons to appear. See Board’s proposed Civil Rights Law, § 94, and Board’s
note 1406. The Commitice docs not adopt the Board’s reconrmendation, but
suggests that the writ of certiorari be abolished and for the securing of the
relief by an order. The last sentence of the above section is intended to adapt
any reference to certiorari writs in other statutes to the certiorari proceed-
ing as herein regulated, with the exception of the references contained in the
Crvit Practice Act 619

Tax Law, and in those cases the references are not to the writ as regulated
by the Code, but to the special form of relief there provided for. In the Tax
Law the certiorari proceeding might well be an action as it is a proceeding to
review de novo and not a review as is contemplated in the Code proceeding.]

§ 1299. Granting of certiorari order. The [writ of]
certiorari order regulated in this article[[, except the writ specified
in section 2124 of this act, is [issued] granted to review the
determination of a body or officer. It can be [issued] granted in
one of the following cases only:

1. Where the right to the [writ] order or to a writ of certiorari
is expressly conferred, or the [issue] granting thereof is
expressly authorized, by a statute.

2. Where a writ of certiorari might be issued at common law,
by a court of general jurisdiction, and the right to [the writ] a
certiorari, or the power of the court to [issue it] grant the same,
is not expressly taken away by a statute.

[Code § 2120, amended to conform to suggested change in practice, which
abolishes the writ and provides for an order. Under the section as amended
the writ of certiorari is retained where provided by any other statute or by
the common law and the right to the same has not been expressly taken
away by a statute. See the writ of certiorari to review the cause of detention,

which has been retained with habeas corpus. See also the writ provided for
by the Tax Law. See Board’s note 1406.]

§ 1300. Granting of certiorari in civil cases. A [writ of]
certiorari order cannot be [issued] granted to review a determina-
tion made, after this article takes effect, in a civil action or special
proceeding, by a court of record or a judge of a court of record.

[Code § 2121. Retained by Board as to its proposed action. See Board‘s
proposed Civil Rights Law, § 95, subd. 4.]

§ 1301. Limitation upon granting certiorari orders. Except
as otherwise expressly prescribed by [a] statute, a [writ of]
certiorari order cannot be [issued] granted in either of the fol-
lowing cases:

1. To review a determination which does not finally determine
the rights of the parties with respect to the matter to be reviewed.

2. Where the determination can be adequately reviewed by an
appeal to a court or to some other body or officer. ee

3. Where the body or officer making the determination 1s
expressly authorized, by statute to rehear the matter upon the
[relator’s] petitioner's application; unless the determination to
620 Rerort or Jor? Leaisnative CommitrrEer

be reviewed was made upon a rehearing, or a rehearing has been
demed, ov the time within which the [relator] petitioner can
procure a rehearing has elapsed.

[Code § 2122. Retained by Board as to its proposed action. See Board’s
proposed Civil Rights Law, § 95, subds. 1, 2, 3.]

§ 1302. Court by which order granted. A [writ of] cer-
tiorari order can be [issued] granted only out of the supreme
court, except in a case where another court is expressly authorized
by statuteto [issue] grant it.

[Code § 2123. Omitted by Board in view of change in practice.]

§ 1303. Limitation of time for order. Subject to the pro-
visions of the next section, a [writ of] certiorari order to review
a determination must be granted and served within four calendar
months after the determination to be reviewed becomes final and
binding, upon the [relator] petitioner or the person whom he
represents, either in law or in fact.

“ [Code § 2125. Retained by Board as to its suggested action. See Board’s
proposed Civil Rights Law, § 95, subd. 6.]

§ 1304. Grant of order after removal of disability. The
appellate division of the supreme court may grant the [writ]
order at any time within twenty months after the expiration of
the time limited in the last section, where the [relator] petitioner,
or the person whom he represents, was at the time when the
determination to be reviewed became final-and binding upon him,
either

1. Within the age of twenty-one years; or

2. Insane; or

3. Imprisoned on a criminal charge, or in exceution upon eon-
viction of a criminal offence, for a term less than for life.

[Code § 2126. Retained by Board as to its proposed action. See Board’s
proposed Civil Rights Law, § 95, subd. 6.]

§ 1305. Application for order. An application for the [writ]
order must be made by or in behalf of a person aggrieved
by the determination to be reviewed; must be founded upon [an
affidavit, or] a verified petition, which may be accompanied by
other written proof; and must show a proper case for the [issu-
ing] granting of the [writ] order. It can be granted only at a
Ciyin Practice Acr 621,

term of the appellate division of the supreme court or at a special
term, and the granting or refusal thereof is discretionary with
the court.

[Code § 2127.. Omitted by Board in view of change in practice. See Board’s
note 1406.]

§ 1306. Notice of application. [Until provision is made, in
the general rules of practice, for requiring, or dispensing with
notice of the application for the writ,] Unless otherwise provided
by rule, the court to which the application for the [writ] order
is made, [may,] in its disaretion, may require or dispense with
notice. <A notice, when [it] notice is necessary, must be served,
with copies of the papers upon which the application is to be
made, upon the body or officer whose determination is to be
reviewed, or upon such other person as the court directs, as pre-
scribed in this article for the service of a [writ of] certiorari
order. The service must be made at least eight days before the
application, unless the court by an order to show cause prescribes
a shorter time. Where notice is given, the person served may
produce affidavits or other written proofs, upon the merits, in
opposition to the application.

[Code § 2128. Omitted by Board. See Board’s note 1406.]

§ 1307. Against whom order directed. The [writ] order
must be directed [to] against the body or officer whose
determination is to be reviewed; or [to] against any other person
having the custody of the record or other papers to be certified; or
[to] against both, if necessary. Where it is brought to review
the determination of a board or body other than a court, if an
action would lie against the board or body in its associate or
official name, it must be directed [to] against the board or body
by that name; otherwise, it must be directed [to] against the
members thereof, by their names.

[Code § 2129. Omitted by Board. See Board’s note 1406.]

§ 1308. Entry of order. A certiorari order must be entered in
the office of the clerk of the county designated in the order as the
county where the same is returnable, according to the command
thereof.

[Mew. Provision made for the entry of the original order and later for
service of a certified copy. See Code §§ 2132 and 2134]
622 Reporr or Jornt LegisuativE ComMIrrEeE

§ 1309. Service of order. A [writ of} certiorari order must
be served as follows, except where different directions respecting
the mode of service thereof are given by the court granting it:

1. Where it is directed [to] against a person or persons by
name, or by his or their official title or titles, or [to] agaznst a
municipal corporation, [it] @ certified copy of the order must be
served upon each officer or other person[, to] against whom
it is so directed, or upon the corporation, in the same manner as a
summons in an action brought in the supreme court, except as
prescribed in the next two subdivisions of this section.

2. Where it is directed [to] against a court, or [to] the judges
of a court, having a clerk appointed pursuant to law, service upon
the court or the judges thereof may be made by filing @ certified
copy of the [writ] order with the clerk.

3. Where it is to be served upon any other board or body, or
upon the members thereof, it may be served in like manner as
prescribed [in section 2071 of this act,] for service upon a like
board or body of an alternative [writ of] mandamus order.

Where the certiorari order was granted without notice, copies of
the papers upon which the order was granted must be served with
the order.

[Code § 2180. The last sentence is new and is added because of the fact
that the writ which formerly contained the facts showing why the writ was

granted, is abolished and the copies mentioned are necessary for the informa-
tion of the defendants. Section omitted by Board. See Board’s note 1406.]

§ 1310. Stay of proeeedings. Except as prescribed in this
section, a [writ of] certiorari order does not stay the execution
of the determination to be reviewed or affect the power of the
body or officer[, to] against which or [to] whom it is [addressed]
granted. The court which grants the [writ] order, [may] in
its discretion and upon such terms as to the security or otherwise
as justice requires, [direct by a clause in the writ, or by a separate
order] may direct that the determination be stayed pending the
certiorari and until the further direction of the court. A bond,
undertaking or other security given to procure such a stay is
valid and effectual, according to its terms, in favor of a person
beneficially interested in upholding the determination to be
reviewed, who is admitted as a party to the special proceeding,
as prescribed in section [2187] thirtecn hundred and seventeen
of this act.

[Code § 2131. Omitted by Board as covered by its proposed rule 64.]
; Crvit Practice Act 623
§ 1311. Time and place of return. A [writ of] certiorari
order must be made returnable, within twenty days after
the service thereof, at the office of the clerk of the court. If it
was [issued from] granted by the supreme court, it must be made
returnable at the office of the clerk of the county designated
therein wherein the determination to be reviewed was made; and
if the county designated in the [writ] order is not the proper
county, the court, upon motion, may amend the [writ] order
accordingly. Thereupon all papers on file must be transferred to
the clerk of the county where the [writ] order is made return-
able by the amendment.

[Code § 2132. Omitted by Board. See Board’s note 1406.]

§ 1312. How return made. The clerk with whom a [writ
of] certiorari order is filed, and each person upon whom a [writ
of] certiorari order is served, as prescribed in section [2130]
thirteen hundred and nine of this act, must make and annex to
[the writ, or to] the copy [thereof] of the order filed with or
served upon him, a return, with a transcript annexed, and cer-
tified by him, of the record of proceedings, and a statement of the
other matter specified in and required by the [writ] order. The
return must be filed in the office where the [writ] order is return-
able, according to the command thereof.

[Code § 2134. Omitted by Board. See Board’s note 1406.]

§ 1313. Defect or omission in return. If a return is defect-
ive, the court may direct a further return. An omission to
make a return as required by a [writ of] certiorari order or by
an order for a further return may be punished as a contempt of
the court. But a judge or clerk shall not be thus punished, unless
the [relator] petitioner, before the time when the return is
required, pays him for his return the sum of two dollars, and, in
addition, ten cents for each folio of the copies of papers required
to be returned.

[Code § 2135. Omitted by Board. See Board’s note 1406.}

§ 1314. Subsequent proceedings as in action. After a [writ
of] certiorari order has heen [issued] granted, the time
to make a return [thereto]! to the petition and order may be
enlarged, or any other order may be made, or proceeding taken,
in the cause, in relation to any matter not provided for in this
624 Revorr or Joint Learstarive Commirrrn

article, as a similar proceeding may be taken in an action brought
in the same court and triable in the county where the [writ]
order is returnable.

[Code § 2133. Omitted by Board. See Board’s note 1406.]

§ 1315. Hearing upon return. The cause must be heard
at a term of the appellate division of the supreme court held
within the judicial department embracing the county where the
[writ] order was returnable. Either party may notice it for
hearing at any time after the return is complete. Except as pre-
scribed in the next section, it must be heard upon the [writ]
order and return and the papers upon which the [writ] order
was granted.

[Code § 2138. Omitted by Board as unnecessary, being sufficiently provided
for. See Board’s note 2252 to its proposed Judiciary Law, § 69-c.]

§ 1316. Order and return after term of office. A [writ
of] certiorari order may be [issued to] granted against, and
a return [to a writ of certiorari,] may be made by, an officer
whose term of office has expired. Such an officer may be punished
for a failure to make a return [to the writ] as required [thereby]
by the order, or to make a further return as required by an order
for that purpose.

[Code § 2136. Omitted by Board. See Board’s proposed rule 183.]

§ 1317. Bringing in third person. Upon the application of
a person specially and beneficially interested in upholding or
annulling the determination to be reviewed, the court [may], in
its discretion, may admit him as a party in the special proceedings,
upon such terms as justice requires. [And] Jn a proper case, a
term of the appellate division of the supreme court at which the
cause is noticed for hearing and is placed upon the calendar may[,
in a proper case, ] direct that notice of the pendency of the special
proceeding be given to any person in such a manner as it thinks
proper, and may suspend the hearing until notice is given
accordingly.

[Code § 2137. Omitted by Board. See Board’s proposed rule 95.]

§ 1318. Additional affidavits or proofs in certain cases.
If the officer or other person whose duty it is to make a return
Civin Pracricr Act 625

dies, absconds, removes from the state, or becomes insane, after
the [writ is issued,] order is granted and before making a return,
or after making an insufficient return, and it appears that there
is no other officer or person from whom a sufficient return can be
procured by means of a new certiorari order, the court [may],
in its discretion, may permit aftidavits, or other written proofs,
relating to the matters not sufficiently returned, to be produced,
and may hear the cause accordingly. The court [may also], in
its discretion, also may permit cither party to produce affidavits,
or other written proofs, relating to any alleged error of fact, or
any other question of fact, which is essential to the jurisdiction
of the body or officer to make the determination to be reviewed,
where the facts in reiation thereto are not sufficiently stated in
the return, and the court is satisfied that they cannot be made ty
appear, by means of an order for a further return.

[Code § 2139. Omitted by Board. See Board’s note 1406.]

§ 1319. Questions to be determined. The questions involv-
ing the merits to be determined by the court upon the hearing
are the following only:

1. Whether the body or officer had jurisdiction of the subject
matter of the determination under review.

2. Whether the authority conferred upon the body or officer in
relation to that subject matter has been pursued in the mode
required by law in order to authorize it or him to make the
determination.

38. Whether, in making the determination, any rule of law
affecting the rights of the parties thereto has been violated to the
prejudice of the [relator] petitioner.

4, Whether there was any -ompetent proof of all the facts
necessary to be proved in order to authorize the making of the
determination.

5. If there was such proof, whether [there was], upon all the
evidence, there was such a preponderance of proof against the
existence of any of those facts that the verdict of a jury, affirming
the existence thereof, rendered in an action in the supreme court
triable by a jury, would be set aside by the court as against tHe
weight of evidence.

[Code § 2140. Retained by Board as applying to its proposed action. See
Board’s proposed Civil Rights Law, § 96.]
626 Rerorr or Jomr Leaisitarive Commirrrr

§ 1320. Final order upon hearing. The court, upon the hear-
ing, may make a final order anuulling or confirming, wholly or
partly, or modifying, the determination reviewed, as to any or
all of the parties.

[Code § 2141. Omitted by Board. See Board’s note 417.]

§ 1321. Award of restitution. Where the determination
reviewed is annulled or modified, the court may order and enforce
restitution in like manner, with like effect and subject to the same
conditions as where a judgment is reversed upon appeal.

[Code § 2142. Omitted by Board as being sufficiently provided for. See
Board’s note 22382 to its proposed Judiciary Law, § 31-o.]

§ 1322. Costs. Costs, not exceeding fifty dollars and dis-
bursements, may be awarded by the final order in favor of or
against either party, in the discretion of the court.

[Code § 2143. See Board’s proposed Costs, Fees, Disbursements and Interest
Law, § 27.]

§ 1323. Entry and enrollment of final order. The final
order of the court [upon the certiorari] must be entered in the
office of the clerk where the [writ] certiorari order was return-
able. But before it can be enforced, an enrollment thereof must
be filed. For that purpose, the clerk must attach together and file
in his offce the papers upon which the cause was heard, a cer-
tified copy of the final order, and a certified copy of each order
which in any way involves the merits or necessarily affects the
final order.

[Code § 2144. Omitted by Board. Sce Board’s proposed rule 372.]

§ 1324. Effect of filing of enrollment. The filing of
the enrollment in the office of the clerk where the final order is
entered, as prescribed in the last section, is a sufficient authority
for any proceeding, by or before the body which, or the officer
who, made the determination reviewed, which the final order of
the court directs or permits. But where the execution of the final
order is stayed by an appeal to the court of appeals, the proceed-
ings below are stayed in like manner.

[Code § 2145. Retained by Board, as to its proposed action. See Board’s
Civil Rights Law, § 97.]
Cirvin Practice Act 627

§ 1325. Definition of terms “ body or officer” and “ deter=
mination”. The expression “ body or officer”, as used in this
article, includes every court, tribunal, board, corporation, or
other person, or aggregation of persons, whose determination
may be reviewed by @ cerliorari order or by a writ of certiorari
as the said writ heretofore existed; and the word “ determina-
tion”, as used in this article, includes every judgment, order,
decision, adjudication, or other act of such a body or officer, which
is subject to be so reviewed.

[Code § 2146. The Board covered the first clause in its proposed General
Construction Law, § 18-b, and the last clause in its proposed General Con-
struction Law, § 20-b.]

§ 1326. Application of article to certain special cases.
Where the right to a writ of certiorari is expressly conferred, or
the issuing thereof is expressly authorized, by a statute passed
before and remaining in force after this article takes effect, this
article does not vary or affect in any manner any provision of
the former statute which expressly prescribes a different regula-
tion with respect to any of tlie proceedings upon the certiorari to
be issued thereunder.

[Code § 2147. Omitted by Board, “the intention being to apply the

remedy by action to all cases where a certiorari is now available.” See
Board’s note 1406.]

§ 1327. Article applicable to civil cases only. This article
is not applicable fo a Ewrit of] certiorari brought to review a
determination made in any criminal matter, except a criminal
contempt of court.

[Code § 2148. Retained by Board as applying to its suggested action. See
Board’s proposed Civil Right Law, § 95, subd. 5.]

ARTICLE 80
MANDAMUS PROCEEDING

Section 1328. Writs of mandamus abolished.
1329. Mandamus orders classified.
1330. Granting of alternative mandamus order.
1331. Contents of petition for alternative order.
628 Rerorr or Jorvry Lecisnarive ComMrrrEs

Section 1332. Mandamus orders granted at special term.
1333. Mandamus order when granted by appellate
division.
1334. Peremptory mandamus order in first instance.
1835. Entry of mandamus orders.
1336. Service of alternative mandamus order.
1337. Objections to petition and order in points of law.
1338. Return to petition for mandamus order.
1339. Return or objections to first order.
1340. Making and filing of return.
1841. Form and contents of return.
1342. Objections to return as insufficient in law.
1343. Notice of filing return and objections.
1344. Application of certain provisions.
1345. Motion to set aside order.
1346. Issues of fact.
1347. Subsequent proceedings same as in an action.
1348. Trial of issue of fact generally.
1349. Place of trial of issue of fact.
1350. Trial of issue of Jaw upon appellate division order.
1351. Costs.
1352. Appeals.
1358. Recovery of damages by petitioner.
1354. Stay of proceedings and enlargement of time.
1355. Fine in certain cases.

§ 1328. Writs of mandamus abolished. The alternative and
peremptory writs of mandamus are hereby abolished. The
relief heretofore obtained by either of such writs under the
provisions of the code of civil procedure shall hereafter be
obtained by orders as provided in this article. Wherever in any
statute reference is made to a writ of mandamus, such reference
shall be deemed to refer to a mandamus order as provided in this
article, and the relief given by any such statute by means of a
writ shall be obtained by an order as provided in this article.

[The writ of mandamus has been abolished in the following sections. Instead
of the writ the same relief will hereafter be obtained by the order. The
writ appears to be one of the relics of the ancient practice which can well
be omitted from our practice. Practically all of the amendments made to the
sections in this article are rendered necessary by reason of this change in the
practice and mention of this reason therefore not repeated under each section.
The Board abolished all state writs except the writs of habeas corpus and
Orvit Practicr Act 629

certiorari to inquire into the cause of detention, and this committee recom-
mends similar action. The Board, however, provided that the relief formerly
obtained by writ might thereafter be obtained by action commenced by a
summons to appear. (See Board's proposed Civil Rights Law, § 195.) ]

§ 1329. Mandamus orders classified. A [writ of] manda-
mus order is either alternative or peremptory.

[First sentence of Code § 2067. Remainder is covered in the following
section. This provision was omitted hy the Board, as were also many other

sections in the present article of the Code, as unnecessary because of the sug-
gested new practice by action instead of by writ.]

§ 1330. Granting of alternative mandamus order. [The]
An alternative [writ] mandamus order may be granted upon
[an affidavit, or other written proof,] «a verified petition,
which may be accompanied by other written proof, showing a
proper case therefor. Previous notice of the application must be
given to a judge of the court, or to the corporation, board, or
other body, officer, or other person [to] against which or [to]
whom [it is directed] the order is sought.

{Last two sentences of Code § 2067. First section is covered in preceding
section. The section, as here given, provides for a verified petition in all cases
and permits other written proofs. See Code § 2127, which makes similar pro-
vision as to certiorari. The Board omitted this provision and provided for
relief by action.]

§ 1331. Contents of petition for alternative order. The
statement, contained in a petition for an alternative [writ of]
mandamus order, of the facts constituting the grievance to redress
which [it] the order is issued, the joinder [therein] 1m the
petition of two or more such grievances, and the command of the
[writ] order, are subject to the provisions of [chapter sixth of
this act] statute and rule resnecting the statement, im a com-
plaint, of the facts constituting a cause of action, the joinder
therein of two or more causes of action, and the demand of judg-
ment thereupon.

[Code § 2076, except last two sentences which are covered elsewhere. See
Board’s proposed rule 178.]

§ 1332. Mandamus orders granted at special term. Ex-

cept where special provision therefor is otherwise made in this
article, a [writ of] mandamus order can he granted only at a
630 Report or Jomr Lrastarive ComMiIrTEer

special term of the supreme court held within the judicial dis-
trict embracing the county wherein an issue of fact jomed upon
an alternative [writ of] mandamus order is triable, as prescribed
in this article.

[Code § 2068. Omitted by Board as covered by its proposed rule 87.]

§ 1333. Mandamus order when granted by appellate divi-
sion. A [writ of] mandamus order may be granted at a
term of the appellate division of the supreme court only, directed
generally [to] against any judge holding, or to hold, a special
term of the same court, or directed [to] against one or more
judges of the same court named therein, in any case where such
[a writ] order may be issued out of the supreme court[, directed
to] against any other court, or [to] a judge thereof. Such [a
writ] order can be granted only at a term of the appellate division
of the judicial department embracing the county wherein the
action is triable or the special proceeding is brought, in the course
of which the matter sought to be enforced by the mandamus order
originated, unless that term is not in session; in which case, it
may be granted at a term of the appellate division of an adjoining
judicial department.

[Code § 2069. Omitted by Board as covered by its proposed rule 87.]

§ 1334. Peremptory mandamus order in first instance. A
peremptory [writ of] mandamus order may be [issued] granted
in the first instance where the applicant’s right to the man-
damus order depends only upon questions of law, and notice of
the application has been given to a judge of the court or to
the corporation, board, or other body, officer, or other person, [to]
against which or [to] whom [it is] the order is directed. The
notice must be served at least eight days before the application is
heard; unless a shorter time is prescribed hy an order to show
cause made, where the application is to the special term, by the
court or a judge thereof; or where the application is to the
appellate division, by the appellate division or a justice of the
appellate division of that judicial department. In such a case the
application must be founded upon [affidavits or] @ verified peti-
tion, which may be accompanied by other written proofs, a copy of
which must be served with the notiec or order to show cause.
Where the court, board or other body to be served consists of
three or more members, the notice or order to show cause, and the
Civit Practicr Act 631

papers upon which the application is to he made, may be served
as prescribed [in the next section] for service of an alternative
[writ of] mandamus order. Except as prescribed in this section,
or by special provision of law, a peremptory mandamus order ean-
not be [issued] granted until an alternative mandamus order
has been [issued] granted and duly served, and the return day
thereof has elapsed.

[Code § 2070. Omitted by Board in view of its suggested change in
practice. See Board’s note 1512.]

§ 1335. Entry of mandamus orders. An alternative manda
mus order must be entered in the office of the clerk at whose
office the return must be made. A peremptory mandamus order
must be entered in the office of the clerk: of the county wherein the
term is held at which the order is returnable.

{New. This section is suggested because of the abolishing of the writ so
that in all cases the mandamus order shall be entered. This will permit of
service of certified copies. The place where the alternative order shall be
entered is suggested by Code § 2072 and in the case of peremptory order by
Code § 2074.]

§ 1336. Service of alternative mandamus order. An
alternative [writ of] mandamus order must be served by
[showing the original writ, and] delivering a certified copy
thereof together with a copy of the petition, and other papers, if
any, to the person to be served. Where [it] the order is directed
[to] against a court or [to] the judge or judges of a court, it
must be served, either in term time or in vacation, upon the judge
or judges of the court; except that, where the court consists of
three or more judges, service upon a majority of them is suffi-
cient. Where it is to be served upon a board or body, other than
a corporation, service must be made upon a majority of the mem-
bers thereof, unless the board or body was created by law and has
a chairman or other presiding officer appointed pursuant to law;
in which case, service upon him is sufficient. Where the [writ]
order is to be served upon a corporation, service [thereof] may
be made upon any officer upon whom a summons issued out of
the supreme court may be served. [Where one or more of the
persons, upon whom to make service, as prescribed in this section,
cannot, after due diligence, he found, the exhibition of the
original writ may be dispensed with, and service may he made
632 Rerorr or Jormvr Leatstative ComMirTEr

upon him or them, as prescribed by law for the service of a sum-
mons, issued out of the supreme court.]

[Code § 2071. See Board’s note 277. The provision that a copy of the
petition and other papers must be served with the order is necessary to inform
the defendant, since the alternative writ, containing the statement of facts,
is abolished. Last sentence omitted as unnecessary.]

§ 1337. Objections to petition and order in points of law.
The person, upon whom [the writ] an alternative mandamus
order is served, instead of making a return [thereto] to the peti-
tion and order, may file in the office where the [writ] order is
returnable [a demurrer to the writ; or he may file a demurrer to
a complete statement of facts contained in the writ, as constitut-
ing a separate grievance, and make a return to the remainder of
the writ. A demurrer may be thus taken, in a case where a
defendant may demur to a complaint, or to a cause of action
separately stated in a complaint, as prescribed in chapter sixth of
this act; and it must be in like form] written objections to the
papers in point of law; or he may object to a state of facts con-
stituting a separate grievance and make return to the petition and
order as to matters not affected by the objections.

[Last two sentences of Code § 2076. Remainder of section has been covered
in a prior section. The new matter is inserted to conform to the practice in
an action after demurrer is abolished.]

§ 1338. Return to petition for mandamus order. A
return to an alternative [writ] mandamus order and the petition
therefor must be made [returnable] within twenty days after the
service [thereof] of the order, at the office of the clerk of the
county, designated [therein] im the order, in which an issue of
fact joined thereupon is triable. A peremptory [writ] order
raust be made returnable at a special term or a term of the appel-
late division of the supreme court, designated [therein] in the
order, to which application for the alternative [writ] order might
have been made.

[Code § 2072. Omitted by Board as covered by rule 85. In this section
and in other sections following, reference, is made to the return to the “ peti-
tion” for the order as well as to the order itself. This is rendered necessary
by the abolishing of the writ which contained a statement similar to the
petition.]
Cryin Pravrice Acer 633

§ 1339. Return or objections to first order. Where
the first [writ of] mandamus order has been duly served, a
return must be made to the petition upon which the order [same]
was granted as therein required, unless it is an alternative [writ]
order, and [a demurrer thereto] an objection to the papers in
point of law is taken. In default of a return, the person or per-
sons upon whom the [writ order was served may he punished,
upon the application of the [people or of the relator} petitioner,
for a contempt of court.

[Code § 2073. The Board omitted this section as covered, See Board’s
note 211. The section has been here amended to avoid a reference to “ de-
murrer” as “demurrer” in civil actions is abolished in the report of the
Committee. In this and other sections following, reference to “ the people”
and “the relator” have been omitted, as there will be no “relator” if the

writs are abolished as recommended and “ petitioner” will be the correct
reference in such cases. |

§ 1340. Making and filing of return. The return to
[av] « petition and alternative [writ of} mandamus order must
be annexed to a copy of the [writ] order, and must be filed in
the office of the clerk where it is returnable, within the time
specified in the [writ] order. A person who has made a return
to [an] a@ petition and alternative mandamus order cannot be
compelled to make a further return. The return to a peremptory
[writ of} mandamus order must be likewise annexed to a copy
[thereof] of the order, and [must], before the expiration of the
first day of the term at which it is returnable, [be] either must be
delivered in open court, or be filed in the office of the clerk of the
county wherein the term is to be held.

[Code § 2074. Omitted by Board as covered. See Board’s note 211. The
second sentence is the first sentence of Code § 2078.]

§ 1341. Form and contents of return. The provisions of
[chapter sixth of this act] statute or rule relating to the form
and contents of an answer containing denials and allegations of
new matter, except those provisions which relate to the verification
of an answer, and to a counterclaim contained therein, apply to a
return to [an] «@ petition and alternative [writ of] mandamus
order, showing cause against obeying the command of the [writ]
order. For the purpose of the application, each complete state-
ment of facts assigning a cause why the command of the [writ]
634 Revorr or Jormvy Lecisnartive Commrrren

order ought not to be obeyed, is regarded as a separate defence
and must be separately stated and numbered.

[Code § 2077. Omitted by Board as covered. Sce Board’s note 211.]

§ 1342. Objections to return as insufficient in law.
The [people, or the relator,] petitioner may [demur] object to
the return, or to any complete statement of facts therein sepa-
rately assigned as a cause for disobeying the command of the
[writ] order, on the ground that the same is insufficient in law
upon the face thereof.

[Last sentence of Code § 2078. ‘The first sentence has been covered else-
where. Section omitted by Board as covered. See Board’s note 211.]

§ 1343. Notice of filing return and objections. Where
a return to [an] a petition and alternative [writ of] mandamus
order has been filed, the attorney for the defendant making it
must serve upon the attorney for the [people or the relator]
petitioner a notice of the filing thereof. Where the [people or
the relator demur to} petitioner objects to the return or [to] a
part thereof in point of law, a copy of [the demurrer] such objec-
tions must he served upon the attorney for the defendant within
twenty days after the service of such a notice. Where the defend-
ant [demurs] objects to the [writ] petition or to a part thereof, a
copy of [the demurrer] such objections must be served upon the
attorney for the [people or the relator] petitioner within the
time prescribed by law for filing [it] the same. Objections in
point of law raise an issue of law within the meaning of this
article.

[Code § 2081. References to demurrer omitted in view of change in practice.
Omitted by Board as covered. See Board’s note 277.]

§ 1344. Application of certain provisions. [Oral plead-
ings upon a writ of mandamus are abolished, and nJ Vo plead-
ings are allowed in a@ mandamus proceeding, except as pre
scribed in the foregoing sections of this article. The provisions of
[title second of chapter sixth of this act] statute or rule relating
lo the form and contents of complaint and answer, and to objec-
tions to cither, apply to the [writ] petition for a mandamus order
and the return, respectively; except that it is not negessary to
serve a copy of either upon the attorney for the adverse party,
Crvitn Pracriee Aar 635

or to verify [either] @ refin, and that neither can be amended
without special application to the court, or stricken out as sham.

[Code § 2080. Omitted by Board as covered. See Board’s note 2U1.]

§ 1345. Motion to set aside order. An alternative [writ of J
mandamus order cannot be [quashed] vacated or set aside upon
motion for any matter involving the merits. A motion to set
aside such [a writ] an order for any other cause or to set aside
or quash a peremptory [writ of mandamus order or to set aside
the service of either [writ] order must be made at a term
whereat the [writ] order might have heen granted.

[Code § 2075. Omitted by Board as covered. See Board’s note 211.)

§ 1346 Issues of fact. An issue of fact arises upon a
denial, contained in the return, of a material allegation of the
[writ] petition upon which the order was granted, or upon a
material allegation of new matter contained in a return; unless
[a demurrer] an objection thereto in point of law is taken. Where
the [people or the relator demur] petitioner objects in point of
law to a complete statement of facts separately assigned as cause
for disobeying the command of the [writ] order, an issue of fact
arises with respect to the remainder of the return.

[Code § 2079. Reference to demurrer omitted in view of change in practice.
Section omitted by Board as covered. See Board’s note 332.]

§ 1347. Subsequent proceedings same as in an action.
Except as otherwise expressly prescribed [in this act] by statute,
the proceedings after issue is joined, upon the facts or upon the
law, are the same, in all respects, [the same] as in an action; and
[in] each provision of [this act] statute or rule relating to the
proceedings in an action apply thereto. For the purpose of the
application, the [writ] petition for the order and the return[[, and
the demurrer] are deemed to be pleadings in an action; and the
final order is deemed to be a final judgment, and may be entered
and docketed, and enforced, with respect to such parts thereof as
are not enforced by a peremptory mandamus, as a final judgment
in an action. But before the final order can be docketed or an
execution issued thereupon, an enrollment must be filed there-
upon as a judgment-roll in an action. For that purpose, the clerk
must attach together and file in his office a certified copy of the
final order, the [writ] petition and the return, or copies thereof,
636 Rerorr or Jorny Lecisnatrive ComMirrEer

together with the same papers which are required by law to be
incorporated into a judgment-roll in an action. Where the final
order is in favor of the [people or the relator] petitioner, it must
Faward] include a peremptory mandamus [to be forthwith
issued }.

[Code § 2082. Reference to demurrer omitted in view of change in practice.
In the last sentence the provision that the final order in favor of the peti-
tioner must “ award ” has been changed so that the final order shall “ include ”
a peremptory mandamus or, in other words, so that the final order shall
make the necessary command a direction which would have been contained in
the “ peremptory writ” under present practice. No further order or direc-
tion will be necessary. See Board’s proposed Civil Rights Law, § 196. Sec-
tion omitted by Board as unnecessary, the practice being the same under its
plan as in other actions, except as to summons. See Board’s note 1512.]

§ 1348. Trial of issue of fact generally. An” issue of
fact, joined as prescribed in this article [upon an alternative writ
of mandamus], must be tried by a jury[[, as if it was an issue
joined in an action specified in section 968 of this act;], unless a
jury trial is waived or a reference is directed by consent of
parties. Where the [writ] order was issued upon the [relation]
application of a private person, the [relator] petitioner or the
defendant is entitled to a verdict, report or decision, where he
would be entitled thereto if the issue was joined in an action
brought by the [relator] petitioner against the defendant to
recover damages for making a false return.

[Code § 2083. The bracketed matter in the first sentence omitted as unneces-

sary, and no change being made in the substance of the section. The section
omitted by Board as covered. See Board’s proposed note 240.)

§ 1349. Place of trial of issue of fact. An issue of
fact, [joined upon an] if the alternative [writ of] mandamus
order was granted at a special term of the supreme court, is
triable in the county wherein it is alleged in the [writ] petition
that the material facts took place, unless the court directs it to be
tried elsewhere. An issue of fact, [joined upon an] if the
alternative [writ of] mandamus order was granted at a term of
the appellate division of the supreme court, is triable in the
eounty which determines the judicial department wherein the
application for the [writ] order must be made; unless the appel-
late division directs it to be tried in another county of the same
judicial department. Upon the trial of [an] the issue of fact,
[joined upon an alternative writ of mandamus] the verdict,
Civin Practicr Act 637

report or decision must be returned to, and the final order there-

upon must be made by, the appellate division or the special term,
as the case requires. Rg

[Code § 2084. Omitted by Board as covered. See Board’s notes 143 and
277.)

§ 1350. Trial of issue of law upon appellate division
order. An issue of law, [joined upon an] if the alternative
[writ of] mandamus order was granted by the appellate division,
must be tried and the final order thereupon must be made by the
appellate division.

[Code § 2085. Omitted by Board as covered. See Board’s note 332.]

§ 1351. Costs. Where an alternative [writ of] manda-
mus order has been issued, costs may be awarded as in an
action; except that, upon making a final order, the costs are in
the discretion of the court. Where an application for a per-
emptory [writ of] mandamus order is granted or denied, without
a previous alternative mandamus order, costs not exceeding fifty
dollars and disbursements may be awarded to either party as
upon a motion.

[Code § 2086. See Board’s proposed Costs, Fees, Disbursements and Interest
Law, § 2.]

§ 1352. Appeals. An appeal from [an order granting]
a peremptory [writ of] mandamus order where an alternative
{writ of] mandamus order was not previously issued, and an
appeal from an order granting or denying an application for an
alternative [writ of mandamus order, must be taken as from a
imal order made in a special proceeding. An appeal from a final
order made upon an alternative mandamus order must be taken
as an appeal from a judgment; and each provision of law relating
to an appeal from a judgment, either to the appellate division or to
the court of appeals, is applicable thereto. But where an appeal
ig taken, as prescribed in this section, from an order of the appel-
late division granting a peremptory mandamus, made upon an
original application, or from a final order made upon an alterna-
tive mandamus, granted at the appellate division, the execution
of the order appealed from shall not be stayed, except by the order
of the same appellate division, made upon such terms as to security
or otherwise as justice requires.

[Code § 2087. Omitted by Board as covered. See Board’s note 417.]
688 Report or Jorme Lear iarive Commirrer

§ 1353. Recovery of damages by petitioner. Where a
return has been made to [an] « petition and alternative [writ
of] mandamus order issued upon the [relation] application of a
private person, the court, upon making a final order for a per-
emptory mandamus, [must also,] except where said [writ] order
is directed [to] against a state officer or officers, or an officer or
officers of a municipal or private corporation, if the [relator]
petitioner so elects, also must award to the [relator] petitioner,
against the defendant who made the return, the same damages, if
any, which the petitioner [relator might recover in an action
against the defendant for a false return. The [relator] peti-
tioner may require his damages, where entitled thereto as afore-
said, to be assessed upon the trial of an issue of fact, if the verdict,
report or decision is in his favor. Such an assessment of damages
bars an action for a false return.

[Code § 2088. See Board’s proposed Civil Rights Law, § 196.]

§ 1354. Stay of proceedings and enlargement of time.
[The proceedings upon a writ of mandamus, granted at a special
term, may be stayed, and the time for making a return, or for
doing any other act thereupon, as prescribed in this article, may be
enlarged, as in an action, by an order made by a judge of the
court, but not by any other officer.} Where the [writ] man-
damus order was granted at a term of the appellate division, an
order staying the proceedings or enlarging the time to make a
return can be made only by a justice of the appellate division of
the same department; and where notice has been given of an
application for a mandamus order at a term of the appellate
division of the supreme court, or an order has been made to
show cause at such term why a mandamus order should not
issue, a stay of proceedings shall not be granted, before the hear-
ing, by any court or judge.

[Code § 2089. First sentence omitted as unnecessary. Omitted by Board
as covered and reference made to Board’s proposed rule 64.]

§ 1355. Fine in certain cases. Where a final order [awards]
includes a peremptory mandamus directed against [to] a public
officer, board or other body, commanding him or them to perform
a publie duty enjoined upon him or them by a special provision of
law, if it appears to the court that the officer, or one or more mem-
bers of the board or body, [have,J without just exeuse have re
Crvin Practice Act 639

fused or neglected to perform the duty so enjoined, the court, be-
sides awarding to the [relator] petitioner his damages and costs,
as prescribed in this article, may impose, in the same order,
[impose] a fine, not exceeding twe hundred and fifty dollars, upon
the officer, or upon each member of the board, who has so
refused cr neglected. The fine when collected must be paid
into the treasury of the state; and the payment thereof bars any
action for a penalty incurred by the person so fined, by reason
of his refusal or neglect to perform the duty so enjoined.

[Code § 2090. Word “awards” changed to “ includes ” in view of change in
practice, under which the peremptory command or mandamus will be con-

tained in the final order. See last sentence of Code § 2082 as amended by
Committee. See Board’s proposed Public Officers Law, § 82.]

ARTICLE 81
PROHIBITION PROCEEDING

Section 1356. Prohibition writs abolished.
1357. Granting of alternative order.

1358. Alternative orders granted at special term.

59. Alternative order, when granted by appellate

division.

1360. Contents of alternative order.
1361. Service of alternative order.
1862. Return to alternative order.
1363. Return by party.
1364. Proceedings after return,
1365. Granting final order when no return made.
1866. Alternative order granted first.
1367. Motion to vacate or set aside prohibition orders.
1368. Final order; costs.
1869. Appeals.
1870. Stay of proceedings; enlargement of time.

§ 1356. Prohibition writs abolished. The alternative and
absolute writs of prohibition are hereby abolished. The relief
heretofore obtained by either of such writs under the provisions
of the code of civil procedure shall hereafter be obtained by orders
as provided in this article. Wherever in any statute reference ts
made to a writ of prohibition, such reference shall be deemed to
64.0: Rerort or Jornt LeaistativEs ComMMiItTer

refer to an alternative or final prohibition order, as the case may
be, as provided in this article, and the relief given by any such
statute by means of a writ shall be obtained by an order as provided
in this article.

[New. The Board abolished the proceedings by writ and substituted actions.
See Board’s proposed Civil Rights Law, § 228, and Board’s note 1544. The
Committee does not adopt the Board’s recommendation, but suggests the
abolishing of the writs and the securing of similar relief by orders. The last
sentence is intended to adapt any reference to a prohibition order in any other
statute to the prohibition proceeding as herein regulated.]

§ 1357. Granting of alternative order. [A writ of pro-
hibition is either alternative or absolute. The] An alternative
[writ] prohibition order may be granted upon [an affidavit, or]
a verified petition, which may be accompanied by other written
proof, showing a proper case therefor. Previous notice of the
application must be given to a judge of the court, or to the corpora-
tion, board, or other body, officer, or other person [to] against
which or [to] whom [it is directed] the order is sought.

[Code § 2091, except first sentence which has been omitted as unnecessary
under the plan recommended by this Committee. Both writs are to be abol-
ished. The relief formerly obtained by an alternative order and the relief
formerly obtained by an absolute writ will be obtained by means of the final
order which may include an absolute prohibition of the acts to be restrained.
The entire section was omitted by the Board in view of change in practice.
See Board’s note 1544.]

§ 1358. Alternative orders granted at special term.
Except where special provision therefor is otherwise made in
this article, an alternative [writ of] prohibition order can be
granted only at a special term of the court. In the supreme court,
the special term must be one held within the judicial district
embracing the county wherein the action is triable or the special
proceeding is brought, in the course of which the matter sought to
be prohibited by the [writ] order originated.

[Code § 2092. Omitted by Board. See Board’s proposed rule 87.]

§ 1359. Alternative order, when granted by appellate
division. An alternative [writ of] prohibition order may be
granted at a term of the appellate division of the supreme court
only, directed gencrally [to] against any judge holding, or to hold,
a special term of the same court, or directed [to] against one or
Cryin Practice Act 641

more judges of the same court, named therein, in any case where
such [a writ] an order may be issued out of the supreme court
directed to any other court or to a judge thereof. Such [a writ]
an order can be granted only at the term of the appellate division
of the judicial department embracing the county wherein the
action is triable or the special proceeding is brought, in the course
of which the matter sought to be prohibited by the [writ] order
originated, unless a term of the appellate division of said depart-
ment is not in session; in which case, it may be granted at a term
of. the appellate division in an adjoining judicial department.

[Code § 2093. Omitted by Board. See Board’s proposed rule 87.]

§ 1360. Contents of alternative order. The alternative
[writ] order must be directed [to] against the court in which, or
[to] the judge lhefore whom, and also [to] the party in whose
favor the proceedings to be restrained were taken or are about
to be taken. It must command the court or judge and also the
party to desist and refrain from any further proceedings in the
uction or special proceeding, or with respect to the particular
matter or thing described therein, as the case may be, until the
further direction of the court [issuing the writ] granting the
order; and also to show cause, at the time when and the place
where the [writ] order is made returnable, why they should not
be absolutely restrained from any further proceedings in that
action, special proceeding or matter. The [writ] order need not
contain any statement of the facts or legal objections upon whieh
the [relator] petitioner founds his claim to relief.

[Code § 2094, except first sentence which is covered in a separate section.
Omitted by Board as covered. See Board’s note 377.]

§ 1361. Service of alternative order. The [writ] alter-
native order must be served on the court or judge, and also upon
the party, as prescribed by law for the service of an alternative
[writ of] mandamus order. A copy of the papers upon which
it was granted must be delivered with each copy of the [writ]
order.

[Last two sentences of Code § 2095. Omitted by the Board as covered. See
Board’s note 277.]

§ 1362. Return to alternative order. [The writ] A
return to a petition and an alternative order must be made [rcturn-
G42 Rerorr or Jomvr Leaisnative ComMrirrer

able] cither forthwith or at a day certain, before the term which
granted [it] the order, or upon the first day of a future term,
therein specified, at which application for the [writ] order might
have been made, as therein required. Where [it] the order is
granted at a term of the appellate division in a judicial depart-
ment adjoining that wherein the matter originated, it may be
made returnable, in the diseretion of the court, [be made return-
able] at a term of the appellate division of either department.
The return must be annexed to a copy of the [writ] order, and
it evther must be [either] delivered in open court, or filed in
the office of the clerk of the county where the [writ] order is
returnable. Where the party makes a return, the court or judge
also must [also} make a return. In default thereof, the judge
or the members of the court may be punished, upon the applica-
tion of the [people or of the relator] petitioner, for a contempt
of the court [issuing the writ] granting the order. A return to
an alternative [writ of] prohibition order cannot be compelled
in any other case.

[First two sentences are the first two sentencs of Code § 2095. Omitted
by Board as covered by Board’s proposed rule 85. The last three sentences

are all of Code § 2096, except the first sentence. All omitted by the Board
as covered by Board’s proposed rule 183.]

§ 1263. Return by party. <A return to @ petition and an
alternative [writ order, when made by a party, must be veri-
fied by his affidavit, as required for the verification of a pleading
in a’ court of record, unless it consists only of objections to the
legal sufficiency of the papers upon which the [writ] order was
granted. Where the party unites with the court or judge in a
return, or annexes to the court’s or the judge’s return an instru-
ment in writing, subscribed by him, to the effect that he adopts
it and relies upon the matters therein contained as sufficient cause
why the court or judge should not be restrained, as mentioned in
the [writ] order, he is thenceforth deemed the sole defendant
in the special proceeding; except that where a final order [is made
awarding} includes an absolute [writ of] prohibition, such [a
writ] an order must be directed [to] against the party and
also [to] against the court or the judge.

[Code § 2098. The change in the language at the end is made because the

absolute prohibition order under the plan suggested will be contained in the
final order. Omitted by Board as covered by Board’s proposed rule 183.)

 
Cryin Practice Act 643

§ 1364. Proceedings after return. Pleadings are not
allowed upon a [writ of] prohibition order. Where an alternative
[writ] order has been [issued] granted, the cause may be dis-
posed of without further notice at the term at which the [writ]
order is returnable. If it is not then disposed of, it may be
brought to a hearing upon notice at a subsequent term. It must
be heard at a term of the appellate division in the same judicial
department or at a special term held in the same judicial district,
as the case may be. The [relator] petitioner may controvert,
by affidavit, any allegation of new matter contained in the return.
The court may direct the trial of any question of fact by a jury,
in like manner and with like effect as where an order is made
for the trial by a jury of issues of fact joined in an action triable
by the court. Where such a direction is given, the proceedings
must be the same as upon the trial of issues so joined in an action.

{Code § 2099. Omitted by the Board and reference made to Board’s pro-
posed rule 183.]

§ 1365. Granting final order when no _ return made.
Where the alternative [writ] order has been duly served upon
the court or judge, and upon the party, the [relator] petztioner
is entitled to a final order containing an absolute [writ] probzbr-
tion, unless a return is made by the court or judge and by the
party according to the exigency of the alternative [writ] order, or
within such further time as may be granted for the purpose.

[First sentence of Code § 2096. Omitted by Board. See Board’s note 377.]

§ 1366. Alternative order granted first. Except as other-
wise specially prescribed by law, a final order containing an
absolute [writ of] prohibition cannot be granted [issued] until
an alternative [writ] order has been issued and duly served and
the return day thereof has elapsed.

[First sentence of Code § 2094. Omitted by Board in view of change in
practice. See Board’s note 1544.]

§ 1367. Motion to vacate or set aside prohibition orders.
An alternative [writ of] prohibition order cannot be [quashed
vacated or set aside,-upon motion, for any matter involving the
merits. An objection to the legal sufficiency of the papers upon
which the [writ] order was granted may be taken in the return.
A motion to [quash] vacate a final order containing an absolute
644 Rerorr or Jormvr Lecrstative, ComMirrer

[writ of] prohibition, or to set aside an alternative: [writ] order
for any matter not involving the merits, must be made at a term
where the [writ] order might have been: granted.

[Code § 2097. Omitted by the Board in view of its proposed change in
practice. ]

§ 1368. Final order; costs. Where a final order is made
in favor of the [relator] petitioner, it must [award] include
an absolute [writ of] prohibition; and it may also direct that
all proceedings, or any specified proceeding, theretofore taken
in the action, special.proceeding or matter, [as] to which the
absolute prohibition [absolute issues] relates, be vacated and
annulled. [The writ of consultation is abolished.J Where a final
order is made against the [relator] petitioner, it must authorize
the court or judge and the adverse party to proceed in the action,
special proceeding or matter, as if the alternative [writ] order
had not been issued. Costs, not exceeding fifty dollars and dis-
bursements, may be awarded to either party as upon a motion.

[Code § 2100. ‘The last: sentence was covered by Board in its proposed

Costs, Fees, Disbursements and Interest Law, § 82, and the remainder of
section was omitted. See Board’s note 377.)

§ 1369. Appeals. An. order granting or denying an appli-
cation for an alternative [writ of] prohibition order, and a final
order, made as prescribed in the last section, can be reviewed only
by appeal. Where the order was made by the appellate division,
the execution of the order appealed from shall not be stayed,
except by an order made at a term of the appellate division in the
same department, upon such terms as to security or otherwise as
justice requires. .

[Code § 2101. Omitted by Board. See Board’s note 417.]

§ 1370. Stay of proceedings; enlargement of time. [The
proceedings upon a writ of prohibition, granted at a special
term, may be stayed, and the time for making a return, or
doing any other act thereupon, as prescribed in this artiele,
may be enlarged, as in an action, by an order made by the judge
of the court, but not by any other officer.]J Where the [writ]
prohibition order was granted at a term of the appellate division,
an order staying the proceedings or enlarging the time to make
a return can be made only by a justice of the appellate division

 
Civin Practice Aor 645

of the judicial department within which the [writ] order is
returnable; and where notice has been given of an application
for a prohibition order at a term of the appellate division, or an
order has been made to show cause at such term why a prohibition
order should not issue, a stay of proceedings shall not be granted,
before the hearing, by any court or judge.

[Code § 2102. First sentence omitted as unnecessary. Omitted by Board as
covered by its proposed rule 64.]

ARTICLE 82

PROCEEDING FOR APPOINTMENT OF COM-
MITTEE OF INCOMPETENT; POWERS AND
DUTIES OF COMMITTEE

Section 1371. Jurisdiction of supreme court; concurrent juris-
diction of county court.
1372. Duty of court having jurisdiction.
1373. Jurisdiction of court to be exercised by committee.
1374. Petition for committee; by. whom made.
1375. Notice of presentation of petition.
1376. Notice of pendency of proceeding; effect.
1377. Injunction.
1878. When foreign committee may be appointed.
1379. Order for commission, or for trial by jury in
courts.
1380. Contents of commission.
1381. Jury to be procured; proceedings thereupon.
1382. Proceedings upon the hearing.
1383. Return of inquisition and commission.
1384. Expenses of commission.
1385. Proceedings upon trial by jury in court.
1386. Subject of inquiry in cases of lunacy.
1387. Proccedings upon verdict, or return of commission.
1388. Costs and disbursements.
1389. Application and proceedings where incompetent is
inmate of state institution.
1390. Security to be given by committee.
1391. Compensation of committee.
46 Reporr ov Jouny LucistariveE ComMirrEer

Section 1392. Control, duties and powers of committee.
1398. Inventory and account by committee.
1394. Annual examination of accounts and inventorics.
1395. Proceedings for removal of committee.
1396. Intermediate and final accounting of committee.
1897. Restoration of property.
1398. Death of incompetent; duty of committee.
1399. Jurisdiction of supreme court over contracts of
incompetents.

§ 1371. Jurisdiction of supreme court; concurrent juris-
diction of county court. The jurisdiction of the supreme
court extends to the custody of the person and the care of the prop-
erty of a person incompetent to manage himself or his affairs in
consequence of lunacy, idiocy, habitual drunkenness, or imbecility
arising from old age or loss of memory and understanding, or other
cause. Where a county court has jurisdiction of those matters,
concurrent with that of the supreme court, the jurisdiction of the
court first exercising it, as prescribed in this article [title], is
exclusive of that of the others with respect to any matter within
its jurisdiction for which provision is made in this article [title].

[Code § 2320, except last sentence, without change. Last sentence made
separate section. Included by Board in Civil Rights Law, § 174.]

§ 1372. Duty of court having jurisdiction. The court
exercising jurisdiction over the property of either of the incom-
petent persons, specified in the. last section, must preserve his
property from waste or destruction; and, out of the proceeds
thereof, must provide for the payment of his debts and for the
safe keeping and maintenance, and the education, when required,
of the incompetent person and his family.

[Code § 2321, without change. Included by Board in Civil Rights Law,
§ 174.)

§ 1373. Jurisdiction of court to be exercised by com-
mittee. The jurisdiction specified in this article [the last two
sections}, must be exercised by means of a committee of the
person, or a committee of the property or of a particular portion
of the property, of the incompetent person, appointed as prescribed
in this article [title]. The committee of the person and the com-
Cryin Practice Acr 647

mittee of the property may be the same individual or different
individuals, in the discretion of the court.

[Code § 2322, without change of substance. Included by Board in Civil
Rights Law, § 174.]

§ 1374. Petition for committee; by whom made. An
application for the appointment of such a committee must be made
by petition, which may be presented by any person.

Where the incompetent person has property which may be
endangered in consequence of his incompetency, and no relative
or other person applies for the appointment of a committee of
his property, the overseer or superintendent of the poor of the
town, district, county or city in which he resides, or, where
there is no such officer, the officer or officers performing corre-
sponding functions under another official title, must apply to the
proper court for the appointment of such a committeef. The] -
and the expenses of conducting the proceedings thereupon must
be audited and allowed in the same manner as other official
expenses of those officers are audited and allowed.

[Code § 2323, first sentence, and § 2324, without change. Included by
Board in Civil Rights Law, § 175.]

§ 1375. Notice of presentation of petition. The court
[must], unless sufficient reasons for dispensing therewith are set
forth in the petition or accompanying affidavit, must require
notice of the presentation of the petition to be given to the hus-
band or wife, if any, or to one or more relatives of the person
alleged to be incompetent, or to an officer authorized by law to
present such a petition [specified in the last section]. Where
notice is required, it may be given in any manner which the court
deems proper; and for that purpose, the hearing may be adjourned
to a subsequent day, or to another term, at which the petition
might have been presented.

[Code § 2325, last two sentences, without change of substance. Omitted by
Board, the proceeding being an action, and thus covered by rule 207, govern-
ing service of summons.]

§ 1376. Notice of pendency of proceeding; effect. In
all proceedings taken under this article [title], if real property
or any interest therein is intended to be affected, the petitioner
shall file in the clerk’s office of each county where the property
648 Rerorr or Journey Lear arive ComMMrrrEee

is situated a notice of the pendency of such proceeding which
shall set forth the general nature and object of the proceeding and
a brief description of the real property in that county to he affected
thereby, and which notice must be filed with the petition or any
time thereafter and before any final adjudication in the proceed-
ing. The clerk shall index such notice against the name of the
alleged incompetent. The pendency of the proceeding is con-
structive notice from the time of so filing the notice only toa
purchaser or incumbrancer of the property affected thereby from
or against the alleged incompetent with respect to whom the notice
is directed to be indexed [as aforesaid]. A person whose convey-
ance or incumbrance is subsequently executed or subsequently
recorded is bound by all proceedings taken after the filing of the
notice to the same extent as if he was a party to the proceeding.
But this provision shall not prevent a jury in a proper proceeding,
on sufficient proof, from rendering a verdict that shall over-reach
any conveyance or incumbrance theretofore executed by the alleged
incompetent, so as to make such conveyance or incumbrance prima
facie void.

[Code § 2325-a, without change of substance. The requirement as to filing
is omitted by Board as covered by rule 31-ff, in relation to filmg lis pendens

in action. The latter part of section as to effect is included by Board in
Real Property Law, § 738.]

§ 1377. Injunction. [[3.J When it satisfactorily appears
from the petition and accompanying affidavits that any person
or persons [having] has or have acquired from the alleged incom-
petent person real or personal property during the time of such
alleged incompetency, without adequate consideration, the court
may issue an order, with or without security, restraining such
person or persons from selling, assigning, disposing of or incum-
bering said property, or confessing judgment which shall become
a lien upon said property, during the pendency of the proceeding
for the appointment of a committee, and said order [may], in
the discretion of the court, may be continued for ten days after
the appointment of such committee. Notice of the execution of
[the] « commission tssued pursuant to the provisions of this
article shall be given to the person or persons enjoined, in such
manner as the court may direct.

[Code § 2327, subd. 3, without change. Included by Board in Civil Rights
Law, § 184, subd. 7.]
Crvit Practice Act 649

§ 1378. When foreign committee may be appointed.
Where the person alleged to be incompetent resides without the
state, and a committee, curator or guardian of his property, by
whatever name such officer may be designated, has been duly
appointed pursuant to the laws of any other state, territory or
country where he resides, the court [may], in its discretion, may
make an order appointing the foreign committee, curator or
guardian, the committee of all or of a particular portion of the
property of the incompetent person, within the state, on his giving
such security for the discharge of his trust as the court thinks
proper.

[Code § 2326, without change. Included by Board in Civil Rights Law, §
183.)

§ 1379. Order for commission, or for trial by jury in
courts. Unless an order is made, as prescribed in the last section,
if it presumptively appears, to the satisfaction of the court, from
the petition and the proofs accompanying it, that the case is one of
those specified in this article [title], and that a committee ought,
in the exercise of a sound discretion, to be appointed, the court
must make an order directing either

1. That a commission issue, as prescribed in the next section,
to one of more fit persons designated in the order; or

2. That the question of fact, arising upon the competency of
the person with respect to whom the petition prays for the appoint-
ment of a committee, be tried by a jury at a trial term of the
court.

[Code § 2327, subd. 1 and 2, without change. Omitted by Board as covered
by rule 286.]

§ 1380. Contents of commissien. The commission must
direct the commissioners to cause the sheriff of a county, specified
therein, to procure a jury; and that they inquire, by the jury, into
the matters set forth in the petition; and also into the value of the
real and personal property of the person alleged to be incompetent,
and the amount of his income. It may contain such other direc-
tions with respect to the subjects of inquiry or the manner of
executing the commission as the court directs to be inserted
therein, subject to rules.

[Code § 2328, without change. See Board’s proposed rule 286.]
650 Rerorr or Jomnt Leaastative ComMMIttTEr

§ 1381. Jury to be procured; proceedings thereupon.
The commissioners, or a majority of them, [must] immediately
must issue a precept to the sheriff designated in the commission,
requiring him to notify not less than twelve nor more than twenty-
four indifferent persous, qualified to serve and not exempt from
serving as trial jurors in the same court, to appear before the com-
missioners at a specified time and place within the county, to
make inquiry as commanded by the commission. The sheriff
must notify the jurors accordingly, and must return the precept
and the names of the persons notified to the commissioners at the
time and place specified in the precept. The commissioners, or a
majority of them, must determine a challenge made to a juror.
Upon the failure to attend, of a person who has been duly notified,
his attendance may be compelled; and he may be punished by
the court fora contempt, as where a juror duly notified fails to
attend at a trial term of the court. The commissioners may
require the sheriff to cause a talesman to attend in place of a
juror notified and not attending, or who is excused or discharged ;
or they may adjourn the proceedings for the purpose of punishing
the defaulting juror or compelling his attendance. But it is not
necessary to cause any talesman to attend if at least twelve of the
persons notified by the sheriff appear and are sworn.

[Code § 2330, without change.]

§ 1382. Proceedings upon the hearing. All the com-
missioners must attend and preside at the hearing; and they,
or a majority of them, [have,] with respect to the proceedings
upon the hearing, have all the power and authority of a judge of
the court holding a trial term, subject to the directions contained
in the commission. Either of the commissioners may administer
the usual oath to the jurors. At least twelve jurors must concur
in a finding. Tf twelve do not concur, the jurors must report their
disagreement to the commissioners, who must thereupon discharge
them and issue a new precept to the sheriff to procure another

jury.
[Code § 2331, without change. }

§ 1383. Return of inquisition and commission. The in-
quisition must be signed by the jurors concurring therein, and by
the commissioners or a majority of them, and be annexed to the
Crvit Practice Act G51

commission. The commission and inquisition must be returned
by the commissioners and filed with the clerk.

[Code § 2332, without change.]

Ԥ 1384. Expenses of commission. The commissioners are
entitled to such compensation for their services, as shall be
prescribed by rule [the court directs]. The jurors are entitled to
the same compensation as jurors upon the trial of an issue in an
action in the same court. The petitioner must pay the compensa-
tion of the commissioners, sheriff and jurors.

[Code § 2333, without change. Included by Board in Costs Law, § 79.

General Rule: of Practice 71 fixes the compensation of commissioners at ten
dollars per day.]

§ 1385. Proceedings upon trial by jury in court. Where
an order is made directing the trial by a jury at a trial term,
of the questions of fact arising upon the competency of the person
with respect to whom the petition prays for the appointment of
a committee, the order must state, distinctly and plainly, the
questions of fact to be tried; which may be settled as where an
order for a similar trial is made in an action. The court [may],
in that or in a subsequent order, may direct that notice of the
trial be given to such persons and in such a manner as is deemed
proper. The trial must be reviewed in the same manner, with
like effect, and, except as otherwise directed in the order, the pro-
ceedings thereupon aref, in all respects, ] the same in all respects
as where questions of fact are tried pursuant to an order for that
purpose. The court may make inquiry by means of a reference
or otherwise, as it thinks proper, with respect to any matter
not involved in the questions tried by the jury, the determination
of which is necessary in the course of the proceedings. The
expenses of the trial and of such an inquiry must be paid by
the petitioner.

[Code § 2334, without change. The last sentence is included by Board in
Costa Law, § 79, and the whole section said to be covered by rule 286.]

§ 1386. Subject of inquiry in cases of lunacy. Where
the petition alleges that the person with respect to whom it
prays for the appointment of a committee is incompetent, by
reason of lunacy, the inquiry with respect to his competency, upon
the execution of a commission or the trial at a trial term, as
652 Rerorr or Jornt Leqistative: ComMMITTEE

prescribed in this article [title], must be confined to the question
whether he is so incompetent at the time of the inquiry; and
testimony respecting any thing said or done by him, or his
demeanor or state of mind, more than two years before the hearing
or trial, shall not be received as proof of lunacy, unless the
court otherwise specially directs in the order granting the com-
mission or directing the trial by jury..

[Code § 2335, without change. Omitted by Board, including the provision
limiting the period of inquiry.]

§ 1387. Proceedings upon verdict, or return of com-
mission. Upon the return of the commission with the inquisi-
tion taken thereunder, or the rendering of the verdict of the jury
upon the question submitted to it by the order for a trial by a
jury, the court ether must [either] direct a new trial or hearing
or make such a final order upon the petition as justice requires.

[Code § 2336, first seritence, without change. The remainder of section is
included in next section.] :

§ 1388. Costs and disbursements. Where a final order
is made dismissing a petition, the court [may], in its discretion,
may award in the order a fixed sum as costs, not exceeding fifty
dollars and disbursements, to be paid by the petitioner to the
adverse party. Where a committee of the property is appointed,
the court must direct the payment by him, out of the funds in his
hands, of the necessary disbursements of the petitioner, and of
such a sum for his costs and counsel fees as it thinks reasonable;
and [it may], in its discretion, 7t may direct the committee to
pay a sum, not exceeding fifty dollars and disbursements, to the
attorney for any adverse party.

[Code § 2336, second and third sentences, without change. Included by
Board in Costs Law, § 78.]

§ 1389. Application and proceedings where incompetent
is inmate of state institution. 7. Where an incompetent
person has been committed to a state institution in any manner
provided by law and is an inmate thereof, the petition may be
presented on behalf of the state by a state officer having special
jurisdiction over the institution where the incompetent person is
confined or the superintendent or acting superintendent of said
institution.
Cryin Pracrice Act 653

2. The petition must be in writing and verified by the affidavit
of the petitioner or his attorney to the effect that the matters
therein stated are true to the best of his information or belief; it
must show that the person for whose person or property, or both,
a committee is asked has been legally committed to a state institu-
tion over which the petitioner has special jurisdiction, or of which
he is superintendent or acting superintendent, and is at the time
an inmate thereof; it must also state the institution in which he
is an inmate, the date of his admission, his last known place of
residence, the name and residence of the husband or wife, if any,
of such person, if known to the petitioner, and if there be none
known to the petitioner, the name and residence of the next of
kin of such person living in this state so far as known to the peti-
tioner; the nature, extent and income of his property, so far as
the same is known to the petitioner, or can with reasonable dili-
gence be ascertained. by him.

8. The petition may be presented to the supreme court at any
special term thereof held either in the judicial district in which
such ‘incompetent person last resided or in the district in which
the state institution in which he is committed is situated, or to a
justice of the supreme court at chambers within such judicial dis-
trict, or to the county court of the county in which the incompetent
person resided at the time of such commitment, or of the county
in which said institution is situated.

4, Notice of the presentation of such petition shall be person-
ally given to such person, and also to the husband or wife, if known
to the petitioner, or if none is known to the petitioner, to the next
of kin named in the petition, and to the officer in charge of the
institution. in which such person in an inmate, unless sufficient rea-
sons for dispensing therewith are set forth in the petition or showr
by affidavit. When notice is required, it may be given in any
manner which the court deems proper.

5. Upon the presentation of such petition, and proof of the
service of such notice, the court or justice [may], if satisfied of
the truth of the facts required to be stated in such petition, imme
diately may appoint a committee of the person or property, or both,
of such incompetent person or may require any further proof
«which it or he may deem necessary before making such appoint-
ment.

6. Upon the presentation of a petition and the appointment of
a committee, [as provided in section two thousand three hundred
GDL Revorr or Jorwnr Lecisuative CoMMITTEE

and twenty-three (a),] the court or justice may award costs of
the proceeding, not exceeding twenty-five dollars in addition to
necessary disbursements, to the petitioner, payable from the estate
of the incompetent person, and upon denial of an application to
set the same aside, costs as of a motion.

7. The provisions of statute or rule relating to the presentation
of a petition for the appointment of a committee of an alleged
incompetent person, the proceedings thereon and the appointment
of such a committee [Sections two thousand three hundred and
twenty-five to two thousand three hundred and thirty-six, both
inclusive, of this title], shall not apply to applications for the
appointment of a committee made [by it] on behalf of the state
to secure reimbursement, in whole or in part, for maintenance
and support in a state institution.

{Code §§ 2323-a, 2323-b, 2336-a, combined without change of substance.
Included by Board in Insanity Law, §§ 173-175. The court in Sporza v.
German Savings Bank, 192 N. Y. 8, confines the application of the section to
incompetent persons so adjudged by jury trial, but for whom a committee for
any reason has not been appointed. Otherwise the section is unconstitutional]

§ 1390. Security to be given by committee. [The pro-
visions of sections twenty-five hundred and seventy-six, twenty-
six hundred and fifty and twenty-six hundred and fifty-two of this
act, respecting the security to be given by the guardian of the per-
son or of the property of an infant, appointed by a surrogate’s court,
except that part thereof authorizing the appointment of an asso-
ciate with the guardian and the security to be given in such a case,
apply to a committee of the person or of the property, appointed
as prescribed in this article] A committee of the property of an
incompetent must give to the incompetent security for the faithful
discharge of his trust or for an accounting of all moneys or prop-
erty of the incompetent received by him, in such amount as the
court shall prescribe. A committee of the person of an incom-
petent, if required by the court, also must give to the incompetent
like security, in such amount as the court shall prescribe. A com-
mittee of the property cannot enter upon the execution of his
duties until security is given as prescribed by the court. A com-
mittee of the person cannot enter upon the execution of his duties.
until security is given if required by the court.

{Code § 2337, first sentence rewritten, but without intended change of sub-
stance. See section 238 proposed by Committee.]
Cryin Pracrics Acr G55

§ 1391. Compensation of committee. A  committec of
the property is entitled to the same compensation as an executor,
administrator or testamentary trustee. But in a special case where
bis services exceed those of an executor or administrator, the
supreme court or a county court within the county may allow him
such an additional compensation for-such additional services as it
deems just. The compensation of a committee of the person must
be fixed by the court and paid by the committee of the property,
if any, out of the funds in his hands. The additional compensa-
tion authorized by this section may be allowed to the committee
upon any judicial settlement made by him, and shall be for such
additional services up to and including such settlement.

[Code § 2338, without change. Included by Board in Civil Rights Law,
§ 177.] ,

§ 1392. Control, duties and powers of committee. <A
committee, either of the person or of the property, is subject to
the direction and control of the court by which he was appointed,
with respect to the execution of his duties; and he may be sus-
pended, removed, or allowed to resign, in the discretion of the
court. A vacancy created by death, removal or resignation may
be filled by the court. But a committce of the property cannot
alien, mortgage or otherwise dispose of real property, except to
lease it for a term not exceeding five years, without the special
direction of the court obtained upon proceedings taken for that
purpose, as prescribed in [title seventh of] this act [chapter].

A committee of the property [appointed as prescribed in this
title,] may maintain in his own name, adding his official title,
any action or special proceeding which the person with respect
to whom he is appointed might have maintained if the appoint-
ment had not been made.

[Code §§ 2339, 2340, without change of substance. Included by Board in
Civil Rights Law, § 178.]

§ 1393. Inventory and account by committee. The pro-
visions of the surrogate court act [sections twenty-six hundred
and sixty and twenty-six hundred and sixty-one of this act,]
requiring the general guardian of an infant’s property, appointed
by a surrogate’s court, to file in the month of January in each
year an inventory, account and affidavit, and prescribing the form
of the papers so to be filed, apply to a committee of the property
656 Rerorr or Jormsr Learsnative CoMMITTEE

appointed as prescribed in this article [title]. For the purpose
of making that application, the committee is deemed a general
guardian of the property; the person with respect to whom he is.
appointed is deemed a ward, and the papers must be filed in the
office: of the clerk of the court by which the committee was
appointed, or if he was appointed by the supreme court, in the
clerk’s office where the order appointing him is entered, and, if
the incompetent person for whom such committee is appointed
has been committed to a state institution and is an inmate thereof,
a duplicate of such inventory, account and affidavit shall be filed
also by said committee with the superintendent or officer having
special jurisdiction over the institution where the incompetent per-
son is confined. In every case where a committee has used or
employed the services of an incompetent person, with respect to
whom he has been appointed a committee, or where moneys have
been earned by or received on behalf of such incompetent person.
the committee must account for any moneys so earned or derived
from such services the same as for other property or assets of the
incompetent person.

[Code § 2341, without change of substance. Included by Board in Civil
Rights Law, § 179.]

§ 1394. Annual examination of accounts and inventories.
In the month of February of each year, the presiding judge
of the court by which the committee of the. property was
appointed, or if he was appointed by the supreme court, the county
judge of the county where the order appointing him is entered,
must examine, or cause to be examined under his direction, all
accounts and inventories filed by committees of the person and
property since the first day of February of the preceding year.
If it appears upon the examination that a committee appointed
as prescribed in this article [title] has omitted to file his annual
inventory or accounting, or the affidavit relating thereto, as pre
scribed in the last section, or if the judge is of the opinion that the
interests of the person with respect to whom the committee was
appointed requires that he should render a more full or satis-
factory inventory or account, the judge must make an order
requiring the committee to supply the deficiency, and also,
in his discretion, personally to pay the expense of serving
the order upon him. An order so made may be entered
and enforced, and the failure to obey it may be punished,
Crvin Pracricy Acr G57

as if it were made by the court. Where the examination
of the accounts and inventories of committees of incompetent
persons provided for herein is made pursuant to the order
or direction of a county judge, the expense of such examina-
tion as allowed by the county judge directing the examination
shall be payable by the county treasurer of the county out of any
court funds in his hands, upon the order of the county judge
directing such examination.

[Code § 2342, in part without change. Included by Board in Civil Rights
Law, § 180; County Law, § 240.]

§ 1395. Proceedings for removal of committee. Where the
committee fails to comply with the order within three months after
it is made, or where the judge has reason to believe that sufficient
cause exists for the removal of the committee, the judge [may],
in his discretion, may appoint a fit person special guardian of
the incompetent person with respect to whom the committee was
appointed, for the purpose of filing a petition in his behalf for
the removal of the committee and prosecuting the necessary pro-
ceedings for that purpose. The committee may be compelled in
the discretion of the court to pay personally the costs of the pro-
ceedings so instituted.

[Code § 2342, pt., without change. Included by Board in Civil Rights Law,
§ 180.]

§ 1396. Intermediate and final accounting of commit-
tee. The following provisions regulate intermediate and final
accountings of the committee of an incompetent person appointed
as prescribed in this article:

1. The committee may apply to the court making the appoint-
ment for an order to permit him to render to such court an inter-
mediate judicial account of all his proceedings affecting the prop-
erty of the incompetent person to the date of the filing thereof.
And the court upon examination [may], in its discretion, may
-make an order directing that such account be filed with the clerk
of the court where the application is made, on or before the date
determined by the order.

2. The account to be filed pursuant to such order shall be veri-
fied and contain a just, true and proper statement of all the acts
of the committee, and an itemized statement of the receipts and
disbursements of any and all moneys and properties that have
65S Revorr or Joiner Lecistarive CoMMITrEes

come into hand covering the whole of the period for which the
accounting is asked. A summary statement shall be included in
the account and all vouchers shall be filed therewith.

3. Notice of the filing of such account pursuant to such order
and of an application for the judicial settlement thereof shall be
given in the manner in which and to the persons to whom notice
of application for the appointment of a committee of the person
or property of an alleged incompetent person, lunatic, idiot or
habitual drunkard is required to be given by this article [title six
of chapter seventeen of the code of civil procedure].

4, Upon the return day of the notice of such application, the
court shall have the power to appoint a referee to take and state
such account and to report to the court with his opinion thereon
as to all matters embraced in said account.

5. The court shall have power and it shall be its duty to appoint
a suitable person as special guardian of the incompetent person:
for the protection of his rights and interests in said proceeding.

6. Upon the motion for a confirmation of the report of a referee
appointed pursuant to the provisions hereof, or, if the accounting
be had before the court, upon the court’s determination, said
account shall be then judicially adjusted, determined, fixed and
filed.

7. The compensation of the referee and of the special guardian
appointed under the provisions of this [chapter] section shall in
every instance be fixed by the court to be paid out of the estate, if
any, of the incompetent person.

8. The judicial settlement of the final account of a committee
shall be made in the same manner, so far as may be applicable,
as provided in this section for the judicial settlement of an inter-
mediate account.

[Code § 2342, pt., without change of substance. Included by Board in Civil
Rights Law, § 180.]

§ 1397. Restoration of property. Where a person with
respect to whom a committee is appointed, as prescribed in
this article [title], becomes competent to manage himself or his
affairs, the court must make an order discharging the committee
of his property, or the committee of his person, or both, as the
case requires, and requiring the former committee to restore to
him the property remaining in the committee’s hands. There
upon the property must be restored accordingly.

[Code § 2843, without change. Included by Board in Civil Rights Law, §
181.)
Crvin Practicrn Act 659

§ 1398. Death of incompetent; duty of committee. Where
a person, of whose property a committee has been appointed,
as prescribed in this article [title], dies during his incompetency,
the power of the committee ceases; and the property of the
decedent must be administered and disposed of as if a commitiee
had not been appointed. The committee [may], in such case,
may render to the court by which he was appointed a final account
of his proceedings touching the property of the incompetent.
[Such account shall contain an inventory in the form prescribed
by section twenty-six hundred and sixty of this act and a full and
true account in form of debtor and creditor of all his receipts and
disbursements, and there shall be appended thereto an affidavit
of the committee in the form prescribed by section twenty-six
hundred and sixty-one of this act. Notice of the application
for settlement of such account shall be given, in such manner as
the court may direct, to the sureties on the official bond of the
committee or the legal representatives of such sureties, and to
the executor or administrator of the decedent, if any; and if there
be no executor or administrator, to the decedent’s hushand or
wife, and heirs and next of kin, or if any of those persons shall
have died, to his executor or administrator. [Such account shall
be judicially settled, adjusted and determined and, as to the
proofs and vouchers in support thereof, shall be subject to the
provisions of article one of title five of chapter eighteen of this
act with respect to the accounting of executors and
administrators. ]

[Code § 2344. The omitted portions are covered by the preceding sections
of this article, relating to intermediate accounting, which is made applicable
also to a final accounting.]

§ 1399. Jurisdiction of supreme court over contracts of
incompetents. The supreme court shall have authority to decree
and compel the specific performance of any bargain, contract or
agreement which may have been made by any idiot, lunatic or
habitual drunkard, while such person was capable to contract, and
of any contract in relation to lands made by the ancestor of such
person from whom such person inherits or takes as devise or
otherwise; and to direct the committee of such persen to do and
execute all necessary conveyances and acts for that purpose; and
in case the person entitled to such conveyance is the committee of
such incompetent person, the said court [may], upon the petition
of such committee, may appoint some suitable and proper person
660 Revort or Jomvt Liecistarivi CoMMITrEe

to execute the said conveyance in the name of such incompetent
person, upon payment by the vendee of any sum remaining due
to, such person upon said contract, or upon the fulfillment of the
contract on the part of the party who contracted with the person
represented by said committee.

[Code § 2344-a, without change. Included by Board in Judiciary L., § 170-a,
under general powers of Suprense Court.]

ARTICLE 83

PROCEEDING FOR DISPOSITION OF REAL
PROPERTY OF INFANT OR INCOMPETENT

Section 1400.
1401.
1402.
1408.

1404,
1405.
1406.

1407.
1408.

1409.
1410.
1411,
1412.

1418.
1414,
1415.
1416.
1417.
1418.
1419.

1420.

Action to compel conveyance.

Who may maintain action.

Judgment; effect thereof.

Application to dispose of real property or an inter-
est therein.

Who must make pplication.

Infant deemed a ward of court.

Appointment of committee of incompetent pre
requisite to grant of application.

Application by husband to release inchoate right
of dower of incompetent.

Security of committee or special guardian of
incompetent.

Special guardian for infant.

Reference to inquire into the application.

Final order.

Report and confirmation of agreement and of
conveyance,

When particular estates to be included in sale.

When reversionary estates to be included in sale.

Sale contrary to will or conveyance prohibited.

Effect of deed, mortgage, release or lease.

Proceeds of sale deemed real property.

Disposition of proceeds generally; accounting.

Disposition of proceeds exceeding five hundred
dollars.

Payment of proceeds of sale of property of non-
resident infant.
Crvin Practice Act 661

Section 1421. Debts of infant or incompetent to be paid equally.
1422. Contingent interest in proceeds of infant not in
being.
1423. Disposition of proceeds in case of death of infant
or incompetent.
1424. Proceedings upon release of inchoate right of
dower.

§ 1400. Action to compel conveyance. [In either of the fol-
lowing cases, an action may be maintained against an infant, or
a person incompetent to manage his affairs by reason of lunacy,
idiocy or habitual drunkenness, to procure a judgment directing
a conveyance of real property or of an interest in real property:

1. Where the infant or incompetent person is seized or pos-
sessed of the real property, or interest in real property, by way of
mortgage, or only in trust for another.

2. Where a valid contract for the sale or conveyance of the real
property or interest in real property has been made, but a con-
veyance thereof cannot be made by reason of the infancy or incom-
petency of the person in whom the title is vested.

[Code § 2345, without change. Included by Board in Real Property Law,

§ 615 and combined with § 2348, which is a proceeding in behalf of the infant
or incompetent.]

§ 1401. Who may maintain action. An action may be
maintained, in a case specified in the last section, by a person
entitled to the conveyance; and, also, in a case specified in sub-
division second of that section, by the executor or administrator of
the person who made the contract, or of a person who died seized
or possessed of the real property or interest in real property, or by
an heir or devisee of either of those persons, to whom the real
property has descended or was devised. The action may be main-
tained by the committee of the lunatic or other incompetent per-
son; but in that case the court must appoint a special guardian for
the incompetent person as prescribed by law where an infant is
defendant, and the proceedings are the same as in a like action
against an infant.

[Code § 2346, without change. Included by Board in rule 120, subds. 1
and 2.)

§ 1402. Judgment; effect thereof. A judgment directing
such conveyance shall not be rendered, unless the court, after
662 Report or Jornt Lratsiative Commirrrr

hearing the parties, is satisfied that the conveyance ought to be
made. Upon rendering final judgment to that effect, the court has
power to direct the guardian of the infant’s property, or the com-
mittee of the property of the lunatic or other incompetent person,
or a special guardian appointed in the action, to execute any con-
veyance, or to do any other act, which is necessary in order to
carry the judgment into effect.

[Code § 2347, without change. Included by Board in Real Property Law,
§ 625, with the application broadened to include cases covered by § 2348, which

under the Board’s plan are commenced as actions upon a short summons to
appear.)

§ 1403. Application to dispose of real property or an in-
terest therein. In either of the following cases, real property
or a term, estate or other interest in real property, of an infant in
being, or the contingent interest therein of an infant not in being, or
of a person incompetent to manage his affairs by reason of lunacy,
idiocy or habitual drunkenness, or an inchoate right of dower in
real property belonging to an infant or an incompetent person or
the possibility that upon breach of a condition a right of re-entry
will vest in or real property will revert to an infant or an incom-
petent person or his heirs solely or in common with others, may be
sold, conveyed, mortgaged, released or leased as prescribed in the
following sections of this article [title]:

1. Where the personal property, [and] together with the
income of the real property, of the infant or incompetent person
are[_, together,] insufficient for the payment of his debts or for
the maintenance and necessary education of himself and his
family.

2. Where the interest of the infant in being or the contingent
interest of an infant not in being, or the interest of an incom-
petent person, require or will be substantially promoted by such
disposition, on account of the real property or term, or estate, or
other interest in real property being exposed to waste or dilapida-
tion; or being wholly unproductive, or for the purpose of raising
funds to preserve or to improve the same, or for other peculiar
reasons, or on account of other peculiar circumstances.

8. Where an action might be maintained against the infant or
incompetent person to procure a judgment directing the con-
veyance of the real property, or interest in real property, as pre-
scribed in the preceding sections [twenty-three hundred and forty-
five and twenty-three hundred and forty-six] of this article [act].
Crvin Practicr Act 663

4. Where the interest of the infant or incompetent person will
be substantially promoted by releasing or joining with others in
releasing for a valuable consideration the possibility that upon
breach of a condition a right of re-entry will vest in or real prop-
erty will revert to the infant or incompetent person or his heirs
solely or in common with others. Such possibility is referred to
in the following sections of this [title] article as a possibility of
reverter.

[Code § 2348, without change of substance. Included by Board in Real

Property Law, § 615, whereby the proceeding is converted into an action
commenced by service of a short summons to appear.]

§ 1404. Who must make application. An application, in
either of the cases prescribed in the last section, must be made
by the petition of the general guardian or the guardian of the
property of the infant; or by the committee of the property of the
lunatic or other incompetent perron; or by any relative or other
person in behalf of either. Where the application is in behalf of
an infant of the age of fourteen years or upwards, the infant must
join therein.

[Code § 2349, first two sentenves without change. Included by Board in
rule 120. Remainder of section included in subsequent sections or rules.]

§ 1405. Infant deemed a ward of court. From the time
of the filing of a petition, by or in behalf of an infant, praying for
an order directing a conveyance, or a sale, mortgage or lease of
his real property, or of an interest in real property, the infant is
considered a ward of the court with respect to that real property
or interest and the income and proceeds thereof.

[Code § 2360, without change. Included by Board in Domestic Relations
Law, § 66.]

§ 1406. Appointment of committee of incompetent pre=
requisite to grant of application. An application to sell, mort-
gage, release or lease real property, or an interest in real property,
of a lunatic, idiot or habitual drunkard, cannot be granted unless
a committee of his property has been appointed.

[Code § 2351, first sentence, without change.]

§ 1407. Application by husband to release inchoate right
of dower of incompetent. Where an application is made
664 Report or Jormnt Leaisuative ComMItrEer

to release an inchoate right of dower, application must be made by
the husband of the lunatic, idiot or habitual drunkard and may be
made before or after a committee has been appointed, except that
application may be made by the committee of the property of the
lunatic, idiot or habitual drunkard in any case where, at the time
of the application, the property to which the inchoate right of
dower attaches has already been sold by the husband, and the wife
has not joined in the conveyance or otherwise released her inchoate
right of dower. When the application is made by the husband, the
court may appoint him special guardian, and he must give security
tor the faithful performance of the trust [file a bond as herein
provided].

[Code § 2351, pt., without change of substance. Included by Board in rule
120.)

§ 1408. Security of committee or special guardian of
incompetent. Upon [such] an application to sell, mortgage,
release or lease real property, or an interest in real property of a
lunatic, idiot or habitual drunkard, if it is made by the committee,
the committee must give security [the court must make an order,
directing him to file with the clerk, a bond, with either individual
or corporate surety, approved by the court as to form, amount and
sufficiency of surety,]] conditioned for the faithful discharge of his
trust; for the paying over and investing of, and accounting for, all
moneys received by him in the special proceeding, according to the
direction of any court having authority to give directions in the
premises; and for the observance of the directions of the court in
relation to the trust. If the application is made by any other per-
son, an order must be made thereupon requiring the committee to
show cause why he should not give such security [file such a bond].
If, after hearing the committee, the court is of the opinion that
there is a probable cause for granting the application, it may make
an order requiring the committee to give such security [file such
a bond]; or, if the committee so elects, or fails to give security
[file the bond] as directed in the order, it may appoint a suitable
person to be the special guardian of the incompetent person with
respect to the proceedings, who must thereupon give such security
[file such a bond].

[Code § 23511, pt., without change of substance. The security required and
the forms and requisites of the Board, prescribed by proposed rule 231, pro-
posed code § 238 of committee’s report.]
Crvin Practice Acr 665
§ 1409. Special guardian for infant. Upon an application
to sell, mortgage, release or lease real property or an interest
in real property of an infant, the court must appoint a suitable
person to be the special guardian of the infant with respect to the
' proceedings, who must thereupon give security for the faithful
performance of his trust [file with the clerk a bond as prescribed in
the last section]. Any trust company authorized by the laws of
this state to act as general guardian of the estate of an infant with-
out giving security may be appointed such special guardian and in
such case the court in the order of appointment may dispense with
the giving thereof [and filing of any such bond].

[Code § 2352, without change of substance. See proposed code § 238, as to
nature of security.]

§ 1410. Reference to inquire into the application. Upon
the presentation of the petition, and the filing of the bond or
undertaking where the filing of such a bond or undertaking shall
be necessary, the court must make an order appointing a suitable
person a referee to inquire into the merits of the application. The
referee must examine into the truth of the allegations of the
petition, hear the allegations and proofs of all persons interested
in the property, or otherwise interested in the application, and
report his opinion thereupon, together with the testimony, with all
convenient speed.

[Code § 2354, without change of substance. Omitted by Board as covered by
general provisions. ]

§ 1411. Final order. Upon the filing of the referee’s
report, and after examining into the matter, the court must make
a final order upon the application. In a proper case, a final order
confirming the referee’s report must direct that the real property,
or term, estate, possibility of reverter or other interest in real
property, or a part thereof, or an inchoate right of dower therein,
as is necessary or as justice requires, be mortgaged, let for a term
of years, sold, released or conveyed by the special guardian
appointed as prescribed in this article [title] or by the committee
of the property of the lunatic or other incompetent person. The
final order must also contain such directions respecting the time,
manner and conditions of the sale, release or conveyance directed
thereby, as the court thinks proper to insert therein.

[Code § 2855, without change.]
666 Revorr ov Jouwy Lecistarive Comaurrrer:

§ 1412. Report and confirmation of agreement and of
conveyance. Before a sale, mortgage, release or lease can be
made pursuant to the final order, the special guardian or the com-
mittee must enter into an agreement therefor, subject to the
approval of the court, and must report the agreement to the court
under oath. Upon the confirmation thereof by the order of the
court, he must execute, as directed by the court, a deed, mortgage,
release or lease. Where the final order directs the execution of a
conveyance in the first instance for the purpose of fulfilling a
contract, or because the property is held by way of mortgage, or in
trust only, the guardian or committee executing the conveyance
must report the conveyance to the court under oath.

[Code § 2356, without change. Included by Board in Real Property Law,
§ 616.]

§ 1413. When particular estates to be included in sale.
Where the real property, or the estate, term or other interest in
real property, directed to be sold, is subject, absolutely or con-
tingently, to a right of dower or an estate for life, or is subject to
an estate for years, in the whole or any part thereof, the person
having the prior right or estate may manifest in writing his con-
sent, either to receive from the proceeds of the sale a gross sum
te be fixed according to the principles of law applicable to annui-
ties, in satisfaction of his right cr estate, or to have a proportion-
ate share of the proceeds of the sale invested, and the interest
thereof paid to him, from the time of the investment or of the
commencement of his right or estate, as justice requires, until the
determination of his right or estate. Upon filing the consent with
the clerk, the final order [may], in the discretion of the court,
may direct a sale of the entire property to which the right or estate
attaches. In such a case, the court [must], after the sale, must
ascertain the value of the right or interest of the person so con-
senting; and the final order either must [either] direct the pay-
ment, from the proceeds of the sale, of the gross sum so ascertained
as the value, or the investment of a just proportion of the proceeds
and the payment to him of the interest thereof. But such a gross
sum shall not be paid, nor shall such an investment be made, until
an effectual release of the right or estate of the person so consent-
ing, executed to the satisfaction of the court, and duly acknowl-
edged or proved, and certified, in like manner as a deed to be
recorded in the county, has been filed with the clerk.

[Code § 2362, without change. Included by Board in Real Property Law,
§ 624.) |
Crvin Practices Act 667

§ 1414. When reversionary estates to be included in
sale. Where the interest of the infant, or of the lunatic or
other incompetent person, consists of a right of dower or an estate
for life, or for years, the final order may authorize the special
guardian or committee to join, with the person or persons holding
the reversionary estate, in a conveyance of the property to which
the interest attaches, so as to release the right of dower, or fully
convey the particular estate, on receiving from the proceeds of
the sale a gross sum in satisfaction of that interest, or a propor-
tionate part of the proceeds, to be invested until the determination
of the particular estate; and, in either case, to be ascertained as
prescribed in the last section. Where a proportion of the proceeds
is so received by the guardian or committee for investment, the
final order must provide for the investment thereof until the
determination of the particular estate, and then for the payment
thereof to the person entitled thereto.

[Code § 2363, without change. Included by Board in Real Property Law,
§ 626.]

§ 1415. Sale contrary to will or conveyance prohibited.
Real property, or an interest in real property, shall not be sold,
leased or mortgaged, as: prescribed in this article [title], con-
trary to the provisions of a, will by which it was devised, or of a
conveyance or other instrument by which it was transferred, to the
infant or incompetent person.

[Code § 2357, without change. Included by Board in Real Property Law,
§ 617.)

§ 1416. Effect of deed, mortgage, release or lease. A
deed, mortgage, release or lease made in good faith, as prescribed
in this article [title], either upon an application in behalf of the
infant or an incompetent person, or pursuant to the directions con-
tained in a judgment rendered against him, has the same validity
and effect as if executed by the person in whose behalf it was
executed, and as if the infant was of full age or the lunatic, idiot,
or habitual drunkard was of sound mind and competent to manage
his or her affairs. [And] The same shall be valid and effectual to
vest in any purchaser or purchasers any interest therein of any
infant not in being at the time of the said sale, and any mortgage
so executed shall be a valid lien and charge upon the contingent
interest of any infant not in being at the time of the execution
668 Rerorr or Joins Lecisnative ComMirree

and delivery of the same. [And] A release of an inchoate right
of dower as authorized by this article [title] shall have the same
effect as if the wife had joined with the husband in a deed or con-
veyance of the property affected thereby and had duly acknowl-
edged the same in the manner required by law to pass the estate of
married women.

[Code § 2358, without change of substance. Included by Board in Real
Property Law, § 277.]

§ 1417. Proceeds of sale deemed real property. A sale
of real property, or of an interest in real property ether than a
possibility of reverter, of an infant or incompetent person, made
as prescribed in this article [title], does not give to the infant or
incompetent person any other or greater interest in the proceeds
of the sale than he or she had in the property or interest sold.
Those proceeds are deemed property of the same nature as the
estate or interest sold until the infant arrives at full age or the
incompetency is removed. The proceeds of the release of a pos-
sibility of reverter shall be deemed and treated as if they were
proceeds of real property of which the infant was seized and pos-
sessed.

[Code § 2359, first three sentences, without change. Included by Board in
Real Property Law, § 618.)

§ 1418. Disposition of proceeds generally; accounting. The
court [must], by order, must direct the disposition of the proceeds
of such a sale, mortgage, release or lease. It must direct the invest-
ment of any portion thereof belonging to the infant or incom-
petent person which is not needed for the payment of debts, or
the safekeeping, or the immediate maintenance and education of
himself or his family, or for the preservation or improvement of
his real property or his interest in real property. It must require
a report, under oath, of the disposition and investment thereof to
be made as soon as practicable, and must compel periodical
accounts to be rendered thereafter by each person who is intrusted
with the proceeds or any part thereof.

[Code § 2361, pt., without change. Included by Board in Real Property
Law, § 619.]

§ 1419. Disposition of proceeds exceeding five hundred
dollars. If the proceeds of the sale of real property, or interest in
Crvit Practice Act 669

real property, of an infant, exceed five hundred dollars, and the
guardian has not given security by mortgage upon real estate,
he shall bring the proceeds into court, or invest the same under
the direction of the court, for the use of the infant; and the
guardian shall [only] be entitled to receive only so much of the
interest or income thereof, from time to time, as may be necessary’
for the support and maintensnes of the infant, without the order
of the court.

(General Rule of Practice 58, pt., without change.]

§ 1420. Payment of proceeds of sale of property of
non-resident infant. In the case of an infant residing without
the state, and having in the state or country where he or she resides
a general guardian or person duly appointed under the laws of
such state or country to the control, and entitled by the laws of
such state or country to the custody, of the money of said infant,
the court, upon satisfactory proof of such facts and of the sufficiency
of the bond or security given by such general guardian or person
in such state or country, by the certificate of a judge of a court
record of such state or country, or otherwise, may direct that the
portion of such infant arising upon [such] a sale pursuant to this
article shall be paid over to such general guardian or person.

[Code § 2361, pt., without change of substance. Included by Board in Real
Property Law, § 619.]’

§ 1421. Debts of infant or incompetent to be paid equally.
In the application of money arising from a sale, mortgage or lease
made for the purpose of paying debts, as prescribed in this article
[title], the special guardian of the infant or the committee of the
property of the incompetent person must pay all debts, in equal
proportion, without giving a preference to a debt founded upon
a specialty or upon which judgment has been taken.

[Code § 2364, without change. Included by Board in Real Property Law,
§ 620.]

§ 1422. Contingent interest in proceeds of infant not in

being. In case by any contingency, infants not in being may there-
after become possessed of any interest in [said] premises [so]
sold, mortgaged or leased pursuant to this article, the court, in case
of a sale, shall cause the proceeds of the sale, after paying de costs
and expenses of the same, to be placed at interest for the benefit of
670 Reporr or Jornt Leatstative Commirrer

the persons who are or who ultimately may [ultimately] be en-
titled to the same, and: shall not authorize the distribution of the
same in advance of said contingency, except upon a petition of
some person entitled thereto and upon filing a bond in such penalty
as the court shall direct, with two or more sureties approved by the
court, and conditioned that in case of any contingency by which
any infant not then in being shall thereafter become entitled to any
of the proceeds of the sale, that said petitioner will pay to said
person or persons his or their proportionate share of the money so
paid over to said petitioner; and in the case of the mortgaging of
said real estate, the proceeds of the same, after paying costs and
expenses, shall be paid out and disbursed under the direction of
the court only for the purpose of paying lawful charges thereon, or
repairing, improving, building upon or otherwise enhancing in
value any real estate so mortgaged as aforesaid.

[Code § 2361, pt., without change. Included by Board in Real Property
Law, § 619.] :

§ 1423. Disposition of proceeds in case of death of
infant or incompetent. If the infant should die before arriving
at full age, or the incompetent person should die before the incom-
petency is removed not leaving any personal property, or not leav-
ing sufficient personal property to pay funeral expenses and
expenses that may be necessary or necessarily incurred, then in
either or each case, the proceeds are to be deemed personal property
so far as may be necessary to pay the funeral and other necessary
expenses. The. proceeds are to be paid, upon order of the sur-
rogate’s court or court having jurisdiction of the estate of the
deceased, to an administrator appointed by the surrogate to
administer upon decedent’s estate, and after paying all funerai
expenses and expenses of administration and any indebtedness, the
remainder, if any there be, [shall,J] upon the order of the surro-
gate, shall be paid into the lenis of the trustee who held the same,
to be distributed as the law directs. [This act is to include the
said proceeds of any infant or incompetent person that has died
prior to this amendment, the proceeds now remaining in the hands
of a trustee.]

[Code § 2359, pt., without change of substance. Included by Board in Real
Property Law, § 618. The last sentence was added in 1892 and seems to be
now obsolete. ]
Cryin Praocrtor Act OT1

§ 1424. Proceedings upon release of inchoate right of
dower. Where an inchoate right of dower is released as pre-
scribed in this article [title] and such release is to accompany a
sale by the husband of the property to which the inchoate right of
dower attaches, the court shall make an order requiring one-third
of the amount realized on the sale of the property to which the
inchoate right of dower attached to be invested -by the special
guardian, or paid into the court to be held for the benefit of the
husband during his life and upon his death for the benefit of the
wife during her life, or the court may direct said amounts to be
paid to the husband upon his giving a bond in the penalty of at
least double the amount so received for such release, with at least
two sureties, who shall justify in double the amount of such
penalty, conditioned for the repayment as the court shall direct by
his executors or administrators of such amount upon the death of
the husband. Where an inchoate right of dower is released as pre-
scribed in this article [title], and, at the time of the application,
the property to which the inchoate right of dower attaches has
already been sold by the husband, and the wife has not joined in
the conveyance or otherwise released her inchoate right of dower,
the court shall make an order that, as the consideration for the
release, or as part of the consideration therefor, there be paid to
the special guardian or into the court an amount to be fixed by
the court as equal to one-third of the fair market value of the
property, to be invested by the special guardian or held by the
court for the benefit of the person making such payment during
the life of the husband, and upon his death for the benefit of the
wife during her life, and upon her death to be returned to the
person making such payment or to his executors, administrators
or assigns; or in lieu of such payment, the court may allow a bond
to be given in the penalty of at least double the amount so fixed
as equal to one-third of the fair market value of the property, with
at least two sureties, who shall justify in double the amount of
such penalty, conditioned for the payment as the court shall
direct, upon the death of the husband leaving the wife surviving,
of the said sum so fixed as equal to one-third of the fair value of
the property, to be held for the benefit of the wife during her life
and upon her death to be returned to the person giving such bond
or to his executors, administrators or assigns.

[Code § 2361, pt., without change. Included by Board in Real Property
Law, § 619.]
672 Rerort or Joint LecisinarivE CoMMITTEE

ARTICLE 84
ARBITRATION

Section 1425. Submission to arbitration.
1426. Contents of submission.
1427. Appointment of additional arbitrator or umpire.
1428. Hearings by arbitrators.
1429. Oath of arbitrators.
1430. Powers. of arbitrators.
1431. Fees and expenses of arbitrators.
1432. Requirements as to award.
1433. Motion to confirm award.
1434. Motion to vacate award.
1485. Motion to modify or correct award.
1436. Notice of motion and stay.
1487. Costs on vacating award.
1438. Entry of judgment on award and costs.
1439. Judgment-roll.
1440. Effect of judgment and enforcement.
1441. Appeals.
1442. Death or incompetency of party.
1443. Revocation of submission.
1444, Liability of revoking party.
1445, Limitation of recovery against revoking party.
1446. Application of this article.

§ 1425. Submission to arbitration. Hacept as otherwise pre-
scribed in this section, two or more persons may submit to the
arbitration of one or more arbitrators any controversy exist-
ing between them at the time of the submission, which may be the
subject of an action.

A submission of a controversy to arbitration cannot be made,
either as prescribed in this [title] article or otherwise, in either
of the following cases:

1. Where one of the parties to the controversy is an infant,
or a person incompetent to manage his affairs by reason of lunacy,
idiocy or habitual drunkenness.

2: “Where the controversy arises respecting a claim to an estate
in real property, in fee or for life.

But where a person capable of entering into a submission has
knowingly entered into the same with a person ineapable of so
Crvin Practice Act 673

doing, as prescribed in subdivision first of this section, the
objection on the ground of incapacity can be taken only in behalf
of the person so incapacitated.

[And the] The second subdivision of this section does not
prevent the submission of a claim to an estate for years, or other
interest for a term of years, or for one year or less, in real prop-
erty; or of a controversy respecting the partition of real property
between joint tenants or tenants in common; or of a controversy
respecting the boundaries of lands or the admeasurement of dower.

[Code § 2365. First sentence is taken from Code § 2366. See Board’s
proposed Civil Rights Law, § 33. ‘The Board omitted the prohibition against
arbitration in controversies affecting real estate. ‘The Board re-wrote the
subject of arbitrations placing all of its sections in Civil R’ghts Law as
§§ 33-35, and having one rule which dealt with the form of a submission, its
docketing and the judgment-roll. See Board’s proposed rule 3. The Board
made many changes in the proceeding and omitted many sections. The Com-
mittee has retained the Code sections practically as they now exist. Arbitra-
tions are now carried on under the Code with no complaint from any source.
che New York State Chamber of Commerce carries on arbitrations based upon
written submissions as provided in the Code with regulations in the by-laws
of the chamber and by the committee on arbitration. The New York State
Bar Association has a carefully prepared list of official arbitrators. A special
committee has for several years been considering the subject of conciliation
and arbitration and many excellent ideas have Leen adopted. No criticism,
however, was made of Code provisions. They outline a fixed and simple
method of procedure. ]

§ 1426. Contents of submission. Except as otherwise pre
scribed in the last section, two or more persons may, by an
instrument] 1 submission authorized by the last section shall be
in writing, duly acknowledged or proved, and certified, in like
manner as a deed to be recorded{[, submit to the arbitration of
one or more arbitrators, any controversy, existing between them
at the time of the submission, which might be the subject of an
action. They may, in the}. The submission[[, agree] may pro-
vide that a judgment of a specified court of record[[, specified in
the instrument, shall be rendered upon the award made pursuant
to the submission. If the supreme court is thus specified, the
submission may also specify the county in which the judgment
shall be entered. If it does not, the judgment may be entered in
any county.

[Code § 2366. The bracketed matter has been inserted in Code § 2365.
The Board covered part of the section in the proposed rule 3 and also in its
proposed Civil Rights Law, § 34.]

22
674 Report or Jornr LeeisirativeE CoMMITTEE

§ 1427. Appointment of additional arbitrator or umpire.
Where a submission is made as prescribed in this [title]
article, an additional arbitrator or an umpire cannot be selected or
appointed unless the submission expressly so provides. Where a
submission, made either as prescribed in this [title] article or
otherwise, provides that two or more arbitrators therein desig-
nated may select or appoint a person as an additional arbitrator,
or as an umpire, the selection or appointment must be in writing.
An additional arbitrator or umpire must sit with the original
arbitrators upon the hearing. If testimony has been taken before
his selection or appointment, the matter must be reheard, unless
a rehearing is waived in the submission or by the subsequent
written consent of the parties or their attorneys.

[Code § 2367.]

§ 1428. Hearings by arbitrators. Subject to the terms of
the submission, if any are specified therein, the arbitrators selected
as prescribed in this [title] article must appoint a time and place
for the hearing of the matters submitted to them, and must cause
notice thereot to be given to each of the parties. They, or a
majority of them, may adjourn the hearing from time to time
upon the application of either party for good cause shown or upon
their own motion, but not beyond the day fixed in the submission
for rendering their award, unless the time so fixed is extended
by the written consent of the parties to the submission or their
attornevs.

[Code § 2368. Omitted by Board.]

§ 1429. Oath of arbitrators. Before hearing any testi-
mony, arbitrators selected either as prescribed in this [title]
article or otherwise must be sworn, by an officer [designated in
section 842 of this act] authorized by law to. administer
an oath, faithfully and fairly to hear and examine the matters in
controversy and to make a just award according to the best of
their understanding, unless the oath is waived hy the written con-
sent of the parties to the submission or their attorneys,

[Code § 2369. Omitted by Board.]

§ 1430. Power of arbitrators. The arbitrators selected
either as prescribed in this [title] article’ or otherwise. or a
majority of them, may require any person to attend before them
‘Crvit Practice Act 675

as a witness; and they have, and each of them has, the same
powers with respect to all the proceedings before them which
are conferred[, by the provisions of title second of chapter ninth
of this act,J upon a board or a member of a board authorized
by law to hear testimony. All the arbitrators selected as pre-
scribed in this [title] article must meet together and hear all
the allegations and proofs of the parties; but an award by a
majority of them is valid unless the concurrence of all is expressly
required in the submission.

[First sentence is Code § 2370. Last sentence is the first sentence of Code
§ 2371. The first sentence was covered by the Board in its proposed Civil
Rights Law, § 34. The last sentence was omitted by the Board.]

§ 1431. Fees and expenses of arbitrators. (All the
arbitrators, selected as prescribed in this title, must meet
together, and hear all the allegations and proofs of the parties;
but an award by a majority of them is valid, unless the concurrence
of all is expressly required in the submission.] Unless it is
otherwise expressly provided in the submission,*the award may
require the payment, by either party, of the arbitrators’ fees, not
exceeding the fees allowed to a lke number of referees in the
supreme court; and also their expenses.

[Code § 2371. The first sentence has been included in the preceding section.
The section was omitted by the Board.]

§ 1432. Requirements as to award. To entitle the award
to be enforced, as prescribed in this [title] article, it must
be in writing; and, within the time limited in the submission, if
any, subscribed by the arbitrators making it; acknowledged or
proved, and certified, in like manner as a deed to be recorded;
and either filed in the office of the clerk of the court in which,
by the submission, judgment is authorized to be entered upon the
award, or delivered to one of the parties or his attorney.

[Code § 2372. Partly covered by the Board in its proposed rule 3.]

§ 1433. Motion to confirm award. At any time within
one year, after the award is made, as prescribed in the last section,
any party to the submission may apply to the court specified in
the submission for an order confirming the award; and thereupon
the court must grant such an order unless the award is vacated,
modified or corrected, as prescribed in the next two sections,
Notice of the motion must be served upon the adverse party to
the submission, or his attorney, as prescribed by law for service
676 Report or Joint Leatsuative ComMMiItTEee

of notice of a motion wpon an attorney in an action in the same
court. In the supreme court, the motion must. be made within
the judicial district embracing the county where the judgment is
to be entered. :

[Code § 2373. Omitted by the Board.]

§ 1434. Motion to vacate award. In either of the fol-
lowing cases, the court specified in the submission must make an
order vacating the award, upon the application of either party
to the submissiom:

1. Where the award was procured by corruption, fraud or other
undue means.

2. Where there was evident partiality or corruption in the
arbitrators. or either of them.

3. Where the arbitrators were guilty of misconduct in refusing
to postpone the hearing upon sufficient cause shown, or in refusing
to hear evidence pertinent and material to the controversy; or of
any other misbehamior by which the rights of any party have been
prejudiced.

4. Where the arbitrators exeeeded their powers, or so imper-
fectly executed them, that a mutual, final and definite award upon
the subject-matter submitted was not made.

Where an award is vacated, and the time within which the sub-
mission requires the award to be made has not expired, the conrt
fimav J, in its discretion, may direct a rehearing by the arbitrators.

(Code § 2874. Covered by the Board in its proposed Civil Rights Law, §
33, except that the provision for re-hearing was omitted.]

§ 1435. Motien to modify or cerrect award. In either
of the following cases, the court specified in the submission must
make an order modifying or correcting the award, upon the appli-
cation of either party to the submission:

1. Where there was an evident miscalculation of figures, or an
evident ruistake im the description of any person, thing or property
referred to in the award. ‘

2. Where the arbitrators have awarded upon a matter not sub-
mitted to them, not affecting the merits of the decision upon the
matters submitted.

3.. Where the award is imperfect in a matter of form not affect-
ing the mertts: of the controversy, and, if it had been a referee’s
report, the defect could have been amended or disregarded by the
court.
(Civin Practice Act OTT

The order may modify and correet the award so as to effect the
itent thereot and promote justice between the parties.

[Code § 2375. Covered by Board in its proposed ‘Civil Rights Law, § 34.]

§ 1436. Notice of motion and stay. Notice of a motion
to vacate, modify or correct an award must be served upon the
adverse party to the submission, or his attorney, within three
months after the award is filed or delivered, as prescribed by law
for, service of notice of a motion upon an attorney in an action.
For the purposes of the motion, anv judge who might make an
order to stay the proceedings in an action brought in the same
eourt may make an order, to be served with the notice of motion,
staying the proceedings of the adverse party to enforce the award.

[Code § 2376. Omitted by Board.]

§ 1437. Costs on vacating award. Where the court vacates
an award, costs, not exceeding twenty-five dollars and disburse-
ments may be awarded to the prevailing party; and the payment
thereof may be enforced in ike manner as the payment of costs
upon a motion im an action,

[Code § 2377. Omitted by Board.]

§ 1438. Entry of judgment on award and costs, Upon
the grantmg of an order confirming, modifving or correcting an
award, judgment may be entered in conformity therewith, as upon
a referee's report in an action, except as is otherwise prescribed in
this [title] article. Costs of the application and of the proceedings
subsequent thereto, not exceeding twenty-five dollars and disburse
ments, may be awarded by the court in its discretion. If awarded,
the amount thereof must be included in the judgment.

[Code § 2378. Omitted by Board.]

§ 1439, Judgment-roll. Immediately after entering judg-
ment, the clerk must attach together and file the followmg papers,
which constitute the judgment-roll :

1. The submission; the selection or appointment, if amy, of an
additional arbitrator, or umpire; and each written extension ot
the time, if any, within which to make the award.

2. The award.
678 Rerorr or Jornr LeGisnativE CoMMITTEE

3. Each notice, affidavit or other paper used upon an applica-
tion to confirm, modify or correct the award, and a copy of each
order of the court upon such an application.

4. A copy of the judgment.

The judgment may be docketed as if it was rendered in an
action.

[Code § 2379. See Board’s proposed rule 3.]

§ 1440. Effect of judgment and enforcement. The judg-
ment so entered has the same force and effect, in all respects
as, and is subject to all the provisions of law relating to, a judg-
ment in an action; and it may be enforced as if it had been ren-
dered in an action in the court in which it is entered.

[Code § 2380. See Board’s proposed Civil Rights Law, § 33.]

§ 1441. Appeals. An appeal may be taken from an order
vacating an award, or from a judgment entered upon an
award, as from an order or judgment in an action. The proceed-
ings upon such an appeal, including the judgment thereupon and
the enforcement of the judgment, are governed by the provisions
[of chapter twelfth of this act,] of statute and rule regulating
appeals in actions as far as they are applicable.

[Code § 2381. The Board does not provide for any appeal except by con-
sent. See Board’s note 69 and its proposed Civil Rights Law, § 33, stating

that the award shall be final and binding upon the parties ‘‘ unless otherwise
provided in the submission.”]

§ 1442. Death or incompetency of party. The death of a
party to a submission, made either as prescribed in this [title]
article or otherwise, or the appointment of a committee of the per-
son or property of such a party[[, as prescribed in title sixth of
this chapter], operates as a revocation of the submission, if it
occurs before the award is filed or delivered; but not afterwards.
Where a party dies afterwards, if the submission contains a stipu-
lation authorizing the entry of a judgment upon the award, the
award may be confirmed, vacated, modified or corrected, upon the
application of, or upon notice to, his executor or administrator, or
a temporary administrator of his estate; or, where it relates to
real property, his heir or devisce who has succeeded to his interest
in the real property. Where a committee of the property or of
the person of a party is appointed after the award is filed or
(Crvin Pracrice Act 679

delivered, the award may be confirmed, vacated, modified or cor-
rected, upon the application of, or notice to, a committee of the
property, but not otherwise. In a case specified in this section, a
jadge of the court may make an order extending the time within
which such notice of a motion to vacate, modify or correct the
award must be served. Upon confirming an award, where a party
has died since it was filed or delivered, the court must enter judg-
ment in the name of the original party; and the proceedings there-
upon are the same as where a party dies after a verdict.

[Code § 2382. Section omitted by Board.]

§ 1443. Revocation of submission. A submission to arbi-
tration, made either as prescribed in this [title] article or other-
wise, cannot be revoked by either party after the allegations and
proofs of the parties have been closed and the matter finally
submitted to the arbitrators for their decision. A revocation,
when allowed, must be made by an instrument in writing signed
by the revoking party or his authorized agent and delivered to
the arbitrators, or one of them; and it is not necessary in any case
that the instrument of revocation should be under seal. Any party
to a submission may thus revoke it, whether he is a sole party to
the controversy or one of two or more parties on the same side.

[Code § 2383. Section omitted by Board.]

§ 1444. Liability of revoking party. Where a party ex-
pressly revokes a submission, made either as prescribed in this
[title] article or otherwise, any other party to the submission may
maintain an action against him and also against his sureties, if
any, upon the submission, or any instrument collateral thereto, in
which action the plaintiff may recover all the costs and other
expenses, and all the damages, which he has incurred in preparing
for the arbitration and in conducting the proceedings to the time
of the revocation. Either of the arbitrators may recover, in an
action against the revoking party, his reasonable fees and expenses.

[Code § 2384. Section omitted by Board.]

§ 1445. Limitation of recovery against revoking party.
A sum, penalty, forfeiture or damages shall not be recovered for
a revocation of a submission to arbitration, made either as pre
scribed in this [title] article or otherwise, except as prescribed
680 Rerorr or Joint LEGISLATIVE CoMMITTEE

in the last section; notwithstanding any stipulated damages,
penalty or forfeiture expressed in the submission or in any
instrument collateral thereto.

[Code § 2385. Section omitted by Board.]

§ 1446. Application of this article. This [title] article
does not affect any right of action in affirmance, disaffirmance, or
for the modification of a submission, made either as prescribed in
this [title] article or otherwise, or upon an instrument collateral
thereto, or upon an award made or purporting to be made in pur-
suance thereof. And, except as otherwise expressly prescribed
therein, this [title] article does not affect a submission made
ctherwise than as prescribed therein, or any proceedings taken
pursuant to such a submission, or any instrument collateral
thereto.

[Code § 2386. Section omitted by Board.]

ARTICLE 85

COSTS; ALLOWANCES AND AWARDING;
LIABILITY FOR

Section 1447. Plaintiff’s costs of course.

1448. Limitation of plaintiff’s costs in actions for tort or
fine or penalty.

1449. Limitation for plaintiffs costs in certain actions
for sum of money only.

1450. Limitation of plaintiffs costs in action to recover
chattel.

1451. Limitation of plaintiff’s costs by reason of bringing
action in higher court.

1452. Defendant’s costs of course.

1453. Defendant’s costs; when discretionary.

1454. When costs are discretionary.

1455. Costs where notice of no personal claim served.

1456. Costs, where several actions are brought instead of
one.

1457. Costs upon severance of action.

1458. Costs in case of transfer of cause of action.

1459, Interloeutory costs upon issue of law.
Section 1460.
1461.
1462.

1463.
1464.

1465.
1466.
1467.
1468.

1469.
1470.

1471.
1472.

1473.
1474.

1475.
1476.

1477.

1478.
1479.

1480.

(Criviz Practice Act 681

Costs, where plaintiff and defendant recover upon
separate issues.

Costs in new action after discontinuance in
inferior court upon answer of title.

Costs upon new trial ordered by reason of failure
to file decision on time.

Discretionary motion costs.

Costs on application for judgment on pleading as
frivolous.

Costs where scandalous matter is stricken out on
motion.

The foregoing sections limited.

Costs upon appeal from final judgment.

Costs upon appeal from interlocutory judgment or
order.

Costs in a special proceeding in a court of record.

Costs or fees where party prosecutes or defends as
poor person.

Costs against the state; how paid.

Costs where action brought by people on relation of
private person.

Costs in action or proceeding brought by people for
benefit of municipality.

Costs in action against a school officer or super-
visor.

Costs in action against municipal corporation.

Costs and disbursements in action against executor
or administrator.

Costs in action hy or against executor, adminis-
trator, trustee or person authorized by statute to
sue or be sued. °

Action bv surety or trustee to recover costs and
expenses.

Certificate entitling party to costs or increased
costs.

Effect of article on special statute.

§ 1447. Plaintiff’s costs of course. The plaintiff is entitled
to costs of course, upon the rendering of a final judgment in his
favor, in either of the following actions:
682 Report or Jowr Leaisnative ComMMITTEE

1. An action, triable by a jury, to recover real property or an
interest in real property; or in which a claim of title to real prop-
erty arises upon the pleadings or is certified to have come in ques-
tion upon the trial.

2. An action to recover a chattel. [But if the value of the
chattel, or of all the chattels, recovered by the plaintiff, as fixed,
together with the damages, if any, awarded to him, is less than
fifty dollars, the amount of his costs cannot exceed the amount of
the value and the damages. ]

[8. An action specified in subdivision first, third, fourth or
fifth of section twenty-eight hundred and sixty-three of this act.
But if, in an action to recover damages for an assault, battery,
false imprisonment, libel, slander, criminal conversation, seduc-
tion, or malicious prosecution; or a fine or penalty in which the
people of the state are a party, the plaintiff recovers less than fifty
dollars damages, the amount of his costs cannot exceed the
damages. ]

8. An action where the people of the state are a party.

4. An action to recover damages for an assault, battery, false
imprisonment, libel, slander, criminal conversation, seduction or
malicious prosecution.

5. An action founded on the spoliation or other misappropria-
tion of public property.

6. An action against an executor or administrator as such.

7. An action against the surviving husband or wife of a dece-
dent and the next of kin of an intestate, or the next of kin and
legatees of a testator, to recover to the extent of the assets paid.or
distributed to them for a debt of the decedent upon which an action
might have been maintained against the executor or administrator.

8. An action by an executor or administrator to recover dam-
ages for a wrongful act, neglect or default by which the decedent's
death was caused.

9. An action against the legatees or devisees to recover a share
of the property of a decedent by a subscribing witness to a will
or by a child born after the making. of the will.

10. An action against the heirs of an intestate or the heirs and
devisees of a testator to recover for the debts of the decedent aris-
ing by simple contract or by specialty.

[4.] 17. An action, other than one of those specified in the
foregoing subdivisions of this section, in which the ecmplaint
demands judgment for a sum of money only. [But the plaintiff
6o9
(Civitn Pracrice Act Odo

is not entitled to costs, under this subdivision, unless he recovers
the sum of titty dollars or more.

(5. 4n all actions hereafter brought in the supreme court, trr
abie in the county of New York, which could have been brought,
except for the amount claimed therein, in the city court of the
city of New York, aud in which the defendant shall have been
served with process within the county of New York, the plaimtitf
shall recover no costs or disbursements unless he shall recover one
thousand dollars or more. In all actions hereafter brought in the
supreme court, triable in the county of Kings, which could have
been brought, except for the amount claimed therein, in the county
court of Wings county, and in which the defendant shall have
been served with process within the county of Kings, the plaintitt
shall recover no costs or disbursements unless he shall recover
five hundred dollars or more. In all actions hereafter originally
brought in the supreme court, triable in the county of Albany,
and in which the defendant is a resident of the county of Albany,
which could have been brought, except for the amount claimed
therein, in the county court of the county of Albany, the plaintiff
shall recover no costs or disbursements unless he shall recover five
hundred dollars or more. In all actions hereafter originally
brought in the supreme court, triable in the county of Rensselaer,
and in-which the defendant is a resident of the county of Rensse-
laer, which could have been brought, except for the amount claimed
therein, in the county court of the county of Rensselaer, the plain-
tiff shall recover no costs or disbursements unless he shall recover
five hundred dollars or more. In all actions hereafter brought in
the supreme court, triable in the counties of Bronx and Queens,
and in which the defendant is a resident of the county where the
action is brought, which could have been brought, except for the
amount claimed therein, in the county court of the counties of
Bronx and Queens, the plaintiff shall recover no costs or disburse-
ments unless he shall recover five hundred dollars or more. In all
actions hereafter brought, triable in the supreme court or county
court of a county contained wholly within a city of the first class,
or in the city court of the city of New York, which could have been
brought, except for the amount claimed therein, in the municipal
court of the city of New York, and in which the defendant shall
have been served with process within the city of New York, the
plaintiff shall recover no costs or disbursements unless he shall
recover two hundred and fifty dollars or more. The fact that in
any action a plaintiff is not entitled to costs under the provisions
GOS4 Report or Jomr Lraisnative Cowmirree

of this subdivision shall not entitle the defendant to costs under
the next following section.}

[Code § 8228. The bracketed matter covered by other sections. Subds.
3-10 substitute for references in subd. 3. Included by Board in Costs Law,
§ 2.]

§ 1448, Limitation of plaintiff’s costs in actions for tort
er fine or penalty. [3. An action specified. in subdivision
first, third, fourth or fifth of section twenty-eight hundred and
sixty-three of this act. But i}/f, im an action to recover damages
for an assault, battery, false imprisonment, libel, slander, eriminal
conversation, seduction or malicious prosecution, or a fine or
penalty in which the people of the state are a party, the plaintiff
recovers less than fifty dollars damages, the amount of his costs
cannot exeeed the damages.

[Code § 3228, subd. 3, as to limitation on amount of costs. Included by
Board in Costs Law, §§ 29, 32, 50, 65, 67, 101, 108, 121, 156, 162, the subd.
beimg repeated as to each of the kinds of action specified above.]

§ 1449. Limitation of plaintiff’s costs in certain actions
for sum of money only. [4. An] Jn an action, other
than one of those specified in swhdiviscons one to eleven, both in-
clusive, of section fourteen. hundred and forty-seven. of this act,
[the foregoing subdivisions of this section], in which the com-
plaint demands judgment for a sum of money onlyf. But], the
plaintiff is not entitled to costs [under this subdivision,] unless
he recovers the sum of fifty dollars or more.

[Code § 3228, subd. 4, as to limitation on amount of costs. Included by
Board in Costs ILaw, § 103:]

§ 1450. Limitation of plaintiff’s costs in action to recover
chattel. [2. An] Jn am. action to recover a chattelf. But],
if the value of the chattel, or of all the chattels. recovered
hy the plaintiff, as fixed, together with the damages, if any,
awarded to him, is less than fifty dollars, the amount of his costs
cannot exceed the amount of the value and the damages.

[Code § 3228, subd. 2, as to limitation on amount of costs. Included by
Board in Costs Law, § 37.],
‘Civit Practice Act G85

§ 1451. Limitation of plaintifi’s costs by reason of bring=
ing action in higher court. The plaintiff shall recover no costs
or disbursements:

1. In [all] wn actionf[[s hereafter] brought in the supreme
court, triable in the county of New York, which could have been
brought, except for the amount claimed therein, in the city court
of the city of New York, and in which the defendant shall have
been served with process within the county of New York, [the
plaintiff shall recover no costs or disbursements] unless he shall
recover one thousand dollars or more.

2. In [all] an action{’s hereafter} brought, triable in the
supreme court or county court of a county contained wholly within
a city of the first class, or in the city court of the city of New
York, which could have been brought, except for the amount
claimed therein, in the municipal court of the city of New York,
and in which the defendant shall have been served with process
within the city of New York, [the plaintiff shall recover no costs
or disbursements} unless he shall recover two hundred and fifty”
dollars or more.

8. In [all an actionfs hereafter} brought in the supreme
court, triable in the county of Kings, which could have been
brought, except for the amount claimed therein, in the county
court of Kings county, and in which the defendant shall have been
served with process within the county of Kings, [the plaintiff
shall recover no costs or dishursements] unless he shall recover
five hundred dollars or more.

4. In [all¥ an action{[s hereafter] originally brought in the
supreme court, triable in the county of Albany, and in which the
defendant is a resident of the county of Albany, which could jiave
been brought, except for the amount claimed therein, in the county
court of the county of Albany, [the plaintiff shall recover uo
costs or disbursements} unless he shall recover five hundred dol-
lars or more.

5. In [all] an actionf{[s hereafter} originally brought in the
supreme court, triable in the county of Rensselaer, and in which
the defendant is a resident of the county of Rensselaer, which
could have been brought, except for the amount claimed therein.
in the county court of the county of Rensselaer, [the plaintiff shall
recover no costs or disbursements] unless he shall recover five
hundred dollars or more.

6. In FallJ an actionf[s hereafter} hrought in the supreme
court, triable in the counties of Bronx and Queens, and in which
686 Report or Joint LegisuativE CoMMITTEE

the defendant is a resident of the county where the action is
brought, which could have been brought, except for the amount
claimed therein, in the county court of the counties of Bronx and
Queens, [the plaintiff shall recover no costs or disbursements]
unless he shall recover five hundred dollars or more.

[Code § 3228, subd. 5, without change of substance. Text has been trans-
posed. Included by Board in Costs Law, §§ 104-107.]

§ 1452. Defendant’s costs of course. The defendant is
entitled to costs, of course, upon the rendering of final judgment
in an action specified in the last preceding section, unless the
plaintiff is entitled to costs as therein preseribedf{.]; but the
[The] fact that in any action a plaintiff is not entitled to costs
by reason of having brought the action in a court of jurisdiction
higher than that in which it might have been brought [under the
provisions of this subdivision] shall not entitle the defendant to
costs [under the next following section].

[Code § 3229. first sentence, and last sentence of Code § 3228, subd. 5,
without change of substance. Included by Board in Costs Law, § 3.]

§ 1453. Defendant’s costs; when discretionary. [The
defendant is entitled to costs, of course, upon the rendering of
final judgment, in an action specified in the last section, unless
the plaintiff is entitled to costs, as therein prescribed. But w]
Where, in [such] an action against two or more defendauts, the
plaintiff is entitled to costs against one or more, but not against all
of them, none of the defendants are entitled to costs, of course.
In that case, costs may be awarded in the discretion of the court
to any defendant against whom the plaintiff is not entitled to costs,
where he did not unite in an answer, and was not united in inter-
est, with a defendant against whom the plaintiff is entitled to
costs.

[Code § 3229. First sentence included in separate section. Included by
Board in Costs Law, § 3.]

§ 1454. When costs are discretionary. Except as pre-
scribed in the preceding [last two] sections of this article, the
court [may], upon the rendering of a final judgment, in its dis-
cretion, may award costs to any party im such sum not exceeding
Crvit Practice Act 687

the total amount authorized by statute as to the court shall seem
just.

[Code § 3230, without change of substance. Included by Board in Costs
Law, § 4.]

§ 1455. Costs where notice of no personal claim served.
Where a personal claim is not made against a defendant, and
a notice subscribed by the plaintiff’s attorney setting forth the
general object of the action, a brief description of the property
affected by it, if it affects specific real or personal property, and
that a personal claim is not made against him, [may be] is served
with the summons[.. If], and the defendant so served unreason-
ably defends the action, costs may be awarded against him.

[Code § 423, without change of substance. Included by Board in rule 93,

authorizing service of notice of ‘‘no personal claim,” and Costs Law, § 183,
as to effect of service.]

§ 1456. Costs, when several actions are brought instead of
one. Where two or more actions are brought against parties
severally liable wpon the same written instrument, including
the parties to a bili of exchange or a promissory note. [in a
case specified in section 454 of this act,] or otherwise for the same
cause of action, against persons who might have been joined as
defendants in one action, costs, other than disbursements, cannot
he recovered, upon the final judgment, by the plaintiff, in more
than one action, which shall be at his election. But this prohibi-
tion does not apply to a case where the plaintiff joins as defend-
ants in each action brought all the persons liable not previously
ened, who [can], with reasonable diligence, can be found within
the state; or, if the action is brought in the city court of the city
of New York, or a county court within the city or county, as the
case may be, where the court is located.

[Code § 3231, without change of substance. Included by Board in Costs
Law, § 114.] ’

§ 1457. Costs upon severance of action. If the plaintiff
elects to continue [the] an action after severance and judq-
ment upon a part of his claim, his right to costs upon the judg-
ment is the same as if it was taken in an action brought for only
that part of the claim. If the plaintiff does not elect to continne
688 Reporr ov Jornt LeGisLative. COMMITTEE

the action, costs must be awarded as upon final judgment in any
other case.

[Code § 511, last two sentences broadened to cover any case of severance.
Board’s Costs Law, § 6, is supposed to cover the above. ]

§ 1458. Costs in case of transfer of cause of action.
Where an action is brought in the name of another by a trans-
feree of the cause of action, or by the other person who is bene-
ficially interested therein; or where, after the commencement of
an action, the cause of action becomes, by transfer or otherwise.
the property of a person not a party to the action; the transferee.
or other person so interested, is liable for costs in the lke cases.
and to the same extent as if he was the plaintiff; and, where costs
are awarded against the plaintiff, the court [may], hy order, may
direct the person so liable to pay them. Except in a case where he
could not have been lawfully directed to pay ensts personally if he
had been a party, [as prescribed in the last section,] his disobe-
dience to the order is a contempt of court. But this section does
not apply to a case where the person so beneficially interested is
the attorney or counsel for the plaintiff, if. his onlv beneficial
interest consists of a right to a portion of the sum or property
recovered, as compensation for his services in the action.

[Code § 3247, without change of substance. Included by Board in Costs
Law, § 179.]

§ 1459. Interlocutory costs upon issue of law. Where
an issue of law and an issue of fact are jomed between the same
parties to the same action, and the issue of fact remains undis-
posed of when an interlocutory judgment is rendered upon the
issue of law, the interlocutory judgment [mav]. in the diseretion
of the court, may deny costs to either party, or award costs to the
prevailing party, either absolutely, or to abide the event of the
trial of the issue of fact. [Section 779 of this act applies to inter-
locutory costs, awarded as prescribed in the last section.} Such
costs may be collected and enforeed, and all proceedings on the
part of the party to pay the same shall be stayed, in the same man-
ner as if they were costs of a motion.

[Code §§ 3232 and 32338, without change of substance. Included by Board
in Costs Law, § 83.]
Crvin Practior Act Gsy

§ 1460. Costs, where plaintiff and defendant recover
upon separate issues. In an action wherein the plaintiff ts
entitled to costs as of course [specified in section 3228 of this act],
wherein the complaint sets forth separately two or more causes
of action upon which issues of fact are joined, if the plaintiff
recovers upon one or more of the issues and the defendant upon
the other or others, each party is entitled to costs against the
adverse party, unless it is certified that the substantial cause of
action was the same upon each issue; in which case, the plaintiff
only is entitled to costs. Costs to which a party is so entitled
must be included in the final judgment by adding them to or
offsetting them against the sum awarded to the prevailing party;
or otherwise, as the case requires. [[But t}7his section does not
entitle a plaintiff to costs in a case where he would not otherwise
be entitled to costs [specified in subdivision fourth of section
3228 of this act, where he is not entitled to costs, as prescribed in
that subdivision].

[Code § 3234, without change of substance. Included by Board in Costs
Law, § 7.]

§ 1461. Costs in new action after discontinuance in in-
ferior court upon answer of title. Where an action brought
before a justice of the peace, or in [[a district] the municipal
court of the city of New York or a justice’s court of a city, has
been discontinued, as prescribed by law, upon the delivery of an
answer showing that title to real property will come in question,
and a new action for the same cause has been commenced in the
proper court, the party in whose favor final judgment is rendered
in the new action is entitled to costs; except that, where tinal
judgment is rendered therein in favor of the defendant upon the
trial of an issue of fact, the plaintiff 1s entitled to costs, unless it
is certified that the title to real property came in question on the
trial.

[Code § 3235, without change of substance. Included by Board in Costs
Law, § 133.]

§ 1462. Costs upon new trial ordered by reason of failure to
file decision on time. Jf, after the trial by the court of an issue
of fact or of law, the decision of the court is not filed within
the time required and [MJ an order for a new trial is made, or a
690 Rerorr or Jormnt Leeistative CoMMITTEE

contingent order for a new trial becomes absolute, the costs of the
former trial abide the event.

[Code § 1010, last sentence, without change of substance. Included by
Board in Costs Law, § 64.]

§ 1463. Discretionary motion costs. Costs upon a motion
in an action, where the costs thereof are not specially regulated in
this act, or upon a reference to ascertain the damages sustained by
reason of an injunction, or to approve an undertaking or the
sureties thereof, or to make an examination or inquiry, or to
appoint an appraiser, receiver or trustee, or to take an account, or
to determine any question of fact arising at any stage of the
action except upon the pleadings, [made pursuant to sections 623,
624, 827, or 1015 of this act,J may be awarded, either absolutely
or to abide the event of the action, or of the reference, to any
party, in the discretion of the court or judge.

[Code § 3236, without change of substance. Included by Board in Costs
Law, § 110.]

§ 1464. Costs on application for judgment on pleading
as frivolous. Costs, as upon a motion, may be awarded upon an
application [pursuant to this section] for judgment on a pleading
as frivolous.

[Code § 537, last sentence, without change of substance. Includéd by
Board in Costs Law, § 69.]

§ 1465. Costs where scandalous matter is stricken out
on motion. [Irrelevant, redundant, or scandalous matter, con-
tained in a pleading, may be stricken out, upon the motion of
a person aggrieved thereby.J Where scandalous matter is [thus]
stricken from a pleading on motion [out], the attorney whose
name is subscribed to the pleading may be directed to pay the
costs of the motion, and his failure to pay them may be punished
as a contempt of the court.

[Code § 545, last sentence, without change of substance. The first sentence
is included under “ pleadings.” Included by Board in Costs Law, § 141.]

§ 1466. The foregoing sections limited. The foregoing
sections of this article do not affect the recovery of costs upon
an appeal.

[Code § 3237, without change.]
Crvit Practice Act 691

§ 1467. Costs upon appeal from final judgment. Upon
an appeal from the final judgment in an action, the recovery of
costs is regulated as follows:

1. In an action wherein plaintiff is entitled to costs as of course
[specified in section 3228 of this act], the respondent is entitled
to costs upon the affirmance, and the appellant upon the reversal,
of the judgment appealed from; except that, where a new trial
is directed, costs may be awarded to either party, absolutely or to
abide the event, in the discretion of the court.

2. In every other action, and also where the final judgment
appealed from is affirmed in part, and reversed in part, costs may
be awarded in like manner, in the discretion of the conrt.

[Code § 3238, without change of substance. Included by Board in Costs
Law,-§ 20.]

§ 1468. Costs upon appeal from interlocutory judgment
or order. Upon an appeal from an interlocutory judgment
or an order in an action, costs are in the discretion of the court,
and may be awarded absolutely, or to abide the event, except as
follows:

1. Where the appeal is taken from an order granting or refusing
a new trial, and the decision upon the appeal refuses a new trial,
the respondent is entitled, of course, to the costs of the appeal.

2. Where an appeal is taken from an order, refusing a new
trial, and an appeal is also taken from the judgment rendered
upon the trial, neither party is entitled to the costs of the appeal
from the order.

[Code § 3239, without change. Included by Board in Costs Law, § 21.]

§ 1469. Costs in a special proceeding in a court of record.
Costs in a special proceeding instituted in a court of record or
upon an appeal in a special proceeding taken to a court of record,
where the costs thereof are not specially reewated in this act,
may be awarded to any party, in the discretion of the court. at
the rates allowed for similar services in an action brought in the
same court or an appeal from a judgment taken to the same court,
and in like manner.

[Code § 3240, without change. Included by Board in Costs Law, § 163.]

§ 1470. Costs or fees where party prosecutes or defends
as poor person. A person [so] admitted fo prosecute as a poor
692 Report or Jornt LeaisuativE ComMirrer

person may prosecute his action without paying fees to any
ofticer[; and he shall not be prevented from prosecuting the
same, by reason of his being liable for the costs of a former action,
brought by him against the same defendant]. If judgment is
rendered against him or his complaint is dismissed, costs shall
not be awarded against him.

Where costs are awarded in favor of a person who had been
admitted to prosecute or defend as a poor person, [as prescribed
in this article,J they must be paid over to his attorney when
collected from the adverse party, and distributed among the attor-
ney and counsel assigned to the poor person, as the court directs.

[Code §§ 461, 467. The bracketed matter omitted is included under “ par-
ties.” Included by Board in Costs Law, § 125.]

§ 1471. Costs against the state; how paid. Where costs are
awarded against the people of the state in an action or a special
proceeding brought hy a public officer, pursuant to any provision
of lw, and the proceedings have not been staved by appeal or
otherwise, the comptroller must draw his warrant upon the treas-
urer, for the payment of the costs, out of any money in the.
treasury appropriated for that purpose, upon the production to
him of an exemplified copy of the judgment or order awarding
the costs, and, where the amount is not fixed thereby, of a taxed
bill of costs; accompanied, in either case, with a certificate of the
attorney-general to the effect that the action or special proceeding
was brought pursuant to law. The fees of the clerk for the
exemplified copy must be certified thereupon by him and included
in the warrant.

[Code § 3241, without change. Included by Board in Costs Law, § 12+4.]

§ 1472. Costs where action brought by people on relation
of private person. Where an action is brought, in the name of
the people of the state, upon the relation of a private corpora-
tion or individual, fas prescribed in section 1986 of this act]
a judgment awarding costs to the defendant must award them
against the relator in the first instance; and against the penple.
only jn ease an excention issued thereupon against the property
of the relator is returned unsatished.

[Code § 3242, applicable now only to actions specified in § 1986, made of
general application. Included by Board in Costs Law, § 123.]
Crvin Practice Act 693

§ 1473. Costs in action or proceeding brought by people for
benefit of municipality. In an action or a special proceeding
brought in the name of the people of the state to recover money
or property, or to establish a right or claim, for the benefit of
a county, city, town or village, costs shall not be awarded against
the people; but, where they are awarded to the defendant, they
must be awarded against the body for whose benefit the action or
special proceeding was brought.

[Code § 32438, without change. Included by Board in Costs Law, § 122.)

§ 1474. Costs in action against a school officer or super-
visor. Costs cannot be awarded to the plaintiff in an action
against a school officer or a supervisor, on account of an aet
performed by him by virtue of ‘or under color of his office, or
on account of a refusal or an omission to perform a duty enjoined
upon him by law, where his act, refusal or omission might have
been the subject of an appeal to the state superintendent of public
instruction, and where it is certified that it appeared upon the
trial that the defendant acted in good faith. But this section
does not apply to an action for a penalty, or to an action or a
special proceeding to enforce a decision of the superintendent.

[Code § 3244, without change of substance. Included by Board in Costs
Law, § 142.]

§ 1475. Costs in action against municipal corporation.
Costs cannot be awarded to the plaintiff, in an action against a
municipal corporation in which the complaint demands a judg-
‘ment for a sum of money only, unless the claim on which the.
action is founded, was presented, before the commencement of the
action, [presented] to the board of such corporation having the
power to audit the same, or to its chief fiscal officer, at least ten
days before the commencement of said action.

[Code § 3245, without change. Included by Board in Costs Law, § 115.]

§ 1476. Costs and disbursements in action against executor
or administrator. Where a judgment for a sum of money only
is rendered against an executor or administrator in an action
brought against him in his representative capacity, costs shall not
be awarded against him, except [as prescribed in the next section.
WY that where it appears [in a case specified in the last section]
694 Report or Joint Leeistative ComMirree

that the plaintiff’s demand was presented within the time limited
by a notice, published as prescribed by law, requiring creditors
to present their claims, and that the payment thereof
was unreasonably resisted or neglected, the court may
award costs and disbursements or disbursements without costs
against the executor or administrator, to be collected either out of
his individual property or out of the property of the decedent as
the court directs, having reference to the facts which appear upon
the trial. Where the action is brought in the supreme court or
any county court, the facts must be certified by the judge or referee
before whom the trial took place.

[Code §§ 1835, 1836, without change of substance. Included by Board in
Costs Law, § 61.]

§ 1477. Costs in action by or against executor, adminis-
trator, trustee or person authorized by statute to sue or be
sued. In an action brought by or against an executor or admin-
trator in his representative capacity, or the trustee of an
express trust, or a person expressly authorized by statute to sue
or to be sued, costs must be awarded as in an action by or against
a person prosecuting or defending in his own right, except as
otherwise prescribed in the last preceding section [sections 1835
and 1836 of this act]; but they are exclusively chargeable upon,
and collectible from the estate, fund, or person represented, unless
the court directs them to be paid by the party personally for
mismanagement or bad faith in the prosecution or defence of the
action.

[Code § 3246, without change of substance. Included by Board in Costs.
Law, § 62.]

§ 1478. Action by surety or trustee to recover costs and
expenses. <A surety, including a drawer or indorser, may recover
im an action against his principal, and an executor, administrator
or other trustee, [inay,J where the trust estate is insufficient to
reimburse him, may recover in an action against the beneficiary
whom he represents, his reasonable costs and other expenses in-
curred necessarily and in good faith in the prosecution or defence,
by the express or implied consent of the principal or beneficiary, of
an action or special proceeding, relating to the demand secured, or
(Civit Practice Acr 695

to the trust estate, as the case requires. This section does not
affect any special agreement relating to those costs and expenses.

[Code § 1916, without change. Included by Board in Civil Rights Law,
§ 224, and Decedent Estates Law, § 128.]

§ 1479. Certificate entitiing party to costs or increased
costs. Where, upon the trial of an action, the title to real prop-
erty comes in question, or any fact appears whereby either party
becomes entitled to costs or to [the] increased costs [specified in
section 3258 of this act], the judge presiding at the trial, or the
referee, must make a certificate stating the fact, wpon ihe appli-

cation of the party to be benefited thereby, either before or after

the verdict, report or decision is renderedf[, make a certificate,
stating the fact]. Such a certificate is the only competent evi-
dence, as to the matter, before the taxing officer.

[Code § 3248, without change of substance. Included by Board in Costs
Law, § 72.)

§ 1480. Effect of article on special statute. This article
[title] does not affect any provision contained elsewhere in this
act, or in any other statute, remaining unrepealed after this
[chapter] act takes effect, whereby the award of costs is specially
regulated, in a particular case, otherwise than as prescribed in
this article [title].

[Code § 3250, without change of substance. ]

ARTICLE 86
COSTS; AMOUNT OF; ADDITIONAL ALLOW-
ANCES; DISBURSEMENTS

Section 1481. Amount of costs generally.

1482. Amount of costs upon a motion or reference.

1483. Amount of costs on motion for discovery or inspec-
tion.

1484. Amount of costs upon new trial or assessment of
damages.

1485. Amount of costs upon appeals generally.

1486. Amount of costs upon motion for new trial upon
case or for judgment upon special verdict.
696 Report or Joint Lecistative ComMirTEE

1487. Amount of costs upon appeal to court of appeals.

1488. Amount of costs upon a settlement.

1489, Additional allowances to plaintiff in real property
and certain other actions.

1490. Additional allowance to either party in difficult
and certain other cases.

1491. Allowances limited to two thousand dollars.

1492. Amount of costs upon adjournment of trial.

1493. Increased damages not to carry increased costs.

1494. When defendant entitled to increased costs.

1495. Disbursements, which may be included in bill of
costs.

1496. Increased disbursements not allowed.

1497. Collection of costs of motion.

1498. Article not to affect special provisions of law.

§ 1481. Amount of costs generally. Costs awarded to
a party to an action must be at the following rates:

1. To the plaintiff:

a. For all proceedings, before notice of trial, in an action
wherein judgment may be taken without application to the court
[specified in section 420 of this act], fifteen dollars; in every
other action, twenty-five dollars.

b. For each additional defendant served with the summons, not
exceeding ten, two dollars; and for each necessary defendant, in
excess of that number, served with the summons, one dollar.

c. For procuring the appointment of a guardian or guardian
ad litem for one or more infant defendants, ten dollars.

d. For procuring an order directing the service of the summons
by publication thereof, or personally without the state, on one or
more defendants, ten dollars.

e. For procuring an injunction order or an order of arrest, ten
dollars.

2. To the defendant:

f. For all proceedings before notice of trial, except as otherwise
prescribed in this article, ten dollars.

3. To either party:

g. For all proceedings after notice of trial and before trial,
except as otherwise prescribed in this article, fifteen dollars.

h. For taking the deposition in a@ court of record of a witness
or of a party or of a person who expects to be a party, [as pre
(Crivin Practice Act 697

scribed in section eight hundred and seventy, section eight hun-
dred and seventy-one, or section eight hundred and ninety-three
of this act,] ten dollars.

t. For drawing interrogatories to be annexed to a commission
or to letters rogatory, [issued as prescribed in sections eight hun-
dred and eighty-eight, nine hundred and twelve, nine hundred and
thirteen, and three thousand one hundred and seventy-one of this
act, 9 including those issued by the city court of the city of New
York, ten dollars.

j. For the trial of an issue of law, twenty dollars.

k. For the trial of an issue of fact, [or the assessment of dam-
ages pursuant to section one hundred and ninety-four of this act, ]
thirty dollars; and, where the trial necessarily occupies more than
two days, ten dollars in addition thereto.

l. For making and serving a case, twenty dollars; and, when the |
case necessarily contains more than fifty folios, ten dollars in
addition thereto.

m. For making and serving amendments to a case, twenty
dollars.

[Upon a motion for a new trial, upon a case, or an application
for judgment upon a special verdict. the same sums as upon an
appeal, as prescribed in subdivision fourth of this section.

Upon any other motion, or upon a reference specified in section
three thousand two hundred and thirty-six of this act, to each
party to whom costs are awarded, a sum fixed by the court or
judge, not exceeding ten dollars, besides necessary disbursements
for printing and referee’s fees.

Where a new trial is had, pursuant to an order granting the
same, or an assessment of damages, pursuant to section one hun-
dred and ninety-four of this act, is had, for all proceedings after
the granting of, and before the new trial, or an assessment of dam-
ages, pursuant to section one hundred ninety-four of this act,
twenty-five dollars. J

n. For [one term of the city court of the city of New York. at
which the case is necessarily on the calendar, and for} each trial
term or special term of the supreme court or a county court, not
exceeding five, at which the cause is necessarily on the calendar,
excluding the term at which it is tried or otherwise finally dis-
posed of, ten dollars.

[Code § 3251, subds. 1-3, except last paragraph of subd. 3 so far as relates
to city court of city of New York. The various subdivisions, supra, were

included by Board in Costs Law, §§ 9, 16, 18, 33, 34, 35, 52, 70, 81, SS, 127,
128, 178, 180, 181. Bracketed matter included in other sections. ]
698 Revorr or Jornt Lecistative ComMMITTEE

§ 1482. Amount of costs upon a motion or reference.
Costs awarded to either party to an action upon [Upon] any
[other] motion, other than for a new trial upon a case or for judg-
ment upon a special verdict, or upon a reference specified in sec-
tion [three thousand two hundred and thirty-six] fourteen hun-
dred and sixty-three of this act, to each party to whom costs are
awarded, a sum fixed by the court or judge, not exceeding ten dol-
lars, besides necessary disbursements for printing and referee’s
fees.

[Code § 3251, part of subd. 3, without change of substance. Included by
Board in Costs Law, § 109.]

§ 1483. Amount of costs on motion for discovery or
inspection. A fixed sum, not exceeding twenty dollars, may be
_ added by the order to the costs of [the] a motion for discovery or
inspection, for the fees of the referee.
[Code § 807, last sentence without change of substance. Included by Board

in Costs Law, § 54. The remainder of section under “Admissions and
Discovery.”’]

§ 1484. Amount of costs upon new trial or assessment
of damages. Costs awarded to either party to an action [W]
where a new trial is had, pursuant to an order granting the same,
or an assessment of damages[[, pursuant to section one hundred
and ninety-four of this act,] is had after affirmance by the court of
appeals of an order granting a new trial and judgment absolute,
must be at the following rates:

1. [f] or all proceedings after the granting of and before the
new trial or an assessment of damages, [pursuant to section one
hundred ninety-four of this act,] twenty-five dollars.

2. For the assessment of damages, thirty dollars.

[Code § 3251, part of subd. 3, without change of substance. Included by
Board in Costs Law, §§ 30, 116.]

§ 1485. Amount of costs upon appeals generally. (4.
To] Costs awarded to either party to an action upon an appeal to
the supreme court from an inferior court, excepting upon an
appeal to the supreme court from the city court of the city of New
York; or upon an appeal to the appellate division of the supreme
court, or to. the supreme court from the city court of the city of
New York, taken from an interlocutory or final judgment, or from
Civin Practice Act 699

an order granting or refusing a new trial rendered or made at a
trial term of the supreme court or of the city court of the city of
New York; or upon an application to the appellate division of the
supreme court for a new trial, or for judgment upon a verdict
rendered subject to the opinion of the court, or where exceptions
are ordered to be heard in the first instance at a term of the
appellate division of the supreme court, must be at the following
rates:

1. [b] Before argument, twenty dollars.

2. For argument, forty dollars.

3. For each term, not exceeding five, of the appellate division[,
not exceeding five, of the supreme court, at which the cause is
necessarily on the calendar, excluding the term at which it is
argued, or otherwise finally disposed of, ten dollars.

4. In all appeals taken to the supreme court from an interlocu-
tory judgment of the city court of the city of New York, or from
an order of such court or of a judge thereof, [under section thirty-
one hundred and eighty-nine] costs awarded to the successful
party shall not exceed ten dollars in addition to the taxable
disbursements.

[Code § $251, subd. 4, without change of substance. Included by Board in
Costs Law, §§.22, 23, 177.]

§ 1486. Amount of costs upon motion for new trial
upon case or for judgment upon special verdict. Costs
awarded to either party to an action upon a motion for a new trial,
upon a case, or an application for judgment upon a special verdict,
must be at the same rates [the same sums] as upon an appeal, as
prescribed in [subdivision fourth of this] the last preceding
section.

[Code § 3251, part of subd. 3, without change of substance. Included by
Board in Costs Law, §§ 111, 112.]

§ 1487. Amount of costs upon appeal to court of appeals.
[5. To] Costs awarded to either party to an action upon an ap-
peal to the court of appeals must be at the following rates:

1. Before argument, thirty dollars.

2. For argument, sixty dollars.

8. For each term, not exceeding ten, at which the cause is on
the calendar, excluding the term at which it is argued or otherwise
finally disposed of, ten dollars.
700 Report or Joint Legisnatives CoMMITTEE

4. Where a judgment is affirmed by the court of appeals, the
court [may], in its discretion, also may award damages by way of
costs for the delay, not exceeding ten per centum upon the amount
of the judgment, or, where it was rendered upon. an appeal, upon
the amount of the original judgment.

[Code § 3251, subd. 5, without change of substance. Ineluded by Board in
Costs Law, §§ 24, 25, 176.]

§ 1488. Amount of costs upon a settlement. Where an
action in which the plaintiff is entitled to costs as of course
[, specified in section 3228 of this act,] is settled before judgment,
no greater sum shall be demanded as costs than at the rates pre
scribed by the preceding sections [3251] of this article [act].

[Code § 3260, without change of substance. Included by Board in Costs
Law, § 158.]

§ 1489. Additional allowances to plaintiff in real prop-
erty and certain other actions. Where the action is brought
to foreclose a mortgage upon real property; or for the partition
of real property; or to procure an adjudication upon a will or
other instrument in writing; or to compel the determination of a
claim to real property; or where, in any action, a warrant of
attachment against property has heen issued; the plaintiff, if a
final judgment is rendered in his favor and he recovers costs, is
entitled to recover, in addition to the costs prescribed in this article
[the last section], the following percentages, to be estimated upon
the amount found to be due upon the mortgage; or the value of the
property partitioned, affected by the adjudication upon the will
or other instrument, or the claim to which is determined; or the
value of the property attached, not exceeding the sum recovered
or claimed; as the case may be:

1. Upon a sum not exceeding two hundred dollars, ten per
centum.

2. Upon an additional sum not exceeding four hundred dollars,
five per centum.

8. Upon an additional sum not exceeding one thousand dollars,
two per centum.

J. Where such an action is settled before judgment, the plaintiff
is entitled to a percentage upon the amount paid or secured upon
the settlement, at one-half of those rates.
Crviz Practice Act TOL

5. In an action to foreclose a mortgage upon real property,
where a part of the mortgage debt is not due, if the final judgment
directs the sale of the whole property, [as prescribed in section
1637 of this act,J the percentages specified in this section must
be computed upon the whole sum unpaid upon the mortgage. But
if it directs the sale of a part only, {as prescribed in section 1636
of this act, they must be computed upon the sum actually due;
and if the court thereafter grants an order directing the sale of the
remainder or a part thereof, the percentages must be computed
upon the amount then due; but the aggregate of the percentages
shall not exceed the sum which would have been allowed if
the entire sum secured by the mortgage had been due when final
judgment was rendered.

[Code § 3252, without change of substance. Included by Board in Costs
Law, § 13.]

§ 1490. Additional allowance to either party in difficult
and certain other cases. In an action brought to foreclose a
mortgage upon real property or for the partition of real property,
or in a difficult and extraordinary case, where a defense has been
interposed in an action, or, except in the first and second judicial
districts, in a special proceeding by certiorari to review an assess-
ment under article thirteen of the tax law, [and the acts amending
the same,} the court [may also], in its discretion, also may award
to any party a further sum, as follows:

1. In an action to foreclose a mortgage, a sum not exceeding
two and one-half per centum upon the sum due or claimed to
be due upon the mortgage, nor the aggregate sum of two hundred
dollars.

2. In any action or special proceeding specified in this section,
where a defense has been interposed, or in an action for the
partition of real property, a sum not exceeding five per centum
upon the sum recovered or claimed, or the value of the subject
matter involved.

[Code § 3253, without change of substance. Included by Board in Costs
Law, § 14.]

§ 1491. Allowances limited to two thousand dollars.
But all the sums awarded to the plaintiff as prescribed in section
fourteen hundred and erghty-nine [8252] of this act, or to a party
or two or more parties on the same side as prescribed in [the last
702 Report or Jownr Lea@isnative Comittee

sentence] subdivision four of section [3251] fourtcen hundred
and eighty-one of this act, and in subdivision second of the last
section, cannot exceed in the aggregate two thousand dollars.

[Code § 3254, without change of substance. Included by Board in Costs
Law, § 15.]

§ 1492. Amount of costs upon adjournment of trial.
Where an application is made to a eourt or a referee to adjourn
a trial, the payment to the adverse party of a sum not exceeding
ten dollars, [or, in the city court of the city of New York, a sum
not exceeding five dollars,J besides the fees of his witnesses,
and other taxable disbursements, already made or incurred, which
are rendered ineffectual by the adjournment, may be required as
a condition of granting the adjournment.

[Code § 3255, without change of substance, except that the section as to the
city court of New York is re-enacted as a part of the New York City Court
Act. Included by Board in Costs Law, § 17, and New York City Court Act,
§ 59.)

§ 1493. Increased damages not to carry increased costs.
A plaintiff who recovers double or other increased damages does
not thereby become entitled to more than single costs, except
where it is otherwise specially prescribed by law.

[Code § 3257, without change. Included by Board in Costs Law, § 71.]

§ 1494. When defendant entitled to increased costs. In
either of the following cases, a defendant in whose favor a final
judgment is rendered in an action wherein the complaint demands
judgment for a sum of money only or to recover a chattel, or a
final order is made in a special proceeding instituted by a state
writ, is entitled to recover the costs prescribed in this article
[section 3251 of this act], and, in addition thereto, one-half
thereof:

1. Where the defendant is or was a public officer appointed
or elected under the authority of the state, or a person specially
appointed according to law to perform the duties of such an
officer, and the action or special proceeding was brought by reason
of an act done by him by virtue of his office or an alleged omis-
sion by him to do an act which it was his official duty to perform.

2. Where the action was brought against the defendant by
reason of an act done by the command of such an officer or person,
(Civin Practice Act 703

or in his aid or assistance, touching the duties of the office or
appointment.

3. Where the action was brought against the defendant for
taking a distress, making a sale or doing any other act by or
under color of authority of a statute of the state.

But this section does not apply where an officer or other person
specified herein unites in his answer with a person not entitled to
such additional costs.

[Code § 3258, without change of substance. Included by Board in Costs
Law, § 73.)

§ 1495. Disbursements which may be included in bill
of costs. A party to whom costs are awarded in an action is
entitled to include in his bill of costs his necessary disbursements
as follows:

1. The legal fees of witnesses and of referees and other officers.

2. The reasonable compensation of commissioners taking
depositions.

3. The legal fees for publication where publication is directed
pursuant to law.

4. The legal fees paid for a certified copy of a deposition, or
other paper, recorded or filed in any public office, necessarily used
or obtained for use on the trial.

5. Copies of opinions and charges of judges.

6. The reasonable expenses of printing the papers for a hear-
ing, when required by a rule of the court.

7. Prospective charges for the expenses of entering and docket-
ing the judgment.

S. [And t]The sheriff’s fees for receiving and returning one
execution thereon, including the search for property.

9, [And t]The expenses of searches [so] made by [said] title
insurance, abstract or searching companies, which shall be taxable
at rates not exceeding the cost of similar official searches.

10. [And. s]Such other reasonable and necessary expenses as
are taxable according to the course and practice of the court or by
express provision of law.

[Searches affecting property situate in anv county in which the
office of county clerk or register is a salaried one, when made and
certified to bv title insurance, abstract or searching companies,
organized and doing business under the laws of this State, may he
used in all actions or special proceedings in which official searches
404 Report or Jormnt Leeistative ComMMITTEE

may be used, in place of and with the same legal effect as such
official searches. }

[Code § 3256. The sentence in brackets relating to use of searches is a
general provision, which has been covered elsewhere. Section included by

Board in Costs Law, § 53; Insurance Law, § 182-b. It has been suggested
that the premium on a surety company bond be made a taxable disbursement. ]

§ 1496. Increased disbursements not allowed. The increase
in the amount of costs allowed to a defendant [specified in the
last section, does not extend to the disbursements; and an offi-
cer, witness or juror is not entitled to any other fees in the
action, except the single fee allowed by law for his services.

[Code § 3259, without change of substance. Included by Board in Costs
Law, § 74.]

§ 1497. Collection of cests of motion. Where costs of
a motion, or any other sum of money, directed by an order to be
paid, are not paid within the time fixed for that purpose by the
order, or, if no time is so fixed, within ten days after the service
of a copy of the order, an execution against the personal property
only of the party required to pay the same may be issued by any
party or person to whom the said costs or sum of money is made
payable by said order, or in case permission of the court shall be
first obtained by any party or person having an interest in com-
pelling payment thereof, which execution shall be in the same
form, as nearly as may be, as an execution upon a judgment,
omitting the recitals and directions relating to real property: and
all proceedings on the part of the party required to pay the same,
except to review or vacate the order, are stayed without further di-
rection of the court until the payment thereof. But the adverse
party [may], at his election, may waive the stay of proceedings.
Where the order directs that the costs of a motion abide the event
of the action, or where costs of a motion awarded by an order have
not been collected when final judgment is entered, they may be
taxed as part of the costs of the action or set off against ensts
awarded to the adverse party, as the case requires. [But
nJ Nothing herein contained shall be so construed as to relieve a
party or person from punishment as for contempt of court for
disobedience to an order in any case when the remedy of enforce-
ment by such proceedings now exist.

[Code § 779, without change. Included by Board in Costs Law, §§ 113, 164.]
Crvit Practice Act 705

§ 1498. Article not to affect special provisions of law.
This article [title] does not affect any provision contained else-
where in this act, or in any other statute remaining unrepealed
after this act [chapter] takes effect, whereby the amount of costs
is specially fixed, in a particular case, otherwise than as prescribed
in this [title] article.

[Code § 3250, without change.. Also covers Code § 3261.]

ARTICLE 87
COSTS; SECURITY FOR

Section 1499. When defendant may require plaintiff to give

security for costs.

1500. When court may require plaintiff to give security
for costs.

1501. Order for security.

1502. Requisites of undertaking.

1503. Exception to and justification of sureties.

1504. Allowance of sureties.

1505. Additional security for costs.

1506. Dismissal of complaint on failure to obey order to
give security.

1507. Liability of attorney for costs in certain actions.

1508. Security for costs in special proceedings.

§ 1499. When defendant may require plaintiff to give
security for costs. The defendant in an action brought in a
court of record may require security for costs to be given: [as
prescribed in this title]

A. [w]Where the plaintiff [was], when the action was com-
menced, either was

1. A person residing without the state; or, if the action is
brought in a county court, except in the counties of Albany,
Kings, Queens and Richmond, or in the city court of the city
of New York, the city court of Yonkers or the city court of
Albany, residing without the city or county, as the case may be,
wherein the court is located; or

2. A foreign corporation; or

3. A person imprisoned under execution for a crime; or

4, The official assignee of a person so imprisoned; the official

23
706 Rerort or Joint Leaisnative ComMIrTer

assignee or official trustee of a debtor; or an assignee in bank-
ruptey; where the action is brought upon a cause of action aris-
ing before the assignment, the appointment of the trustee or the
adjudication in bankruptcy.

[The defendant, in a like action, may require security for costs
to be given.]

B. [w] Where, after the commencement of the action, the plain-
tiff either

[1.] 5. Ceases to be a resident of the state; or, where the action
is brought in either of the local courts specified in subdivision
[first]} one of this [the last] section, ceases to be a resident of
the city or county, as the case may be, wherein the court is located ;
or

[2.3 6. Is adjudicated a bankrupt, or discharged from his
debts, or exonerated from imprisonment, pursuant to a law of the
state or of the United States; or

[3.] 7. Is sentenced to the state prison for a term less than
for life.

8. In a case specified in this section [either of the last two sec-
tions], if there are two or more plaintiffs, the defendant cannot
require security for costs to be given unless he is entitled to require
it of all the plaintiffs.

9. The word “ city” as used in this section, so far as it applies
to the city court of the city of New York, shall be construed to
mean and apply to the territory within the city of New York as
ut existed and was constituted prior to June six, eighteen hundred
and ninety-five.

[Code §§ 3268, 3269, 3270, without change of substance. Subd. 9 is Greater
New York Charter, § 1345. Included by Board in Costs Law, §§ 143, 144,
145.]

§ 1500. When court may require plaintiff to give security
for costs. In an action by or against an executor or
administrator, in his representative capacity, or the trustee of an
express trust, or a person expressly authorized by statute to sue or
to be sued; or by an official assignee, the assignee of a receiver, or
the committee of a person judicially declared to be incompetent
to manage his affairs; the court [may], in its discretion, may re
quire the plaintiff to give security for costs.

[Code § 8271, without change. Tneluded by Roard in Costs Law, § 146.]
i,

Crvin Practice Act 707

§ 1501. Order for security. Where security for costs is
required to be given, the court in which the action is pending,
cr, except in a case specified in the last section, a judge thereof,
upon due proof at any time, by affidavit, of the facts, must make
an order requiring the plaintiff, within a time specified, either to
pay into court the sum of two hundred and fifty dollars, to he
applied to the payment of the costs, if any, awarded against him,
or, at his election, to file with the clerk an undertaking and to
serve a written notice of the payment or of the filing upon the
defendant’s attorney; and staying all other proceedings on the
part of the plaintiff, except to review or vacate the order, until the
payment or filing, and notice thereof, and also, if an undertaking
is given, the allowance of the same.

[Code § 3272, without change. Included by Board in Costs Law, § 147.]

§ 1502. Requisites of undertaking. The undertaking speci-
fied in the last section must be executed to the defendant by
one or more sureties, and must be to the effect that they will pay
upon demand to the defendant all costs which may be awarded
to him in the action, not exceeding a sum specified in the under-
taking, which must be at least two hundred and fifty dollars.

[Code § 3273, without change. Included by Board in Costs Law, § 148.]

§ 1503. Exception to and justification of sureties. Within
ten days after service of the notice of filing the under-
taking, the defendant may serve upon the plaintiffs attorney a
notice that he excepts to the sureties therein. Within ten days
after service of such a notice, the plaintiff must serve upon the de-
fendant’s attorney a notice of the justification of the same or new
sureties before a judge of the court or a county judge, at a speci-
fied time and place; the time to he not less than five nor more
than ten days thereafter, and the place to be within the county
where the action is triable.

[Code § 3274, without change. Included by Board in Costs Law, §§ 149,
150.]

§ 1504. Allowance of sureties. [Section 580 of this act
applies to the justification of the sureties.J Where the judge
finds the sureties sufficient, he must annex the written examina-
tion, if any, to the undertaking, indorse his allowance thereon and
cause them to be filed with the clerk. Where the defendant fails
708 Report or Jorst Lecisuative ComMitrrer

duly to except to the sureties, the undertaking is deemed allowed
and must be indorsed and filed in like manner.

[Code § 3275, without change of substance. First sentence omitted as
unnecessary. Included by Board in Costs Law, § 151.]

§ 1505. Additional security for costs. At any time after
the allowance of an undertaking given as security for costs
[pursuant to such an order, or as prescribed in section 3278 of
this act], or after notice of the payment into court made pursuant
to such an order, the court or a judge thereof, upon satisfactory
proof, by affidavit, that the sum specified in the undertaking or
the amount of such payment is insufficient, or that one or more
of the sureties have died or become insolvent, or that his or their
circumstances have become so precarious that there is reason to
apprehend that the undertaking is insufficient for the security of
the defendant, must make an order requiring the plaintiff to give
an additional undertaking or make an additional payment into
court. The provisions of law relating to the original order for
security of costs, requisites of undertaking, justification, allow-
ance and payment [last four sections] apply to such an order
and to the undertaking given or payment made pursuant thereto.

[Code § 3276, without change of substance. Included by Board in Costs
Law, § 152.]

§ 1506. Dismissal of complaint on failure to obey order to
give security. Where the plaintiff fails to comply with an
order requiring him to give security for costs[, made as pre
scribed in this title], or to procure the allowance of an undertak-
ing given pursuant to such an order, the defendant is entitled to a
judgment dismissing the complaint, and in his favor for costs.
The defendant may apply therefor as upon a motion.

[Code § 3277, without change of substance. Included by Board in Costs
Law, § 153.]

§ 1507. Liability of attorney for costs in certain actions.
Where a defendant is entitled to require security for costs, as pre
scribed in subdivisions one to four of section fourteen hundred and
ninely-nine [3268] of this act, the plaintiff's attorney is liable for
the defendant’s costs to an amount not exceeding one hundred dol-
lars, until security is given[[, as prescribed in this title]. The
plaintiffs attorney may relieve himself from that lability, al-
Civin Pracrice Act 709

though the defendant may not require security for costs to be
given, by filing and procuring the allowance of an undertaking
for costs as if an order had been made [[as prescribed in section
3272 of this act].

[Code § 3278, without change of substance. Included by. Board in Costs
Law, § 154.)

§ 1508. Security for costs in special proceedings. The
[foregoing sections of this title] provisions of this act relating to
security for costs apply to a special proceeding instituted in a
court of record, in like manner as to an action{[[; for which pur-
pose, the prosecuting party, other than the people, cr, where the
special proceeding is instituted in the name of the people upon
the relation of a private corporation or individual, the relator,

is deemed a plaintiff, and the adverse party, a defendant].
[Code § 3279. The bracketed portion has been covered by a general sectior
under “ Parties.” Included by Board in Costs Law, § 155.]

ARTICLE 88
COSTS; TAXATION

Section 1509 Taxation of costs; computation of additional al-

lowances.

1510. Report, decision or direction for judgment to
specify parties entitled to discretionary costs.

1511. Notice of taxation.

1512. Retaxation.

1518. Review of taxation or retaxation.

1514. Duty of taxing officer.

1515. Affidavit respecting disbursements; when neces-
sary.

§ 1509. Taxation of costs; computation of additional
allowances. Costs must be taxed by the clerk upon the applica-
tion of the party entitled thereto; except that the court may direct
that interlocutory costs or costs in a special proceeding be taxed
by a judge. The clerk must insert in the judgment or final order
the amount of the costs as taxed. [[In a case where the costs are
in the discretion of the court, the report or decision, or the direc-
tion of the court for final judgment, upon a default, or after a
jury trial, must specify which party or parties are entitled to
710 Reporr or Joinr Leeisnarive ComMIrree

costs; but the amount of the costs must be ascertained by taxa-
tion.] The additional allowance provided for in an action to
foreclose a mortgage upon real property, or for the partition of
real property, or to procure an adjudication upon a will or other
imstrument in writing, or to compel the determination of a claim
to real property, or where a warrant of attachment has been
issued, [specified in section 3252 of this act,J} must be com-
puted by the clerk upon the taxation; but the value of property,
required to be ascertained for that purpose, must be ascertained
by the court, unless it has been fixed by the decision or report, or
by the verdict of the jury, upon which the final judgment is
entered; except that, in case of actual partition, it must be deter-
mined by the commissioners.

[Code § 3262. The third sentence omitted is to be included in separate
section or rule. Included by Board in Costs Law, § 168.]

§ 1510. Report, decision or direction for judgment to
specify parties entitled to discretionary costs. [in a case
w] Where the costs are in the discretion of the court, the report or
decision, or the direction of the court for final judgment, upon a
default or after a jury trial, must specify which party or parties
are entitled to costs{[; but the amount of the costs must be ascer-
tained by taxation].

[Code § 3262, third sentence, without change of substance. Omitted by
Board as unnecessary.]

§ 1511. Notice of taxation. Costs may be taxed upon notice
to the attorney for each adverse party who has appeared and
is Interested in reducing the amount thereof. Notice of taxa-
tion must be served not less than five days before the taxation,
unless the attorneys serving and served with the notice all reside
or have their offices in the city or town where the costs are to be
taxed, in which case, a notice of two days is sufficient. A copy of
the bill of costs, specifying the items, with the disbursements
stated in detail, must be served with the notice of taxation.

[Code § 3263, without change. Included by Board in Costs Law, § 169.]

§ 1512. Retaxation. Costs may also be taxed without notice.
But where they are so taxed, notice of retaxation thereof [must],
immediately afterwards, must be given as prescribed in the last
section, by the party at whose instance they were taxed; in de
Civin Pracrios Aur 711

fault whereof, the court [must], upon the application of a party
entitled to notice, must direct a retaxation, with costs of the mo-
tion, to be paid by the party in default. The court [may], in its
discretion, upon the application of a party interested, may direct
a retaxation of costs at any time. Any sum deducted upon a
retaxation must be credited upon the execution or other mandate
issued to enforce the judgment.

[Code § 3264, without change. Included by Board in Costs Law, §§ 137,
138.]

§ 1513. Review of taxation or retaxation. A taxation or
a retaxation may be reviewed by the court upon a motion for a
new taxation. The order made upon such a motion may allow or
disallow any item objected to before the taxing officer, in which
case, it has the effect of a new taxation; or it may direct a new
taxation before the proper officer, specifying the grounds or the
proof upon which the item may be allowed or disallowed by him.

[Code § 3265, without change. Included by Board in Costs Law, § 170.]

§ 1514. Duty of taxing officer. An officer authorized to tax
costs in an action or a special proceeding [must], whether the taxa-
ation is opposed or not, must examine the bills presented to him for
taxation; must satisfy himself that all the items allowed by him
are correct and legal; and must strike out all charges for fees,
other than the prospective charges expressly allowed by law,
where it does not appear that the services for which they are
charged were necessarily performed.

[Code § 3266, without change. Included by Board in Costs Law, § 171.]

§ 1515. Affidavit respecting disbursements; when neces=
sary. A charge for the attendance of a witness cannot be
allowed without an affidavit stating the number of days of his
actual attendance, and, if travel fees are charged, the distance for
which they are allowed. A charge for a copy of a document or
paper cannot be allowed without an affidavit stating that it was
actually and necessarily used, or was necessarily obtained for use.
An item of disbursements in a bill of costs cannot be allowed in
any case unless it is verified by affidavit and appears to have
been necessarily incurred and to be reasonable in amount.

[Code § 3267, without change. Included by Board in Costs Law, § 8.]
b .
712 Revorr or Joiny Leaistarive ComMirres

Section 1516.
1517.
1518.
1519.
1520.
1521.

1522,
1528.

1524,
1525.
1526.
1527.
1528.
1529.

1530.

1531.
1582.
1583.
1584.
1535.
1536.

1537,
15388.
1539.
1540.
1541.
1542.

1543.

ARTICLE 89
FEES

Fees of witnesses generally.

Fees of witnesses on deposition.

Party or attorney not entitled to witness’ fee.

Fees of trial jurors.

Fees and mileage of grand and trial jurors.

Fees of trial juror upon protracted trial or proceed-
ing.

Fees of juror in special proceeding.

Presentation of claims for jurors’ fees, disposition

of unclaimed fees.

Fees of stenographers.

Fees of referees generally.

Fees of referees upon sales of real property.

Commissions of receiver.

Commissions of trustee.

Fiduciaries may include costs of bond as necessary
expense.

Fees of surveyor or commissioner in action for par-
tition or dower.

Fees of printers.

Fees of the clerk of the court of apie

Fees of clerks of courts of record generally.

Fees of county clerks generally.

Fees of register and other clerks.

Certain sections not applicable to counties com-
prising city of New York.

Fees of county clerks in counties comprising city
of New York.

Fees of recording officers in counties comprising
city of New York

Fees of sheriff.

Collection of sheriff’s fees on execution.

Fees of coroner. ,

Fees of deputy sheriffs and constables attending
courts.

Fees of county treasurer and of chamberlain of

City of New York.
(Civin Practice Act 7138

Section 1544. Fees of officer for oath or acknowledgment.

1545. Fees of officer for certification or exemplification.

1546. Fees and expenses of officer to be paid before trans-
mission of paper.

1547. Taxation of officer’s fees.

1548. Effect of article on special statute.

1549. Application of article to criminal action or pro-
ceeding.

§ 1516. Fees of witnesses generally. A witness in an
action or a special proceeding attending before a court of record
or a judge thereof is entitled, except where another fee is specially
prescribed by law, to fifty cents for each day’s attendance; and, if
he resides more than three miles from the place of attendance, to
eight cents for each mile going to the place of attendance.

[Code § 3318, without change. Jncluded by Board in Costs Law, § 185.]

§ 1517. Fees of witnesses on deposition. A witness attending
before a commissioner or an officer authorized to take his
deposition to be used without the state, in a case other than one
taken before a justice of the peace or before a commissioner
appointed by a justice of the peace [specified in section 3327 c*
this act], is entitled to two dollars for each day’s actual attend-
ance and to eight cents for each mile going to the place of
sitendance.

{Code § 3319, without change of substance. Included by Board in Costs
Law, § 186.]

§ 1518. Party or attorney not entitled to witness’ fee.
A party to an action or a special proceeding is not entitled to.a
fee for attending as a witness therein in his own behalf or in
behalf of a party who pleads jointly, or is united in interest, with
him; and an attorney or counsel in an action or special proceed-
ing is not entitled to a fee for attending as a witness therein in

behalf of his client.
[Code § 3288, without change. Included by Board in Costs Law, § 187.]

§ 1519. Fees of trial jurors. A trial juror in an action
or a special proceeding in a court of record is entitled, except as
otherwise specially prescribed by or pursuant to statute in a par-
T14 Report or Jory Lrearsnarive ComMiItrEer

ticular court or a particular county, to the following fees:
twenty-five cents for each cause in which he is empanelled, to be
paid by the party noticing the cause for trial; or, if it is noticed
. by more than one party, by the party whom the court directs to
pay it.
[Code § 3313, without change. Included by Board in Costs Law, § 89.]

§ 1520. Fees and mileage of grand and trial jurors. 1. In the
ecunties within the City of New York the board of aldermen,
in any other county the board of supervisors, may direct that a
sum, not exceeding four dollars in addition to the fees prescribed
in the last section, or in any other statutory provision, be allowed
to each grand juror and each trial juror for each day’s attendance
at a term of a court of record of civil or criminal jurisdiction
held within their county, and in any county wherein a court holds
evening or night sessions, or in any county in which the grand
jury holds evening or night sessions, the board of supervisors may
direct that a sum, not exceeding one dollar and fifty cents in
addition to the fees prescribed in this [section] or the last sec-
tion, or in any other statutory provision, be allowed to each grand
juror and to each trial juror for each evening or night’s attend-
ance at a term of a court of record of civil or criminal jurisdiction
held within their county. If a different rate is not otherwise
established as herein provided, each juror is entitled to five cents
for each mile necessarily traveled by him in going to and return-
ing from the term; but such board of aldermen or board of super-
visors may establish a lower rate.

2. A juror is entitled to mileage for actual travel once in each
calendar week during the term, except that in the counties of
Queens, Rockland and Orange, grand and trial jurors may be paid
four cents a mile for each mile necessarily traveled in going to
and returning, for each day of actual travel during the term, in
lieu of any other mileage. The sum so established or allowed must
be paid by the county treasurer upon the certificate of the clerk
of the court, stating the number of days that the juror actually
attended, and the number of miles traveled by him in order to
attend. Ifa juror in attendance at a term of a court of record
cannot reach his home upon the day he is excused from attend-
ance, he shall be entitled to compensation for an additional day,
and the clerk shall certify accordingly upon satisfactory proof of
such fact by affidavit. The amount so paid 7s @ county charge
‘Civin Practicr Act 415

and must be raised in the same manner as other county charges
are raised.

[Code § 3314, without change of substance. Included by Board in Costs
Law, §§ 90, 91, 95, and County Law, § 240, subd. 24.]

§ 1521. Fees of trial juror upon protracted trial or pro-
ceeding. Where the trial, by a jury, of an issue of fact, in
either a civil or a criminal action or special proceeding in a court
of record, occupies more than thirty days, the court, by an order
entered in the minutes, may fix and allow to each juror such an
extra compensation as it deems reasonable for his services there-
upon; the amount of which compensation, together with the
expenses actually and necessarily incurred for food for the
jurors during the trial, is a county charge.

[Code § 3315, without change. Included by Board in Costs Law, § 93.]

§ 1522. Fees of juror in special proceeding. A_ trial
juror sworn in a special proceeding before a judge of a court of
record; or upon a writ of inquiry; or upon a trial, before a sheriff.
of a claim to personal property seized by virtue of a warrant of
attachment or an execution; is entitled to twenty-five cents, to be
paid by the person at whose instance the jury is empanelled.

[Code § 3316, without change. Included by Board in Costs Law, § 92.]

§ 1523. Presentation of claim for jurors’ fees; disposi-
tion of unclaimed fees. Al]l jurors, including those in a crim-
inal action or special proceeding in a court or before an officer,
duly summoned and who served as provided for by the laws of
this state and are entitled to payment therefor, must present their
claims to the proper official designated by law for the payment of
juror’s fees, on or before the thirty-first day of December of the
year succeeding or following the year in which such services were
rendered and performed, and failure to comply with this pro-
vision shall be a forfeiture of the payment for such claims or
services thereafter. All notices issued, requiring jurors to attend
at a term of court or at a meeting of the grand jury, shall have
printed thereon the foregoing provision relating to forfeiture of
fees. All moneys or jurors’ fees forfeited by the provisions of
this section shall be transferred and applied to the fund of such
716 Reporr or Jomr Leaisnative ComMirrrer

county or city, from which they were paid, on or before the first
day of March in each year.

[Code § 3331-a, without change. Included by Board in Costs Law, § 96.
See Judiciary Law, § 749-h.]

§ 1524. Fees of stenographers. Except where otherwise
agreed or when special provision is otherwise made by statute, a
stenographer is entitled, for a copy fully written out from his
stenographie notes of the testimony or any other proceeding
taken in an action, or a special proceeding in a court of record, or
before a judge or justice thereof, and furnished upon request to
a party or his attorney, to the following fees for each folio:

1. In a trial term of the supreme court, or at a special term
of the supreme court in the third, fourth, fifth, sixth, seventh or
eighth judicial districts, six cents;

2. [ij/m any other court or courts, ten cents; [and f]

8. For the copy of the testimony required to be made in any
proceeding for the record of the surrogate’s court of the counties
of New York, Bronx, Kings and Erie, ten cents; and the surro-
gate may order that the fees for such record copy be paid out
of the estate to which the proceeding relates.

[Code § 3311, without change. Included by Board in Costs Law, § 165.]

§ 1525. Fees of referees generally. A referee in an
action or a special proceeding brought in a court of record, or in a
special proceeding supplementary to an execution against prop-
erty, [taken as prescribed in title twelve of chapter seventeen of
this act,J is entitled to ten dollars for each day spent in the busi-
ness of the reference; unless at or before the commencement of
the trial or hearing a different rate of compensation is fixed by
the consent of the parties, other than those in default for failure
to appear or plead, manifested by an entry in the minutes of the
referee, or otherwise in writing, or a smaller compensation is
fixed by the court or judge in the order appointing him.

[Code § 3296, without change of substance. Included by Board in Costs
Law, § 134.]

§ 1526. Fees of referees upon sales of real property.
The fees of a referee appointed to sell real property pursuant toa
judgment in an action are the same as those allowed to the sheriff,
and he is allowed the same disbursements as the sheriff. Where a
Crviz Pracricr Act 17

referee is required to take security upon a sale, or to distribute, or
apply, or ascertain and report upon the distribution or application
of any of the proceeds of the sale, he is also entitled to one-half of
the commissions upon the amount so secured, distributed or
applied, allowed by law to an executor or administrator for receiv-
ing and paying out money. But commissions shall not be allowed
to him upon a sum bidden by a party, and applied upon the party’s
demand as fixed by the judgment, without being paid to the
referee, except to the amount of ten doilars. And a referee’s com-
pensation, including commissions, [cannot,] where the sale is un-
der a judgment in an action to foreclose a mortgage, cannot exceed
fifty dollars, unless the property sold for ten thousand dollars or
upwards, in which event the referee may receive such additional
compensation as to the court may seem proper, or in any other
cause five hundred dollars.

[Code § 3297, without change. Included by Board in Costs Law, § 135.]

§ 1527. Commissions of receiver. A receiver, except as
otherwise specially prescribed by statute, is entitled, in addition
to his necessary expenses, to such commissions, not exceeding five
per centum upon the sums received and disbursed by him, as the
court by which, or the judge by whom, he is appointed allows. But
if in any case the commissions of a temporary or permanent
receiver, so computed, shall not amount to one hundred dollars,
said court or judge [may]. in its or his discretion, may allow said
receiver such a sum, not exceeding one hundred dollars, for his
commissions as shall be commensurate with the services rendered
by said receiver.

[Code § 3320, first two sentences, without change. Included by Board in
Costs Law, § 128.]

§ 1528. Commissions of trustee. Except as otherwise
prescribed in regard to a testamentary trustee, a trustee of an
expressed trust is entitled, and two or more trustees of such a
trust are entitled, to be apportioned between or among them accord-
ing to the services rendered by them respectively, as compensation
for services as such, over and above expenses, to commissions as
follows:

1. For receiving and paying out all sums of principal not
exceeding one thousand dollars, at the rate of five per centum.
718 Rerorr or Joint Legistative Comarrrer

2. For receiving and paying out any additional sums of prin-
cipal not exceeding ten thousand dollars, at the rate of two and
one-half per centum.

8. For receiving and paying out all sums of principal above
eleven thousand dollars, at the rate of one per centum. (Andj

4. [f] for receiving and paying out income in each year, at the
like rates.

5. In all cases a just and reasonable allowance must be made
for the necessary expenses actually paid by such trustee or
trustees. :

6. If the value of the principal of the trust estate or fund
equals or exceeds one hundred thousand dollars, each such
trustee is entitled to the full commission on principal, and
on income for each year, to which a sole trustee is entitled,
unless the trustees are more than three, in which case three full
commissions at the rate aforesaid must be apportioned between or
among them according to the services rendered by them respec-
tively.

7. If the instrument creating the trust provides specific
compensation for the services of the trustee or trustees, no other
compensation for such services shall be allowed unless the trustee
or trustees [shall], before receiving any compensation for such
services, shall renounce such specific compensation by a written
instrument duly acknowledgedf[, renounce such specific compen-
sation}.

[Code § 3320, part without change of substance. Included by Board in
Costs Law, § 182.]

§ 1529. Fiduciaries may include cost of bonds as necessary
expense. [Any] A receiver, assignee, guardian, trustee, com-
mittee, executor, administrator or person appointed under section
one hundred and eleven of the real property law or under section
twenty of the personal property law, required by law to give a bond
as such, may include as a part of his necessary expenses such
reasonable sum, not exceeding one per centum per annum upon
the amount of such bond paid his surety thereon, as such court or
judge allows.

{Code § 3320, third sentence, without change. Included by Board in Costs
Law, § 129.]

§ 1530. Fees of surveyor or commissioner in action for
partition or dower. A surveyor, employed as prescribed by
(Crvit Pracricr Act 719

law, in an action for partition or dower, or to determine dower, is
entitled to five dollars for each day actually and necessarily
occupied in surveying, laying out, marking, or mapping land
therein. Each assistant so employed is entitled to two dollars
for each day actually and necessarily occupied in serving under
the surveyor’s direction. Each commissioner appointed as pre
seribed by law to make partition or admeasure dower is entitled
to five dollars for each day’s actual and necessary service.

[Code § 3299, without change. Included by Board in Costs Law, §§ 58,
119.] :

§ 1531. Fees of printers. Except as otherwise specially
prescribed by law, the proprietor of a newspaper is entitled for
publishing summons, notice, order, citation or other advertise-
ment, required by law to be published, other than the session laws,
for each folio, to seventy-five cents for the first insertion and fifty
cents for each subsequent insertion. In counties containing
wholly or partially cities of the first class, except in the city of
New York, the proprietor of a newspaper is entitled for publish-
ing such notices, matters and advertisements aforesaid, other than
the session laws, for each folio, to one dollar for the first insertion
and seventy-five cents for each subsequent insertion; and in the
city of New York, to twelve cents per agate line of thirty ems for
each insertion. Jf such notices, matters and advertisements afore-
said, other than the session laws, are printed in type other than
agate, the proprietor of a newspaper shall be entitled to the num-
ber of lines such notices, matters and advertisements would oceupy
set in agate thirty ems to the line. [The compensation for pub-
lishing the session laws must be fixed by the board of supervisors
at not more than fifty cents for each folio.J

[Code § 3317, without change. Included by Board in Costs Law, § 126.
Last sentence in brackets omitted. To be included in County Law or Legis-
lative Law.]

§ 1532. Fees of the clerk of the court of appeals. The
clerk of the court of appeals is entitled, for the services specified
in this section, to the following fees:

For filing a notice of appeal to that court, and all the papers
transmitted therewith, fifty cents.

For filing any other paper, ten cents.

For drawing an order, twenty cents for each folio.
420 Revorr or Joint Lecistative Commirrre

For entering an order, twenty cents; and for each folio more
than two, ten cents.

For drawing a judgment, twenty-five cents; and for each folio
more than two, ten cents.

For entering a judgment, twenty-five cents; and for each folio
more than two, ten cents.

For a certified copy of an order, record or other paper entered
or filed in his office, ten cents for each folio.

For engrossing a remittitur, ten cents for each folio.

For a certificate, other than that a paper for the copying of
which he is entitled to a fee is a copy, twenty-five cents.

For sealing any paper when required, fifty cents.

[Code § 3300, without change. Included by Board in Costs Law, § 40.]

§ 1533. Fees of clerks of courts of record generally.
[Except as otherwise prescribed in the next section, e]#ach clerk
of [the] a court of record, except the clerk of a surrogate’s court,
of the city court of the City of New York, of the city court of
Yonkers, of the city court of Albany, or of a mayor’s or recorder’s
court, is entitled, for his services in an action or a special proceed-
ing brought in or transferred to the court of which he is clerk, to
the following fees:

1. Upon the trial of the action, or the hearing, upon the merits,
of the special proceeding, from the party bringing it on, one
dollar.

2. For entering final judgment in the action, or entering a final
erder in the special proceeding, including the filing of the judg-
ment-roll and a copy of the judgment to insert therein, fifty
cents; and ten cents in addition for each folio, exceeding ten, con-
tained in the order or judgment.

8. For entering any other order or an interlocutory judgment,
ten cents for each folio exceeding five.

4. For a certified or other copy of an order, record or other
paper, entered or filed in his office, five cents for each folio.

5. Where, on an appeal from a judgment or order, a party shall
present to the clerk a printed copy of the judgment-roll or order
appealed from, it shall be the duty of the clerk, as required, to
compare and certify the same, for which service he shall be
entitled to be paid at the rate of one cent per folio.

6. For a certified transcript of the docket of a judgment, twelve
cents,
Crvit Practice Acr 721

7. For filing a transcript or docketing or re-docketing a judg-
ment thereupon, six cents.

8. [He is not entitled to any fee or other compensation for] For
any other service in an action or a special proceeding in the court
he is not entitled to any fee or other compensation, except that
where he is also county clerk, he may charge fees as prescribed in
the next section [3304 of this act], subject to the limitations
therein contained.

[Where the attorneys for all the parties interested, other than
parties in default or against whom a judgment or a final order has
been taken, and is not appealed from, stipulate in writing that a
paper is a copy of any paper whereof a certified copy is required
by any provision of this act, the stipulation takes the place of a
certificate, as to the parties so stipulating, and the clerk is not
required to certify the same or entitled to any fee therefor.

And the paper so proved by stipulation shall be received by the
clerks of all the courts and by the courts and shall be used or
filed with the same force and effect as if certified by a clerk of the
court. J

[Code §§ 3301, 3302. The italicized matter in first paragraph is a substi-
tute for § 3302. The last two paragraphs omitted by inclusion in brackets

is under “Stipulation” in general practice provisions. The above sections
included by Board in Costs Law, § 39, and rule 66.]

§ 1534. Fees of county clerks generally. A county clerk
is entitled, for the services specified in this section, except where
another fee is allowed therefor by special statutory provision, to
the following fees to be paid in advance:

1. For searching and certifying the title to and incumbrances
upon real property, for each year for which the search is made.
for each name, and each kind of conveyance or lin, five cents.

2. For a copy of an order, record or other paper entered or
filed in his office, eight cents for each folio.

8. For filing a transcript of a docket of a judgment and making
an entry of the suspension of the judgment [as prescribed in sec-
tion 1258 of this act], twelve cents.

4. For issuing an execution upon a judgment, a transcript
whereof, or of the docket of which, has been filed in his office,
fifty cents, to be paid by the party at whose request the execution
is issued, and to be collected by the sheriff in addition to the sum
due upon the judgment.
4292 Reporr or Joint Leqistatrtve CoMMirrEe

5. For recording and indexing a notice of the pendency of an
action, filed in his office, ten cents for each folio contained in the
notice.

6. For canceling such a notice, or a notice of attachment filed
in his office, [as prescribed in section 649 of this act,] twenty-
five cents.

7. For recording any instrument which [must or may] legally
must or may be recorded by him, ten cents for each folio.

8. For filing a certificate of satisfaction, or other satisfaction-
piece of a mortgage, and entering the satisfaction, twenty-five
cents.

9. For affixing and indexing a notice of foreclosure of a mort-
gage [[as prescribed in section 2390 of this act], twenty-five cents.

10. For entering a minute that a mortgage has been foreclosed,
ten cents. .

11. For filing and entering a satisfaction [of] or an assign-
ment of a judgment, twelve cents.

12. For filing and entering the bond of a collector or other
officer authorized to receive taxes, twelve cents.

18. For searching for such a bond, six cents.

14. For entering satisfaction thereof, twelve cents.

15, For sealing any paper, when required, twelve cents.

16. For filing and docketing notice of a mechanic’s lien. ten
cents.

17. For filing and entering specifications and all other papers
relating to a lien against a vessel, twenty-five cents.

18. For filing any paper required by law to be filed in his
cffice, other than as expressly provided for in this section, six
cents.

19. For filing any paper deposited with him for safe keeping,
six cents; and for searching for such a paper, when required, three
cents for each paper necessarily opened and examined.

20. For a certificate, other than that a paper for the copying of
which he is entitled to a fee is a copy, twenty-five cents.

21. For inquiring into, determining, and certifying the suffi-
ciency of the sureties of a sheriff, fifty cents.

22. For attending upon the canvassing of votes given at an
election, two dollars.

23. For drawing the necessary certificates of the result of the
canvass, eighteen cents for each folio; and for the necessary copies
thereof, nine cents for each folio.
Civit Pracricr Act 723

24. For notifying the governor that any person has taken an
oath of office, ten cents and the necessary postage.

25. For notifying the governor that any person has neglected to
take an oath of office, or to file or renew any security, within the
time prescribed by law, or of a vacancy in an office in his county,
ten cents and the necessary postage.

26. For notifying any -person of his appointment to office,
twenty-five cents, and the expenses, actually and necessarily
incurred in giving the notice, which the comptroller deems
reasonable.

27. For entering, in the minutes of the county court, a license
to keep a ferry, and for a copy thereof, one dollar.

28. For taking and entering a recognizance, from any person
authorized to keep a ferry, twenty-five cents.

29. [The county clerk shall be entitled to receive, {Jor making
the entries required of him by law of moneys deposited with the
county treasurer, the sum of fifty cents in each case, to be paid
by the party to the action or proceeding, and taxed as a disburse-
ment therein.

80. [But aA county clerk is not entitled to any fee under this
section for a copy of, or for filing or certifying, any paper in a
civil action or special proceeding in a court of which he is ex-
officio clerk.

81. [The last] This section does not affect any special. statu-
tory provision remaining unrepealed after this act [title] takes
effect, whereby a fee different from the fee therein allowed is
allowed to the clerk of any county [the city and county of New
York, or of the county of Kings, for a service therein specified.

[Code § 3304, without change of substance. The change of “of” to “or”
in subd. 9 is to correct an error made by amendment of section in 1896.

Subd. 29 is Code § 3306-a, subd. 31 is Code § 3305. All included by Board
in Costs Law, § 48.] ‘

§ 1535. Fees of register and other clerks. The register of
any county: or the clerk of any court of record is entitled for any
services specified in the last preceding section [thirty-three hun-
dred and four], which he is authorized to perform, to the fees
specified therein, subject to the qualifications therein contained,
unless a different fee therefor is fixed by statute.

{Code § 3306, without change, Included by Board in Costs Law, § 39,
subd. 10, and § 136.] iy 4
724 Revorr or Jormnt Leaisuartve Commrrrer

§ 1536. Certain sections not applicable to counties com-
prising City of New York. The provisions of sections [thirty-
three hundred and one, thirty-three hundred and four, thirty-
three hundred and five-a, subdivision four of section thirty-
three hundred and seven and section thirty-three hundred and
thirty-two] fifteen hundred and thirty-three, fifteen hundred and
thirty-four, fifteen hundred and forty-five, fifteen hundred and
forty-nine and subdivision four of section fifteen hundred and
thirty-nine of this [chapter] act shall not apply to the county
clerks of the county clerks of the counties of New York, Kings,
Bronx, Queens and Richmond.

The provisions of section [thirty-three hundred and fourJ
fifteen hundred and thirty-four of this act shall not apply to the
registers of the counties of New York, Kings and Bronx, nor to
the county clerks of Queens and Richmond when acting as record-
ing officers.

[Code § 3332-a, as added by L. 1917, ch. 677, and § 3333-c, as added by L.
1917, ch. 467.]

§ 1537. Fees of county clerks in counties comprising
City of New York. Except where a greater fee is allowed by
another statute for the same service, the county clerks of the
counties of New York, Kings, Bronx, Queens and Richmond are
entitled for the services specified in this section to the following
fees, to be paid in advance:

1. Upon the trial of an action or the hearing upon the merits
of a special proceeding, excepting litigated motions and applica-
tions for writs, from the party bringing it on, one dollar.

2. For placing a cause on the special term calendar for the
trial of an issue of fact in the supreme court, three dollars.

3. For placing a cause on the trial term calendar in the supreme
court, three dollars.

4, For placing a cause on the trial calendar of the county
court, three dollars.

5. For entering judgment in the action or entering a final order
in the special proceeding, except non-recorded orders on litigated
motion and applications for writs, one dollar, and ten cents for
each name that the judgment or order directs that it be docketed
against.

6. For taxing a bill of costs, fifty cents.
Cryin Practicr Acr 725

7. For certifying, except in criminal cases, a prepared copy of
an order, record or other paper entered or filed in his office, five
cents for each folio, but the minimum total charge shall be twenty-
five cents.

s. For preparing and certifying a copy of an order, record or
other paper entered or filed in his office, fifteen cents for each
folio.

9. For a certified transcript of the docket of a judgment or
other lien, twenty-five cents.

10. For filing a transcript of judgment, twenty-five cents, and
ten cents additional for each name against which the judgment
is docketed.

11. For searching for and certifying to an incumbrance upon
real property, or any record in his office, for which search is
made, for each year the sum of fifteen cents, for each name and
for each kind of conveyance, lien or record searched, except that
he shall be entitled to a minimum fee of twenty-five cents for
each search made.

12. For filing a transcript, and making an entry as prescribed
in section five hundred and thirty-three [twelve hundred and fifty-
eight] of this act, twenty-five cents.

13. For issuing an execution upon a judgment, a transcript
whereof, or of the docket of which, has been filed in his office,
fifty cents, to be paid by the party at whose request the execution
is issued.

14. For filing and recording notice of pendency of action,
notice of attachment against real property or amending the same,
one dollar, and five cents additional for each name indexed
against and twenty-five cents for each additional block in which
the notice is to be entered.

15. For cancelling such notice or a notice filed in his office
as prescribed in section [six hundred and forty-nine] nine hun-
dred and thirty-one of this act, fifty cents, and twenty-five cents
for each additional block in which notice is entered.

16. For recording any instrument not otherwise provided for
herein which must or may be legally recorded by him, ten cents
for each folio.

17. For filing a certificate of satisfaction of judgment, fifty
cents.

18. For affixing and indexing a notice of foreclosure of a
mortgage, as prescribed in section [twenty-three hundred and
726 Rerort or Jomtr Leaisuative ComMItrren

ninety of this act] five hundred and forty-three of the real prop-
erty law, fifty cents.

19. For entering a minute that a mortgage has been foreclosed,
ten cents.

20. For filing a modification of or entering a satisfaction,
assignment, reversal, cancellation or amendment of a lien, twenty-
five cents.

21. For sealing any paper, when required, twenty-five cents.

22. For filing and docketing notice of a mechanic’s lien,
twenty-five cents, and ten cents per name additional for each and
every person, firm or corporation against whose name the lien is to
be docketed, and in addition, twenty-five cents for each additional
block under which the lien is to be indexed.

23. For filing and entering specifications and all other papers
relating to a lien against a vessel, one dollar.

24. For filing any paper deposited with him for safe keeping,
twenty-five cents.

25. For every certificate issued by him, the fee shall be twenty-
five cents.

26. For inquiring into, determining and certifying the sufli-
ciency of the sureties of a sheriff, fifty cents.

27. For attending upon the canvassing of votes given at an
election, two dollars.

28. For drawing the necessary certificates of the result of the
canvass, eighteen cents for each folio; and for the necessary
copies thereof, nine cents for each folio.

29. For entering in the minutes of the county court a license
to keep a ferry, and for a copy thereof, one dellar.

30. For taking and entering a recognizance from any person
authorized to keep a ferry, twenty-five cents.

31. For filing a building loan contract or any modification
thereof, fifty cents, and five cents per name additional for docket-
ing against each and every person, firm or corporation against
whose name an entry is to be made, and for each block under
which the instrument is to be indexed, twenty-five cents.

32. For filing and entering a summons in an action or a peti-
tion in any proceeding in the supreme or county court as required
by section [twelve hundred and forty-five-a of this act] one hun-
dred and seventy-two or one hundred and seventy three of the
county law, fifty cents, except that no charge shall be made for
filing a petition for the appointment of a guardian ad litem.
Crvin Practice Act TOT

33. For filing and entering an order directing the city cham-
berlain to pay out money, fifty cents.

34. For filing certificate showing deposit with city chamber-
lain or referee’s report showing surplus, fifty cents.

35. For issuing a certificate of appearance and notice of claim
filed, fifty cents.

36. For producing papers, documents, books or records on file
in his office, under a subpoena duces tecum, if within the county
where the public office is situated, fifty cents; if within any other
county, one dollar additional for each day or part thereof, the
messenger is detailed from the office, in addition to mileage fees
of eight cents per mile and the necessary expeases of messenger.

37. For filing a certificate of qualification as medical examiner
in lunacy, one dollar.

38. For filing and indexing a certificate of appointment as
commissioner of deeds, fifty cents.

39. For filing and indexing any bond and undertaking in any
action or proceeding, except bonds or undertakings on assign-
ments, injunctions and attachment of property in the county of
New York, fifty cents.

[Code § 3332-b, as added by L. 1917, ch. 677, and amended by L. 1918, ch.
316.]

§ 1538. Fees of recording officers in counties compris=
ing City of New York. The registers of the counties of New
York, Kings and Bronx, and the county clerks of the counties
of Queens and Richmond, when acting as recording officers, are
entitled for services specified in this section, to the following fees
to be paid in advance:

1. For recording any instrument, fifteen cents for each folio.

2. For indexing or entering any instrument upon the block
index, fifty cents for each block indexed against.

3. For filing a certificate of satisfaction of a mortgage, twenty-
five cents; for entering a minute of such satisfaction, twenty-five
cents; for examining each assignment of such mortgage, twenty-
five cents; and an additional charge of twenty-five cents for each
record of discharge entered upon the block or alphabetical index.

4. For filing any paper other than satisfaction, chattel mort-
gage, bill of sale, conditional bill of sale or other instrument
affecting chattels, twenty-five cents.
728 Rerort or Joivy Leaisnarive ComMirrer

5. For filing and indexing a certificate of the appointment of
a notary public or of a commissioner of deeds, twenty-five cents.

6. For the production for examination within the office of any
filed paper affecting chattels, five cents.

7. For sealing any paper when required, twenty-five cents.

8. For every certificate issued by the register, or county clerk
when acting as register, twenty-five cents.

9. For searching and certifying the title to or an incumbrance
or lien upon real property, five cents per year for each name
against which the search is made, and five cents for each separate
piece or parcel of property not consisting of contiguous lots, and
five cents additional for each return made of any conveyance or
hen. found.

10. For preparing and certifying a copy of a paper filed or
recorded in the office, fifteen cents for each folio.

11. For certifying a prepared copy of a paper filed or recorded
in the office, ten cents for each folio.

12. For filing a chattel mortgage, an absolute or conditional
bill of sale of chattels, an agreement affecting chattels, or a copy
of the foregoing, or a notice of len on merchandise, or an_assign-
ment of any such instrument, ten cents.

13. For examining each instrument as above stated, upon the
filing of an assignment thereof for a cross reference thereto, ten
cents.

14. For entering a chattel mortgage or other instrument affect-
ing chattels, in each book as prescribed by law, ten cents for
each party to the instrument. When the amount involved in a
chattel mortgage or other instrument affecting chattels is one
hundred thousand dollars or more, the fee for filing and entering
the same or any renewal thereof shall be one dollar for each one
hundred thousand dollars or fraction thereof, as set forth in
the instrument. Every instrument affecting chattels must be
endorsed on the face thereof with the character of the instrument,
the names of all the parties thereto and the location of the prop-
erty affected thereby.

15. For searching the index books for a chattel mortgage or
other instrument affecting chattels, wpon a request specifving the
names and periods to be searched, five cents for each month for
each name.

16. For issuing a receipt for a chattel mortgage, bill of sale,
conditional bill of sale, or other instrument affecting chattels, or
a certificate for 2 copy of any such instrument, twenty-five cents.
Cri, Pracrice Aci 729

17. For filing and indexing each map, fifty cents, and twenty-
five cents for each square foot or major part thereof of map
surface.

18. For copying any map which he may record, copy or certify,
such reasonable fees for the service as may be fixed by the
register, or county clerk when acting as register, subject to the
revision of the supreme court, by which the same may be taxed.

19. For returning recorded instruments by mail, five cents for
each instrument, and for any other papers, the necessary postage.

20. The register, or county clerk when acting as register, may
fix the fee for any service rendered by him, and for which no
fee is herein specified, subject to review by the supreme court.

[Code § 3332-d, as added by L. 1917, ch. 467.]

§ 1539. Fees of sheriff. A sheriff is entitled for the
services specified in this section to the following fees:

1. For serving a summons with or without either a copy of tke
complaint, or a notice stating the sum of money for which judg-
ment will be taken or a notice of no personal claim [specified in
section four hundred and nineteen or section four hundred and
twenty-three of this act], one dollar; except that in the counties of
New York, Kings, Bronx, Queens and Richmond, it shall be one
dollar and fifty cents; or for serving or executing an order of
arrest, or any other mandate, for the service or execution of which
vo other fee is specially prescribed by law, except a subpoena, one
dollar; except that in the counties of New York, Kings, Bronx,
Queens and Richmond, it shall be four dollars for each person
served or as to whom it is executed; and for necessary traveling
to serve or execute the same, six cents for each mile traveled, going
and returning; the traveling fees to be computed from the court
house of the county; or, if there are two or more court houses,
from that nearest to the place of service or execution. But where
two or more mandates are delivered to a sheriff, to he served upon
or executed against one person, at one time, in one action or
special proceeding; or where a mandate is served upon or executed
against two or more persons, in one action or special proceeding,
and in the course of one journey; the sheriff is entitled, in all, to
six cents only for each mile traveled.

2. For levying a warrant of attachment against the property
of a defendant, [issued as prescribed in title third of chapter
seventh of this act,] or for executing a requisition to replevy one
730 Revorr ov Jouve Leaisuavive Comarrree

or more chattels, one dollar; except that in the counties of New
York, Kings, Bronx, Queens and Richmond, it shall be five dol-
lars; and, also, such additional compensation for his trouble and
expenses in taking possession of and preserving the property as
the judge issuing the warrant, or in case of a replevin as the
court or a judge thereof, allows; and the judge or court may make
an order requiring the party liable therefor to pay the same to
the sheriff. For making and filing a description of real property,
or an inventory of personal property attached, twenty-five cents
for each folio; except that in the counties of New York, Kings,
Bronx, Queens and Richmond, it shall be fifty cents for each
folio; for each necessary copy thereof, twelve cents for each folio;
except that in the counties of New York, Kings, Bronx, Queens
and Richmond, it shall be twenty cents for each folio; together
with such compensation to the appraisers as the judge issuing
the warrant allows, not exceeding two dollars to each appraiser
for each day actually employed. For advertising during the
pendency of the action, personal property attached, the same fees
as are allowed to a sheriff for advertising personal property for
sale by virtue of an execution. If the action is settled either
before or after judgment, the sheriff is entitled to poundage upon
the value of the property attached, not exceeding the sum at which
the settlement is made.

3. For a copy, necessarily made by him, of a summons or other
mandate, or of a complaint, affidavit or other paper served by
him, where no fee therefor is specially prescribed by law, twelve
cents for each folio; except that in the counties of New York,
Kings, Bronx, Queens and Richmond, it shall be twenty cents
for each folio.

4. For notifying jurors to attend a trial term of a court of
record, fifty cents for each cause placed upon the calendar for
trial by a jury, to be paid by the party first putting the cause on
the calendar for that term. But the sheriff is not entitled to more
than one dollar and fifty cents for calendar fees in one action.
The clerk shall not put a cause upon the calendar, for trial by a
jury, until the fee specified in this subdivision is paid to him
for the use of the sheriff. And where the cause is tried at a sub-
sequent term without a new note of issue, [[as prescribed in sec-
tion nine hundred and seventy-seven of this act,] the party moy-
ing the trial must pay to the clerk for the use of the sheriff the
calendar fee or fees remaining unpaid. No sheriff who receives
Crvin Pracrice Actr 731
an annual salary in whole or in part for his services shall be
entitled to the fees provided by this subdivision, and in all counties
where the sheriff receives such annual salary, the clerk shall place
all causes upon the calendar for trial without the payment or col-
lection of any fee therefor.

5. For notifying jurors drawn to attend upon a writ of inquiry,
or to try the validity of a claim to personal property seized by
virtue of a warrant of attachment or an execution, or in obedience
to a precept issued by commissioners appointed to inquire con-
cerning the incompetency of a person to manage himself or his
affairs in consequence of idiocy, lunacy or habitual drunkenness,
or in any case not provided for in the last preceding subdivision
of this section, including the making and return of the inquisition
when required, for each juror notified, twenty-five cents; except
that in the counties of New York, Kings, Bronx, Queens and
Richmond, it shall be fifty cents for each juror notified. For
attending a jury when required, in such a case, two dollars;
except that in the counties of New York, Kings, Bronx, Queens
and Richmond, it shall be five dollars.

6. For receiving an execution against property, entering it in
his books, searching for property, and postage on the return
when made through the postoffice, fifty cents; except that in the
counties of New York, Kings, Bronx, Queens and Richmond, it
shall be one dollar and fifty cents. If required by the sheriff,
that fee, together with his fee for returning the execution, must
be paid, by the person in whose behalf the execution is issued, at
the time when it is delivered to the sheriff, who is not bound to
execute it unless the fee is so paid. Jor mileage upon an execu-
tion, for each mile, going only, ten cents, to be computed as pre-
scribed in subdivision [first] one of this section.

7. For collecting money by virtue of an execution, a warrant
of attachment, or an attachment for the payment of money in an
action or a special proceeding; or hy virtue of a warrant for the
collection of money, issued by the comptroller or by a county
treasurer; in any county, except New York, Kings, Bronx,
Queens, Richmond or Westchester, three per centum upon the
sum collected, not exceeding two hundred and fifty dollars, and
two per centum upon the residue of the sum collected; and in
either of the counties of New York, Kings, Bronx, Queens, and
Richmond, five per centum upon the first one thousand dollars col-
lected, two and one-half per centum on the next nine thousand
732 Rerorr ov Jounv Leaisvarive Com Mirren

collected, and one per centum on all sums over and above ten
thousand dollars; in the county of Westchester, two and one-half
per centum upon the sum collected not exceeding two hundred
and fifty dollars, and one and one-quarter per centum upon the
residue of the sum collected; and also, where an execution is
stayed after a levy, by order of the court or otherwise, or where
a levy is upon a live animal or speedily perishable property, such
additional compensation for his trouble and expenses in taking
care of and preserving the property as the court or a judge
thereof allows. Where a settlement is made after a levy by vir-
tue of an execution, the sheriff is entitled to poundage upon the
value of the property levied upon, not exceeding the sum at which
the settlement is made, and to the additional compensation, if
any, provided for in this subdivision.

8. For advertising real or personal property for sale by virtue
of an execution, warrant of attachment, or other warrants speci-
fied in the last preceding subdivision, two dollars, unless it is
stayed or settled before sale; and in that case, one dollar.

9. For making duplicate certificates of the sale of real prop-
erty by virtue of an execution, twenty-five cents for each folio.
For drawing and executing a conveyance upon a sale of real
property, two dollars, except that in the counties of New York,
Kings, Bronx, Queens and Richmond it shall be five dollars to
be paid by the grantee. The sheriff is also entitled to the
printer’s fees, as prescribed by law, paid by him for the publica-
tion, not more than six weeks, of a notice of the sale of real
property, and he may require the party. directing the sale to
advance the printer’s fees, in which case he must repay the same
out of the proceeds. Where the notice is published more than
six weeks, or the sale is postponed, the expense of continuing the
publication, or of publishing the notice of postponement, must
be paid by the person requesting it. Where two or more execu-
tions against the property of one judgment debtor are in the
hands of the sheriff at the time when the property is first adver-
tised, the sheriff is entitled to printer’s fees upon only one execu-
tion, and he must elect upon which execution he will receive the
same.

10. For returning any mandate which he is required by law
to return, twelve cents; except that in the counties of New York,
Kings, Bronx, Queens and Richmond, it shall be twenty-five
cents. For a certified copy of an execution, and of the return of
Crvin Practice Act 733
satisfaction thereupon, [delivered as prescribed in section twelve
hundred and sixty-six of this act,] twenty-five cents; except that
in the counties of New York, Kings, Bronx, Queens and Rich-
mond, it shall be fifty cents.

11. For posting and publishing the notice of sale, selling, and
conveying real property, in pursuance of a direction contained in
a judgment, the like fees as for the same services upon the sale
of real property by virtue of an execution; but where real prop-
erty is sold under a judgment in an action to foreclose a mort-
gage, the sheriff’s entire compensation cannot exceed fifty dollars.

12. For taking a bond for the liberties of the jail, one dollar.
For taking any other bond, or any undertaking which he is
authorized to take, fifty cents; except that in the counties of New
York, Kings, Bronx, Queens and Richmond, it shall be one dol-
lar, and the notary’s fees to any affidavit or acknowledgments.
For a certified copy of such a bond or undertaking, twenty-five
cents; except that in the counties of New York, Kings, Bronx,
Queens and Richmond, it shall be fifty cents.

13. For executing any mandate requiring him to put a person
into possession of real property, other than a warrant specified in
subdivision eighteen of this section, and removing the person in
possession, one dollar and fifty cents; except that in the counties
of New York, Kings, Bronx, Queens and Richmond, it shall be
five dollars and the same travel fees as upon the service of a
summons.

14. For each person committed to or discharged from prison,
in an action or a special proceeding, one dollar, to be paid by the
person at whose instance he is imprisoned. For attending before
an officer for the purpose of surrendering a prisoner, or receiving
into custody a prisoner surrendered, in exoneration of his bail,
including all his services upon such a surrender or receipt, one
dollar.

15. For attending a view, two dollars for each day, and for
traveling, going and returning, eight cents for each mile.

16. For bringing up a prisoner upon a writ of habeas corpus
to inquire into the cause of detention, one dollar and fifty cents;
and for traveling to and from the jail, twelve cents for each mile.
For bringing up a prisoner upon any order substituted by this act
for any otic writ of habeas corpus, the same fees; and for attend-
ing the court or judge thereupon, one dollar for ‘each day. The
sheriff is entitled, in addition to the sums specified in this subdivi-
sion, to his actual and necessary expenses.
7384 Report or Jowwt Leeistative CowMirrre

17. For any services which may be rendered by a constable,
other than those specially provided for in this section, the same
fees as are allowed by law to a constable for those services.

18. For executing a warrant to remove any person from lands
belonging to the people of the state or to Indians, such a sum
as the comptroller audits and certifies to be a reasonable com-
pensation.

19. For giving notice of any general or special election, to all
the officers to whom he is required by law to give such a notice,
one dollar for each town or ward, in addition to the expense of
publishing the notices, as required by law; payable from the
county treasury.

20. For notifying constables to attend a court, fifty cents for
each constable notified.

21, For attending a term of a court which he is required by
law to attend, for each day, three dollars.

22. In the county of New York where a levy has been made
under a warrant of attachment and the warrant of attachment is
vacated or set aside by order of the court, the sheriff is entitled
to poundage upon the value of the property attached not exceed-
ing the amount specified in the warrant, and such additional com-
pensation for his trouble and expense in taking possession and
preserving the property as the judge issuing the warrant allows,
and the judge or court may make an order requiring the party at
whose instance the attachment is issued to pay the same to the
sheriff ; and in such county when said attachment has been other-
wise discharged by order of the court, he shall be entitled to the
poundage aforesaid and to retain the property levied upon until
his fees and poundage are paid by the party at whose instance the
attachment is discharged.

23. In the county of New York where an execution has been
vacated or set aside, the sheriff is entitled to poundage upon the
value of the property levied upon not exceeding the amount speci-
fied in the execution, and the judge or court may make an order
requiring the party liable therefor to pay the same to the sheriff,

[Code §§ 3307, 3308, without change of substance. TL. 1915, ch. 565, § 2,
repealed all other laws or sections of law affecting the counties of New York,

Kings, Bronx, Queens and Richmond, conflicting or inconsistent with the
above section, superseding § 3308. Included by Board in Costs Law, § 159.]

§ 1540. Collection of sheriff’s fees on execution. The
fees of a sheriff, upon an execution against property, other than
Civin Practice Act 135

those with respect to which it is specially prescribed by statute
either that they must be paid by a particular person or that they
may be included in the costs of the party in whose favor the
execution is issued, must be collected by virtue of the execution
in the same manner as the sum therein directed to be ecllected.

[Code § 3309, without change. Included by Board in Costs Law, § 160.]

$ 1541. Fees of coroner. A coroner is entitled for the serv-
ices specified in this section to the following fees:

1. For performing any duty of a sheriff in an action or a
special proceeding in which the sheriff [is], for any cause, is dis-
qualified, the same fees to which a sheriff is entitled for the same
services. .

2. For confining a sheriff in a house by virtue of a mandate,
and maintaining him while there, two dollars for each day, to be
paid by the sheriff, before he is entitled to be discharged.

[Code § 3310, without change. Included by Board in Costs Law, § 46.]

§ 1542. Fees of deputy sheriffs and constables attend=
ing courts. <A constable or a deputy sheriff is entitled, for attend-
ing a sitting of a court of record pursuant to a notice from the
sheriff, to a fee for each day’s actual attendance in any county in
the state, to be fixed by the board of supervisors thereof, and
mileage as allowed by law to trial jurors in courts of record; and
in any county where the court or grand jury holds evening or
night sessions, the board of supervisors may provide for additional
compensation to be allowed to each constable or deputy sheriff
for each evening or night session actually attended by him. Such
fees must be paid by the county treasurer upon the production of
the certificate of the clerk stating the number of days and even-
ings that the constable or deputy sheriff attended. If a constable
or deputy sheriff attending a sitting of a court of record pursuant
to a notice from the sheriff is unable to reach his home upon the
day he is excused from attendance, he shall he entitled to com-
pensation for an additional day, and the clerk shall certify accord-
ingly upon satisfactory proof of such fact by affidavit. [But
t]The provisions of this section shall not be applicable to the
counties of Kings, New York and Erie. [[All other acts or sec-
tions of acts conflicting herewith are hereby repealed.]

[Code § 3312, without change of substance. Included by Board in Costs
Law, § 43.]
736 Report or Jowwr Leaisiative Committee

§ 1543. Fees of county treasurer and of chamberlain
of City of New York. A county treasurer, or, in the city and
county of New York, the chamberlain, is entitled for the services
specified in this section to the following fees:

1. For receiving money paid into court, one-half of one per
centum upon the sum so received.

2. For paying out the same, one-half of one per centum upon
the sum so paid out.

8. For investing money, pursuant to the direction of a court,
one-half of one per centum upon the sum invested, not exceeding
two hundred dollars, and one quarter of one per centum upon the
excess over two hundred dollars.

4. For receiving the interest upon an investment and paying
the same to the person entitled thereto, one-half of one per centum
upon the interest so received and paid.

[Code § 3321, without change. Included by Board in Costs Law, § 49.]

§ 1544. Fees of officer for oath or acknowledgment. Any
officer authorized to perform the services specified in this section
and to receive fees therefor is entitled to the following fees:

1. For administering an oath or affirmation, and certifying
the same when required, except where another fee is spécially
prescribed by statute, twelve cents.

2. For taking and certifying the acknowledgment or procf of
the execution of a written instrument; by one person, twenty-five
cents; and by each additional person, twelve cents; for swearing
each witness thereto, six cents.

[Code § 3298. The section has also been included in Public Officers Law
as § 68-a. Included by Board in Costs Law, § 117.]

§ 1545. Fees of officer for certification or exemplifica-
tion. Whenever there shall be presented to any public officer for
certification or exemplification a previously prepared legibly
typewritten or printed copy of any document, paper, book or
record in such officer’s custody, the fees in such case for certifi-
cation or exemplification shall be at the rate of three cents for
each folio; but the minimum total charge for certification or
exemplification in all cases shall be twenty-five cents.

[Code § 3305-a. Included by Board in Costs Law, § 36. The section has
been included by the committee in Public Officers Law as § 66-a, but not

repealed. ]
Civin Practice Act BT

§ 1546. Fees and expenses of officer to be paid before

; transmission of paper. _ Each provision of, law [this act]

“requiring a judge, clerk or other officer to transmit a paper to

another officer, for the benefit of a party, is to be construed as

. ,Zequiring the transmission, only at the request.of the person so: to

be benefited, and upon payment by him. of the fees allowed by

law for the paper transmitted, or. any copy or certificate con-

nected therewith, and, the expenses specified in section sixty-eight
of the public officers law. [the last section].

[Code § -3292,, without. change of substance. Included by Board in Costs
‘Ties §$ 66.] 6

 § 1547. Taxation of officer's . fees. Each county clerk or
register of deeds who claims any fees by virtue of his office, and
each sheriff or coroner who, upon the collection of an execu-
tion, or the settlement either before or after judgment of an
action or a special proceeding, claims. any fees which have not
been taxed, must cause them to be taxed within the county, by a
justice of the supreme court or the county judge, upom the written
demand. of the person liable to,pay, the same[[, cause them, to be

_ taxed within the county, ] and upon notice.to the person making
the demand[, by a justice of the supreme court, or the county
judge]. After such a,demand is made, the officer cannot collect
_his fees until they have been so taxed.

[Code § 3287, without change. Included by Board in Costs Law, §:172.)
-§ 1548. Effect of article on ° special statute. This
article does not affect any provision elsewhere in this act, or n.any
other: statute renvaining unrepealed after thes act takes effect,
whereby fees or commissions are specially regulated or fixed in a
allele case, otherwise than as prescribed herein. |

“ [Substitute for Code § 3330. -Section 3331 omitted, upon: the ‘theory that
-this is a continuing: statute, without effecting changes of. substance, in. the
amount of costs, fees, etc.]

§ 1549. Application of article to criminal action or
proceeding. Except as otherwise expressly prescribed . [therein],
this [title] article does not apply to a service rendere ‘in a

criminal action or special proceeding in a court | or ‘before an

officer. Gahan a

[Code § 3332, without change. Included by Board in. Costs Law, ce
24.
“738 Report or Jotwr LeatsuAtive ComMMItrTrE

?

pip yee ek é Be by
‘ “SAVING CLAUSES; REPEAL; WHEN TO TAKE
EFFECT

Section ‘1550. ‘Act to: tipnly to actions and proceedings hereafter
is commenced.
“°1551. Pending actions and proceedings. |
vt 1552. Pending proceedings begun by state writ,
1553. Writs‘heretofore abolished.
1554. Application of certain provisions to various courts.
1555. Existing rights preserved.
1556. Posting or publication under special statutes.
1557. Special statttes applicable to actions against the
Re City of New York.
‘ 1558. Term and tenure of office.
; '1559.. Repeal of code of civil procedure.
1560. When act takes effect.

''§ 1550. ‘Act to apply to actions and proceedings hereafter
-commenced. This act shall apply. to all actions and special pro-
ceedings Hereafter commenced. In determining whether the action
or special proceeding has been commenced, for the purpose of
applying thereto the provisions of this act, the action or proceed-
ing shall not be deemed to ‘ave been commenced i in either of the
following ‘cases : ;
1. If, before this act bikes offect, a summons in an action, or
a: citation issued from a surrogate’s' court, has been served upon
one or more, but not upon all-of the persons to be served ;
i2. An order for the ‘service of a summons by publication has
, been made,’ but service thereunder. has not been completed;
3. If, in a special proceeding, elsewhere than in the surrogate’s
‘, court, the petition or other papers upon which. the first. order,
~' process: ‘ot other mandate may be made or issued, has not been
presented.

[See Code 8. 3348.) 0 ; he

1551. Pending actions and proceedings. Proceedings pur-
suant to law i in an action or special proceeding taken prior to the
‘time this act takes effect shall not be rendered ineffectual or
impaired by this act or by the repeal thercby of any provision of
the code of civil procedure, unless otherwise SRTEeSes, and subse-
Crviz Practice Act 739

quent proceedings in such action or special proceeding must be
conducted in accordance with the laws in force on the day before
this act takes effect, except as otherwise provided in this article,
and except that the court or judge may apply thereto, in the interest
of justice, any remedial provision of this act not inconsistent with
the proceedings theretofore had or taken in such action or special
proceeding. The provisions of article nine of this act are expressly
made applicable to pending actions and proceedings.
[See Code §§ 3349, 3352.]

§ 1552. Pending proceedings begun by state writ. The
substitution, by this act, of an order in place of a state writ shall
not impair a proceeding now pending, begun by such a writ; but
further proceedings therein, so far as practicable, shall be in
accordance with the provisions of this act, as though the proceed-
ings were begun by an order.

[New.]

§ 1553. Writs heretofore abolished. The omission from this
act of reference to a writ heretofore abolished shall not be deemed
to revive such writ.

[Proposed by reason of the omission of Code §§ 1293, 1983, and the sen-
tence of § 2100 abolishing the writ of consultation.]

§ 1554. Application of certain provisions to various courts.
A provision of this act which is a substantial re-enactment of a
provision of the code of civil procedure which, by the terms of
such code, was expressly made applicable to a specified court or
courts, shall be applicable to the same court or courts in the same
manner and to the same extent as the former provision.

[Code § 3347, pt.]

§ 1555. Existing rights preserved. The provisions of this
act, or the repeal of any provision of the code of civil procedure
thereby, shall not affect or impair any act done or right accrued
or acquired, or any liability, penalty, forfeiture or punishment
incurred or imposed, or any limitation or defense accrued or
established, prior to its enactment, but the same may be asserted,
enforced, prosecuted or inflicted in the same manner and to the
same extent as if this act had not been passed.

[See Code § 3352.]
740: Rerort or Joint Leaisnartvn Commirrer

§ 1556. Posting or publication under special statutes. Each
provision of this act, requiring the publication of a summons,
notice, or other paper, in one or more newspapers, or authorizing
or requiring a court, or a judge, to designate one or more news-
papers, in which puch a publication must, be made, or requiring
the posting of a notice or other paper, is to be construed as not
affecting any special provision of the statutes, remaining unre
pealed after the former provision takes effect, preseribing one or
more particular newspapers, in which such a publication must or
may be made, or one or more particular places 1 in which notices
or other legal papers must or may be posted, in a particular local-
ity, or ina particular « case.

'[Code, § 3340, without change.]

§ 1557. Special statutes applicable to actions against the
City of New York. Each provision of this act is to be construed
as not affecting any special provision of the statutes, remaining
unrepealed after the former provision takes effect, which is appli-
cable exclusively to an action against the mayor, aldermen; and
commonalty of the City of New York, including the recovery,
entry, and collection of a judgment in such an action.

[Code § 3341, without change. ]

§ 1558. Term and tenure of office. This act shall not affect
the title or tenure to any, office or employment or the salary or
emoluments thereof, but the same shall continue as heretofore until
modified or abolished,

[See Code § 3354; ‘Short: Practice Act, §, tats

t

§ 1559. Repeal of code of civil procedure. Chapter four hun-
dred and forty-eight of the laws of eighteen hundred and seventy-
six, chapter one Hundred ‘and seventy+ eight of the laws of eighteen
hundred and eighty, and all statutes amendatory theneot and
supplementary thereto, which constitute the code of civil procedure,
are hereby repealed.

§ 1560. When act takes effect... This, act shall take, effect, on
April fifteenth, nineteen hundred and, twenty.
SURROGATE COURT ACT

[741]
SURROGATE COURT ACT

AN ACT in relation to surrogates and the practice and proceedure

in surrogates’ courts.

The People of the State of New: York, represented in Senate
and Assembly, do enact as follows:

Article 1.

2.
3.

4,

“Im

co

10.
11.

12:

13.

14.

‘15.

SURROGATE COURT ACT
The surrogate and acting surrogate. (§§ 1-20.)
Officers of the surrogate’s court. (§§ 21-33.)
The surrogate’s court and its general qomedichon.
(§§ 34-47.)
Proceedings, how begun; pleadings and process ;

service of citation and other process, . ‘and proof
thereof. (§§ 48-62.) :

. Appearance; procedure; trial; sides and decrees.

(§§ 63-87.)

. General provisions relating to letters. (§§ 88-104.)
. Bonds and undertakings; sureties. (§§ 105-117.)
. Grant of administration ; acmnistaators. “(38 118-

136.)

. Production, probate and construction of wills; ‘execu-

tors; ancillary letters; testamentary trustees.
(S§§ ‘187-171. } :

Guardians. (§§ 172- 194. ) 7

Appointment of: appraisers ; inet discovery of
property. © (§§ 195-206.) a ie

Claims; payment of debts, legacies and expenses;
sales of real estate under power contained in will;
deposit of money and securities. (§§° 207-231.)

Disposition of real property and the income thereof.
(§§ 232-250.) :

Accounting; judicial settlement and decree.’ (§§ 251-
274.)

‘Costs and fees; commissions ‘and: compensation of

executors, administrators, guardians and trustees.

(§§ 275-285.) 7
ag + © 7 Fe we
744 Report or Joust Lecisinarive CommirrEek

Article16, Appeals. .\(§§ 286-808.) «4, boda, be
17. Probate of heirship. (§§ 309-811.)
18. Definitions; application of other laws. (§§ 212-
315.)
19. Laws repealed; when to take effect. (§§ 316, 317.)

ARTICLE 1
THE SURROGATE AND ACTING SURROGATE

Section: 1. _ Short title. ;
2. [2472.] Surrogate and acting surrogate; i official
designations.

5 p47 3.]] Seal of the surrogate and surrogate’s court.
4. [2474.] Surrogate, when. not to be counsel.
5 [2475.]. Surrogate liable for clerk’s acts.
6. [2476.] Surrogate, when. disqualified.
4. [2477.] Disqualification; when objection must be
taken.
8. [2478.]- Vacancy or See who to-act as surro-
i ‘gate.
9%. [2479.] iIf surrogate seaaehe ad ee to act.
10. [2480.] In he York county.
11.) [2481.], Proof of authority.
12. [2482.]}, When and how made.
13. [2483.] How authority superseded.
14. [2454 J] Temporary surrogate; when board of super-
., visors May appoint.
is: ‘T2486. J Compensation of [person]. acting [as]
“f - surrogate [in case of vacancy, disability
or disqualification].
16, [2486.] Books to' be kept by surrogate. .
17. [2487.]; Books to -be indexed; notation on margin as
to certain decrees.
‘18. [[2488.]; Papers and, books to be preserved and bonds
filed.
is anh, cee }: What papers to be ident to secretary
( of state. or state comptroller[; expenses
thereof].
20. [2490.] Incidental powers of the surrogate.
. Surroeate Courr Act. by T45

Section 1, Short title. This act shall be known as the “Surro-
gate, Court Act.” :

[New ]

§ 2. [Ss 2472, ] Surrogate and acting surrogate ; their official
designations. Where the county judge i is also surrogate, he may
be designated, in any paper or proceeding relating to, the office of
surrogate, as the surrogate of the county, without any addition
referring to his office as county judge. A local officer elected, as
prescribed in the constitution, to discharge the duties of surrogate,
or of county:judge and surrogate, is. designated in this‘act, and,
when acting'as surrogate, may be designated as the “ special surro-
gate” of his county. Where an officer, other than the surrogate,
or- special surrogate, acts as surrogate in a case prescribed by law,
he must be designated by his: aficlal, title with the. addition of ‘the
words “ and acting surrogate.” :

[Code, § 2472, without change. ]

§ 3. [§ 2473.] Seal of the surrogate and surrogate’s court. The
seal of the surrogate of each county shall continue to be the seal
of the surrogate’s court of that county, and. must be useéd.as such
‘by an officer who discharges the duties of the surrogate. A
description of each of such seals must be deposited and recorded
in the office of the secretary of state, unless it has already been
done; and. must remain of record. ae Soh

[Code, § 2478, without change. ]
§ 4. [§ 2474.] Surrogate, when not to be counsel. A surrogate

shall not be counsel, solicitor or attorney in a civil action or special
proceeding for or against any executor, administrator, temporary
administrator, testamentary trustee, . eiterdian or infant, over
whom, or whose estate or accounts, he could have any jurisdiction
by he

“ FCode, § 2474, without change. ]

. § 5. [§ 2475.] Surrogate. liable for clerk’s acts. .A surrogate
‘hereafter elected or appointed, and the sureties on his official bond,
are liable for any act of the clerk or deputy clerk of the. surro-
-gate’s court in the discharge of his official duties, during the
surrogate’s term of office, as if the act were performed by the
surrogate. The surrogate may take security from the clerk or
deputy clerk, or either of them, to indemnify him against the
liability created by this section.

[Code, § 2475, without change. |
746 Report or Jom Lrats.ative ComMItTee

~ § 6. [§ 2476.] Surrogate, when disqualified. In addition to his
general disqualifications as a judicial officer, a surrogate is dis-
qualified from acting upon an application for probate of a will,
where he jis a subscribing , witness, or is necessarily examined or
to be eximined asa witness.

"A Surrogate is also disqualified in any matter in his court where
he files a certificate that his relations to the parties or the subject
“matter are such that it is ‘improper for him to act.

[Code, ‘8 2476, without, change. ]

- .§ 7. [S$ 2477.] Disqualification; when objection must be taken.
An objection to the ‘power ofa surrogate to act, based upon a
disqualification, is waived by an.adult party to a special proceed-
ing unless it is.taken at or. before the joinder of issue by that
“party, or, where an issue is not framed, at or before the sub-
mission of the matter or question to the surrogate.

[Code, § 2477, without change. ]

§ 8. {[§ 2478. Vacancy or disability; who to act as surrogate.
-Where in any county, except New York, the office of surrogate
iis: vacant; or’ the. stirrogate is disabled by reason of sickness,
‘absence or lunacy, ‘or is disqualified in a particular matter, and
“special provision: is not’ made by law for the discharge of the
‘duties of his office in that: contingency ; the duties of his office
must be discharged, until the eek: is filled or the disability
ceases, as follows:

1. By the special surrogate.

2. If there is no special surrogate, or he is in like manner
disabled, or is precluded or disqualified, by the special county
judge.

3, 1 there i is no special county judge, or he is in like manner
disabled, or is precluded or disqualified, by the county judge.

4. If thera i is no county judge, or he is in like manner disabled,
or is precluded or disqualified, by the district attorney.

But before an officer is entitled to act.as prescribed in this sec-
‘tion, proof.of his authority to act as prescribed in section [2481]
eleven of this. [chapter] act must be made. In any proceeding in
the surrogate’s.court. of the county of Kings, before either of the
Officers authorized in this section to discharge the duties of the
office of surrogate of such county for the time being, if an issue
is joined or a contest arises cither on the facts or the law, such
officer, in his diseretion, may, by order, transfer such cases to the
supreme court to be heard and decided at a special term thereof,
Scrroeate Court Mot 47

held in such county, which order shall be recorded in the surro-
gate’s office. A certified copy of such order, together with the
appropriate certificate or certificates of the authority of the officer
to act as surrogate, shall be sufficient and conclusive evidence of
the jurisdiction and authority of the supreme court in such
matter or cause, After a final order or decree is made in the matter
or cause so transferred to the supreme court, the court shall direct
the papers to be returned and filed, and transcripts of all orders
and decrees made therein to be recorded in the surrogate’s office
of such county; and when so filed and recorded, they shall have
the same effect as if they were filed and recorded in a case pending
in the surrogate’s court of such county.

[Code, § 2478, without change. ]

§ 9. [§ 2479.] If surrogate disqualified who to act. Where
the surrogate of any county, except New York, is precluded or
disqualified from acting with respect to any particular matter,
his powers with respect to that matter, or if he be temporarily
absent, his powers with respect to all matters, shall be discharged
by the several officers designated in the last section, in the order
therein provided. If there is no such officer qualified to act
therein, the surrogate may file in his office a certificate, stating
that fact; specifying the reason why he is disqualified or pre-
cluded; and designating the surrogate of any county, other than
New York, to act in his place in the particular matter or during
his absence. The surrogate so designated has, with respect to that
matter, or generally when the designation is made on account of
absence of the surrogate, all the powers of the surrogate making
the designation, and may exercise the same in either county.

[Code, § 2479, without change. ]

§ 10. [§ 2480.] In New York county. In the county of New
York the supreme court, at a special term thereof, on the presenta-
tion of proof of its authority, as prescribed in the next section,
must exercise all the powers and jurisdiction of the surrogate’s
court, as follows:

1. Where the surrogate is precluded or disqualified from acting
with respect to a particular matter, it must exercise all the powers
and jurisdiction of that court with respect to that matter.

2. Where the office of surrogate of the county is vacant, or the
surrogate is disabled by reason of sickness, absence or lunacy,
it must exercise all the powers and jurisdiction of that court,
748 Report or Jorn Leaisnative ComMirrEer

until the vacancy is filled: or the disability ceases, as the case
may be.

[Code, § 2480, without: change.

§ ii, [§ 2481.] Proof of authority, The. authority of another
officer, or, in. the county of New York, of the supreme court, to
act as pr eseribed) 3 in the last three sections, must be proved in one
of the following modes:

1. Where the surrogate is disqualified or precluded from acting
in a particular matter, that fact, may be proved by the surrogate’s
certificate thereof. Where the surrogate is temporarily absent,
that fact may be proved by. the certificate of the surrogate, or of
the clerk of the surrogate’s court, or of the county clerk.

2. The fact that the surrogate is disabled by reason of sickness,
or lunacy, or that the office is vacant, and also the authority of the
officer, or of the court, .as the case may be, to act in his place, may
be proved and. are deemed. conclusively established by an order
of a justice of the supreme court of the judicial district embrac-
ing the county.

[Code, § 2481, without change. |

§ 12. [§ 2482. When and how made. An order may be made
as prescribed in subdivision two of the last section upon or
without notice, as a justice of the supreme court of the judicial
district embracing the county thinks proper. It must recite the
cause of the making thereof, and must designate the officer or
court empowered to ‘dueling the duties of the office of surrogate.
It may, in the discretion oF the justice, require an officer to give
security for the due discharge of the duties. therein. Where - the
office of surrogate is vacant, or the surrogate is disabled by reason
of lunacy, the attorney-general, if ‘directed by the governor must,
cor the district attorney upon: his own motion may, apply for the
order, and a justice of the supreme court of the judicial district
embracing the county must, grant it upon his application. A jus-
tice of the supreme court of the judicial district embracing the
county may also grant the order upon the application of a party
or a person about to become a party to any special proceeding in
the surrogate’s court. Where the surrogate is sick, the granting
of an order rests in the discretion of the justice, and its effect
may be qualified as the justice thinks proper.

[Code, § 2482, without change. ]

§ 13. [§ 2483.] How authority superseded. Where an ee
is made by a justice of the supreme court of the judicial district
Surkoeate Cournr Act 749

embracing the county, as prescribed in the last two sections, or
an appointment is made as prescribed in section [2454] fourteen
of this [chapter] «ct for any. cause except a vacancy in the office of
surrogate, it may be revoked, without prejudice to any proceed-
ing theretofote taken by eecae thereof, by a justice of the supreme
court of the judicial district embracing the surrogate’s county,
upon proof that it was improvidently made, or that the cause
of making it has become inoperative. Such an order or appoint-
ment, made upon the ground that the surrogate’s office is vacant,
is superseded without any formal revocation , by the filling of the
vacancy.* After the order of appointment is revoked, or the
vacancy is filled, as the case may be, the unfinished business, in
any proceeding falken by virtue of the order ‘or appointment, must
be transferred to, and may be completed by, the surrogate in the
same manner and with like effect as where a new surrogate com-
pletes the unfinished business of his predecessor.

[Code, § 2483, without change. ]

§ 14. [§ 2484.] Temporary surrogate; when board of supervisors
may appoint. In any county, except New York, if the surrogate
is disabled by reason of sickness, and there is no special surro-
gate, or special county judge of the county, the board of super-
visors, or in the counties embraced within the city of New York,
the board of aldermen, may, in its discretion, appoint a suitable
person to act as surrogate until the surrogate’s disability ceases,
or until a special surrogate or a special county judge is elected or
appointed. A person so appointed must, before entering on the
execution of the duties of his office, take and file an oath of office
and give an official bond as prescribed by law with respect to a
person elected to the office of surrogate,

[ Code, § 2484, without change. |

§ 15. cs 2485. J Compensation of [person] acting [as] sur-
rogate [in case of vacancy, disability or disqualification]. An
officer, or a person appointed by the board of supervisors, or
board of aldermen, who acts as surrogate of any county during
a vacancy in the office, or in consequence of disability, as prescribed
in this [title] article must be paid, for the time during which
he so acts, a compensation equal pro rata to the salary of iire surro-
gate; or, in a county where the county judge is also surrogate,
to the salary of the county judge. The amount of his com-
pensation must be audited and paid i in like manner as the salary
of the surrogate, or of the county' judge, as the case may be.
750 Revorr or Joint Legistarive ComMrrree

Where an ofticer of the county performs the duties of the surrogate
with .respect to a particular matter wherein the surrogate is dis-
qualified or precluded from acting, the supervisors of the county,
or board of aldermen, must allow him a compensation equal pro
rata to the salary of the surrogate to be audited and collected in
the same manner.

[Code, § 2485, without change. ]

§ 16. [§ 2486.] Books to be kept by surrogate. Each surrogate
must provide and keep the following books:

1. A record-book of wills, in which must be recorded, at length,
every will required by law to be recorded in his office and the
decree admitting it to probate.

2. A record-book of letters testamentary, letters of administra-
tion and letters of guardianship, in which must be recorded all
such letters issued out of his court.

3. A record-book in which must be recorded every decree
whereby the account of an executor, administrator, testamentary
trustee, or guardian is settled.

4, A book containing a minute of every paper filed, or other
proceeding taken, relating to the disposition of the real property
of a decedent, and a record of every order or decree made there-
upon; with a memorandum of every report made, and other pro-
ceeding taken, founded upon a decree for such a disposition.

5. A book containing a minute or record of every decree or
order, the record of which is not required by this section to be kept
elsewhere; together with a memorandum of each execution issued,
and of the satisfaction of each decree recorded therein.

6. A book in which must be recorded, upon the application of
any person, all instruments acknowledged, or proved, and duly
certified, settling estates or accounts or assigning, mortgaging,
charging or releasing any interest in any estate or fund.

7. A book known as the court and trust fund register.

8. A book in which all bonds and undertakings filed in his
court must be recorded.

The expense of providing the books required by law to be kept
and used by the surrogate is a county charge, and such books must
be open at all reasonable times to the inspection of any person.

[Code, § 2486, without change. ]

§ 17. [§ 2487.]] Books to be indexed; notation on margin as to
certain decrees. To cach of the books kept as prescribed in the
last section must be attached an alphabetical index referring to
Surrogate Court Act: «°° 751

the page of the book where each subject may be found. The sur-
rogate may keep two or more books for a further division of the
subjects specified in’ any subdivision of-the last section; in’
which case he must keep a separate index to each set of books.
Each decree or judgment affecting a will, its probate or construe-
tion, or revoking or otherwise affecting letters testamentary, let-
ters of administration, or letters of guardianship, or suspending
or removing a testamentary trustee or modifying or otherwise »
affecting any other decree, must be plainly noted at the end or in
the margin of the record of the will, letters, or original’ decree,
with a reference to the book and page where the subsequent a
is recorded.

[Code, § 2487, without change. ] By oge-aal

§ 18. [[§ 2488.] Papers and books to be: pueeeyed aad bonds
filed. The surrogate must carefully file and preserve in his office :
every deposition, affidavit, petition, report, account, voucher, or’
other paper relating to any proceeding in his court and deliver to.
his successor all the papers and books kept by: him, except that
vouchers may be returned to'the accounting party after two years,
or destroyed after five years from the date of the decree which
allowed the payments represented by them. '

- [Code, § 2488, without change. ]

8 19. [§ 2489. What papers to be transmitted to secretary of
state or state comptroller[ ; expenses thereof]. A surrogate who
admits to probate the will of a person who was not a resident of
the state at the time of his death or grants original or ancillary
letters testamentary upon such a will, or original or ancillary let-
ters of administration upon the estate of such a person, must,
within ten days thereafter, transmit to the secretary of state, to be
filed in his office, a certified copy of the will or letters.

The surrogate must, within ten days after granting letters of
administration to a county treasurer, transmit to the state comp-
troller a certified copy of such letters.

[Code, § 2489, without change. | :

§ 20. [§ 2490.] Incidental powers of the surrogate. A surro-

ate, in or out of court, as the case requires, has power:

1. To issue citations and other process authorized by. hae to
parties, in any matter within the jurisdiction of his court ; and,
in a case prescribed by law, to compel the attendance of a party.

2. To adjourn, from time to time, a hearing or other procecding
a2 Révporr ov Joruny Lyeaisparive ComMirrer

in his court; and where all persons who are necessary parties have
not: been, cited: ‘or notified, and citation or notice has not been .
waived, by appearance or. stheuswibe it is his duty, before -proceed+
ing further, so to adjourn the same, and.to issue a supplemental).
citation, or. require the petitioner to give an additional notice,
as may: be necessary. :

.8.: To issue, under the seal of ilies sn a sal piana requiring
the attendance of a witness, or of a person, residing or being in.
any part of the state, for examination.as to any matter or subject
about. which it is necessary or proper for the surrogate to inquire
in order that he may properly perform any duty imposed upon
him by law; or a subpoena duces tecum requiring such attendance
and the production of a book or paper material to an inquiry pend-
ing in the court.

°4, To enjoin by order, an executor, administrator, testamentary
trustee or guardian, to whom a citation or other process has been
duly issued from his court; from ‘meting as such until the further
order: of the court. ae

5): To require, by order, an executor, administrator, testamen-
tary trustee, or guardian subjert to the jurisdiction of his court,
to perform any duty imposed upon him by statute, or by ah
surrogate’s court, under authority of a statute.

6. To open, vacate, modify, or set aside, or to enter as a a
former time, a decree or order of his court; or to grant a new trial
or a new hewte for fraud, newly discovered: evidence, clerical

error, or other sufficient cause. The powers conferred by this
subdivision must be exercised only ina like case, and in the same
manner, _as a court of record and of general jurisdiction exercises
tHe same powers. |

7. To punish any person’ for a contempt of his court, civil or
criminal, in any case where it is expressly prescribed by law that
a court of record 1 may punish a person for a similar contempt, and
in like manner. :

8. Subject to the provisions of law relating to the disqualifica-
tion of a judge in certain cases, to complete anv unfinished busi-
ness pending before his predecessor in the sas including ae
accountings | and. examinations. i ; ‘ S

‘9. To complete and certify and sign in his own namé, : adiling
to his signature the date of so ‘ome. all records or papers left
uncompleted or unsigned by any of his predecessors.

“10. To. exemplify and certify transcripts of all records of his
court, or other papers remaining: therein; and to ‘search, or cer
Surrocare Courr Acr 753

tify that a document or paper, of which the custody legally belongs
to him, cannot be found. \

11. With respect to any matter not expressly provided for in
the foregoing subdivisions of this section, to proceed, in all mat-
ters subject: to the cognizance of his court, according to the course
and praetice of a court having by the common law jurisdiction of
such, matters, except as otherwise prescribed by statute; and to
exercise such incidental powers as are necessary to carry into
effect the powers expressly conferred.

_ 12. A surrogate has power to administer oaths, to take affi-
davits and the proof and acknowledgment of deeds and all other
instruments in writing, and certify the same with the same force
and effect as if taken and certified by a county judge; and in any
proceeding of which he has jurisdiction, he may administer oaths,
take affidavits, testimony and depositions, and certify the same at
any place within the state of New York, with the same force and
effect as if taken in his county.

[Code, § 2490, without change. The italicized words in subd.
10 from Code, § 961.]

ARTICLE 2
OFFICERS OF THE SURROGATE’S COURT

Section 21. [2491.] Clerk and deputy clerk of surrogate’s court,
and clerks in surrogate’s office; appoint-
ment; salary.

22, [2492.] Chief clerk of surrogate’s court of Kings
county; compensation of clerks and
officers.

23. [[2493.] Appointment of court officers and attend-
ants.

24. [[2494.] Interpreters in surrogate’s court of Kings
county.

25. [[2495.] Stenographer for surrogates’ courts in New
York, Kings, Erie, Albany, Westchester
and Queens counties.

26. [2496.] Stenographers in other counties.

27. [2497.J Duty of stenographer.

28. [2498.] How minutes of testimony authenticated
and bound.

29. [2499.] Fees for copying or recording papers.

30. [2500.] Fees of stenographer [acting or taking tes-
timony] in surrogate’s court.
754 Rauporr or Joint Lewis uarive Commirren

Section 31. [[2501.] Expenses of surrogate or clerk.

32. [2502.] Clerk and deputy clerk of surrogate’s
court; [deputy clerk of surrogate’s
court ;] their powers.

38. [[2503.] Clerk to keep court and trust fund register.

§ 21. [§ 2491.] Clerk and deputy clerk of surrogate’s court,
and clerks in surrogate’s office; appointment; salary. By a written
order filed and recorded in his office, which he may in like man-
ner revoke at pleasure, a surrogate may appoint a clerk of the
surrogate’s court, and in any county containing a city of the
second class, and in the counties of Monroe and Erie the surro-

gate may also appoint a deputy clerk of said court and in the
counties of Chautauqua and Cattaraugus, the surrogate may
designate one of his clerks to act as deputy clerk of said @ourt.

Each surrogate may appoint, and at pleasure remove, as many
other clerks for his office, to be paid by the county, as the board of
supervisors of his county, or in the city of New York the board of
aldermen, authorize him so to appoint.

The board of supervisors or, in the counties embraced within
the city of New York, the board of aldermen, as the case requires,
must fix the compensation of the clerk or clerks appointed under
this section ; and may authorize them, or either of them, to reéeive,
for their or his own use, any legal foes permitted to be ghauped
by law. A surrogate may appoint, and at pleasure remove, as
many additional clerks to: be paid by him as he thinks proper.

[Code, § 2491, without change. |

' § 29. [[§ 2492. ] Chief clerk of surrogate’s court of Kings county;
compensation of clerks and officers. ‘The surrogate of the county
of Kings may appoint a chief clerk of the court and oflice of such
surrogate, who shall hold office for five years unless sooner removed
by the surrogate for cause, after trial,.upon charges duly served
upon him and an opportunity to be heard and defend. When-
ever a vacancy exists for any cause in such office, the surrogate
shall appoint a person to fill such office for the full term of five
years. Such chief clerk shall, before entering upon the perform-
ance of his duties, take the sonstiiutional oath of office and shall
file the same with the county clerk of Kings county, together
with a bond in the sum of ten thousand dollars, with sureties
approved by the surrogate, conditioned for the faithful perform-
ance of his duties as such chicf clerk. Such chief clerk shall
perform such duties as now pertain to the office of chief clerk
and the clerk of the surrogate’s court in such county, and such
Surrogate Courr Act 755

other duties as the surrogate may from time to time by rule of
the court or otherwise impose upon him. The compensation of
such chief clerk and of the other clerks and officers of the court
and office of such surrogate shall, notwithstanding any other pro-
vision of law, be fixed by the said surrogate, and the same shall
be a county charge. The compensation of the chief clerk shall
not be decreased during his term of office. A surrogate’s clerk
must, upon request, and upon payment of, or offer to pay, the
fees allowed by law, or, if no fees are expressly allowed by law,
fees at the rate allowed to a county clerk for a similar service,
diligently search the files, papers, records and dockets in the
surrogate’s office; and either make one or more transcripts there-
from, and certify to the correctness thereof, and to the search, or
certify that a document or paper cannot be found in such office.

[Code, §§ 2492, 961, without change. ]

§ 23. [§ 2493.] Appointment of court officers and attendants.
The surrogate of Kings county may appoint, and at pleasure
remove, all attendants, messengers and court officers in his court,
who must attend, from day to day, the terms and sittings of the
court to preserve order, and to perform whatever services may
be required of him by the surrogate.

The surrogates of Erie, Bronx, Queens and Richmond counties
may severally appoint, and at pleasure remove, as many attend-
ants, messengers and court officers in their courts, to be paid by
the county, as the board of supervisors of Erie county or the
board of estimate and apportionment of the city of New York,
respectively authorize them so to appoint. The court officer or
officers so appointed shall pussess all the powers of officers desig-
nated by sheriffs to attend upon courts, and shall perform what-
-ever services may be required by the surrogate.

The surrogate of any other county may appoint, and at pleasure
remove, one or more court officers to attend his court and to per-
form such duties in respect thereto as the said surrogate may pre-
scribe, who shall be paid by the county treasurer upon the cer-
tificate of the surrogate, a sum not to exceed three dollars per day
for the days actually spent by him in attendance upon a session of
the surrogate’s court. Such officers shall also have all the powers
of officers designated by sheriffs to attend upon courts of record.

[Code, § 2493, without change. ]

§ 24, [§ 2494. ] Interpreters in surrogate’s court of Kings county.
The surrogate of Kings county must from time to time appoint
756 Revporr or Joiner Lucistative ComMirrer

and may at pleasure remove an interpreter to be attached to the
surrogate’s court of said county. Such interpreter shall receive
a salary of eighteen hundred dollars per annum to be paid by the
comptroller of the city of New York, in monthly instalments, and
shall, before entering upon his duties, file in the office of the clerk
of the county of Kings the constitutional oath of office in which
there shall also be incorporated language to the effect that he will
fully and correctly interpret and translate each question pro-
pounded through him to a witness and each answer thereto in
said courts. The compensation for the above interpreter shall be
taken out of the amount appropriated for the support of the said
surrogate’s court, or from any other contingent city fund.

[Code. § 2494, without change. ]

§ 25. [8 2495.] Stenographer for surrogates’ courts in New York,
Kings, Erie, Albany, Westchester and Queens counties. The sur-
rogate of each of the counties of New York, Kings, Queens, Erie,
Albany and Westchester must appoint, and may, for cause,
remove, a stenographer for his court.

In the counties of New York and Kings such stenographers
shall receive a salary fixed by law, to be paid as the salaries of
clerks in the surrogate’s office are paid.

In the counties of Erie, Albany, Westchester and Queens the
salary of said stenocrapher shall be fixed hv the board of super-
visors, or by the board of estimate and apportionment, as the case
mav be, and the payment of such salary shall be provided for by
such board in the same manner as other county salaries are paid.

[Code, § 2495, without change. ] as

§. 26. [§ 2496.]] Stenographers in other counties. The surro-
gate of each county, except New York, Kings, Bronx, Albany, .
Westchester, Hamilton, Queens, Richmond, and Erie, may in his
discretion, appoint, and at pleasure remove, a stenographer for
his court, who, except in Sullivan county, shall receive a salary
to be fixed by such surrogate, not exceeding, in counties having a
population less than thirty thousand, eight hundred dollars per
annum; in counties having a population of thirty thousand and
not more than fifty thousand, not exceeding one thousand dollars
per annum, and in counties having a population exceeding fifty
thousand, not exceeding twelve hundred dollars per. annum, except
that in counties in which are located cities of the second class, or
in counties in which are located three cities of the third class, such
salary shall not exceed eighteen hundred dollars per annum; and
nT

Surrogatr Court Act 5

in any county wholly containing a city of the first class, such
salaries shall not exceed two thousand dollars per annum. The
population of the several counties shall be determined by: the last
preceding census. If a regular stenographer is appointed in 'Sul-
livan county, his salary shall be five hundred dollars per annum.
The board of supervisors shall provide for the payment of such
salary in the same manner as other county salarieg are paid.
When not actually engaged in the discharge of his duties as stenog-
rapher, he shall perform such clerical duties in connection with
the surrogate’s court as the surrogate directs. In counties wherein
the surrogate is also county judge, the stenographer so appointed
shall be the stenographer of the county court, and shall perform
the duties pertaining to a stenographer of the county court with-
out additional compensation. In counties where, for any cause,
a regular stenographer for his court has not been appointed, as
provided by this section, the surrogate may, in individual pro-
ceedings requiring the services of a stenographer, appoint a ste
nographer who shall be paid a reasonable compensation, certified
by the surrogate in every case in which he takes notes of testi-
mony, from the estate or matter in which such services are ren-
dered.

When the regular stenographer appointed under this or the last
section is sick, absent, or on his vacation, or unable to act for other
good cause, the surrogate may desigmate a stenographer to act
temporarily in his place, who shall be paid by the county a reason-
able compensation certified by the surrogate.

[Code, § 2496, without change. ]

§ 27. [§ 2497.] Duty of stenographer. The stenographer of
a surrogate’s court. must, under the direction of the surrogate,
take full stenographic notes of all proceedings in which oral
proofs are given, except where the surrogate otherwise directs.
The testimony must be legibly written out at length by him from
his notes when required by the surrogate; and the minutes thereof,
as so written out, must, after Bee auihentioated. as prescribed
in the next section, be filed in the surrogate’s office, and in all
cases his stenographic books must be so filed and remain in the
surrogate’s office five years.

'[Code, § 2497, without change. ]

§ 28. [§ 2498.] How minutes of testimony authenticated and
bound. The minutes of testimony written out as prescribed in

the last section, or taken by the surrogate, or under his direction,
while the witness is testifying, must, before being filed, be authen-
758 Report or. Joint LreaisLtative CoMMIrTEr

ticated by the signature of the stenographer, referee, the surrogate
or the clerk of the surrogate’s court, as the case may be, to the
effect that they are correct.

The minutes of testimony written out by the stenographer must
be bound, at the expense of the county, in volumes of convenient
size and shape, indorsed ‘“ Stenographie minutes,” and numbered
consecutively. .

[Code, § 2498, without change. ]

§ 29. [§ 2499.] Fees for copying or recording papers. The
clerk of the surrogate’s court may charge and receive to the use
of the county the following fees, except that where the board of
supervisors or board of aldermen have allowed him to receive
fees for his own use the same may be received and retained by
said clerk:

1. For furnishing a transcript of a decree to be filed in the
county clerk’s office, fifty cents.

2. For making a copy of the proceedings and evidence in any
matter, six cents per folio.

3. For recording agreements settling estates or accounts,
releases, assignments, or mortgages of, or liens upon, any interest
in an estate or fund; wills probated in another county or state,
and the papers required to be recorded therewith, ten cents for
each folio.

4. For a certificate, other than a certificate that a paper, for the
copying of which he is entitled to a fee, is a copy, twenty-five
cents.

5. For making and certifying a copy of a will, or paper on file
or recorded in such office, ten cénts for each folio.

6. For comparing and certifying that a paper is a copy of a
record or paper on file, twenty-five cents and five cents for each
folio; and for comparing and certifying a case on appeal where
printed copies thereof are presented by any party to any proceed-
ing, one cent for each folio.

7. For recording the official bond or undertaking of an execu-
tor, administrator, guardian or trustee, ten cents a folio, except
that where the clerk receives a salary as full compensation for
his services no fee shall be charged for such recording.

The board of supervisors, or board of aldermen, may fix a dif-
ferent rate of compensation, and may require the clerk to keep an
account of all such fees and make report thereof whenever
requested by such board.

On the appointment of a guardian, if it appears that the appli-
Surrocatrr Courr Act TH9

cation is made for the purpose of enabling the minor to receive
‘bounty, arrears of pay or prize money, or pension due, or other
dues or gratuity from the federal or state government, for the
. services of the parents or brother of such minor in the military or
naval service of the United States, no fees shall be charged or
received.

[Code, § 2499, without change. ]

§ 30. [§ 2500.] Fees of stenographer [acting or taking testi-
mony] in surrogate’s court. A stenographer, appointed or acting
pursuant to sections [2496 and 2497] twenty-six and twenty-
seven of this act, may charge and receive a sum not exceeding six
cents per folio for furnishing a copy of the minutes, proceedings
and testimony taken in surrogate’s court to any person who applies
for the same.

[Code, § 2500, without change. ]

§ 31. [§ 2501.] Expenses of surrogate or clerk. Where, upon
the application of any party, the surrogate, or the clerk of the
surrogate’s court, goes to a place other than the surrogate’s office,
or the court room where surrogate’s court is regularly held, in
order to take testimony, he shall be paid by such party his actual
and necessary expenses.

[Code, § 2501, without change. ]

_-§ 82. [§ 2502.] Clerk and deputy clerk of surrogate’s court;
[deputy clerk of surrogate’s court J their powers. The clerk and

deputy clerk of the surrogate’s court may severally exereise, con-
currently with the surrogate, the following powers of the surrogate:

1. He may certify and sign as clerk of the court, or as deputy
elerk of the court, as the case may be, any of the records of the
court, and the records and papers specified in subdivision nine of
section [2490] twenty of this [chapter.] act.

2. He may issue any citation, subpoena or other mandate to
which a party is entitled as of course, either unconditionally or
on the filing of any paper; and may sign, as clerk of the court,
or as deputy clerk of the court, as the case may be, and affix the
seal of the court to any letters or mandate issued from the court.

3. He may certify in the manner prescribed by Jaw [chapter
nine of this act,] a copy of any paper, required or permitted
by law to be filed or recorded in the surrogate’s office.

4, He may adjourn to a definite time, not exceeding thirty
days, any matter, when the surrogate is absent from his office, or
unable, by reason of other engagements, to attend to the same.
760 Report or Jormnt Leaisuarive ComMirrer

5. He may administer oaths, take affidavits and the proof and
acknowledgment of deeds and all other instruments in writing and
certify the same with the same force and effect as if taken and
certified by the county judge; and in any proceeding of which the
court has jurisdiction, he may administer oaths, take affidavits,
testimony and depositions, and certify the same at any place
within the state of New York, with the same foree and effect as
if taken in his county.

6. The clerk of the surrogate’s court of each of the ecunties of
Kings, Bronx, Queens and New York may, with the approval of
the surrogate or surrogates of his county, authorize or deputize
one or more of the other clerks employed in the surrogate’s oftice
of his county, to sign his name, and exercise such of the other
powers conferred upon him by this section, as he shall designate.
The surrogate may prohibit the clerk and deputy clerk, or either
of them, from exercising any powers specified in this subdivision,
but the prohibition does not affect the validity of any act of the
clerk or deputy clerk done in disregard of the prohibition.

7. The clerk or deputy clerk or other person employed in any
capacity in a surrogate’s office, shall not act as appraiser, as attor-
ney or counsel, or as referee, or special guardian, in any matter
before the surrogate.

8. The clerk and deputy clerk of the surrogate’s court, and in
the county of Kings two other clerks and in the counties of Bronx,
Queens and Westchester one other clerk, to be designated by the.
surrogate, in addition to the powers above snutiensted may exer-
cise, cancuarently with the surrogate of the county, the power to
take the proof of a will, unless demand be made for an oral exami-
nation or cross examination of the subscribing witnesses, or objec-
tions to such probate are pending.

[Code, § 2502, without change. |

§ 33. [§$ 2503.] Clerk to keep court and trust fund registei
Whenever there shall be filed in the office of the surrogate. any
decree or order of the surrogate or of the surrogate’s court. directing
the deposit of money, either actually in the hands of some person
or persons or thereafter arising from the sale of real estate
described in any such decree or order, with the county treasurer
of his county, or with the chamberlain of the city of New York,
or upon the filing in the said surrogate’s oftice of any treasurer’s
or chamberlain’s reccipt stating that a sum of money has been
deposited with such treasurer or chamberlain, in accordance with a
decree or order of any such surrogate’s court, the clerk of the sur-
Surrogate Courr Act 761

rogate’s court shall enter in the court and trust fund register, the
title of the’ proceeding, or the name of the estate in which’ such
decree or order was made, together with a statement of the amount
so deposited, or ordered to be deposited, if said decree or ordér
contains the amount of same, and the name of the person or per-
sons, if any, to whom said money is ordered to be paid, and the
date of the filing of the same or of such receipt as herein
mentioned.

[Code, § 2508, without change. ]

ARTICLE 3

THE SURROGATE’S COURT AND ITS GENERAL
JURISDICTION

Section 34. [§ 2504.]) Surrogate’s court; when to be open;
” times and places of holding court.

35. [§ 2505. When and where court held by county
judge who [[; proceedings where county
judge] is also surrogate.

36. [S$ 2506.}) Terms of surrogates’ courts in New
York county and powers of surrogates.

37. [S$ 2507.] Proceedings in supreme court regulated.

38. [§ 2508.] Transfer of proceedings to surrogate’s
court.

39. [S$ 2509.] Proceedings of acting surrogates, where
and how recorded.

40. [§ 2510.} General jurisdiction of surrogate’s court.

41. [§ 2511.] Jurisdiction of persons; when and how

: obtained.

42. [§ 2512.] Jurisdiction of subject matter; objection
to defect in record.

43, [[§ 2513.] Presumption of jurisdiction.

44, [§ 2514.] Effect of exercise of jurisdiction.

45, [§ 2515.] Exclusive jurisdiction.

46, [§ 2516.] Concurrent jurisdiction of two or more
surrogates.

47 [§ 2517.] Jurisdiction, how affected by locality of
debts.

§ 34, [S$ 2504.] Surrogate’s court; when to be opened; times
and places of holding court. The surrogate’s court is always open
for the transaction of any business within its powers and juris-
diction.
762 Rerorr or Jouve Leaistative ComMirtrer

The surrogate may, from time to time, appoint, and may alter,
the times and places of holding said court for the transaction of
any business which may come before it. The surrogate may sign
orders, decrees, letters testamentary, of administration and of
guardianship, and approve bonds wherever he may be at any time.

[Code, § 2504, without change. ]

§ 35. [§ 2505. When and where court held by county judge,
who [proceedings where county judge] is also surrogate. The
surrogate’s court, in a county where the county judge is also surro-
gate, may be held at the time and place at which the county court
is held; and the jury in attendance may constitute the jury, for the
trial of any issue arising in the surrogate’s court. =

[Code, § 2505, without change. ]

§ 386. [§ 2506.] Terms of surrogates’ courts in New York county
and powers of surrogates. The surrogates of the county of
New York, from time to time must appoint and may alter the
times of holding terms of that court for the trial of probate pro-
ceedings and for the hearing of motions and other chamber busi-
ness. They must prescribe the duration of such terms, and assign
the surrogate to preside and attend at the terms so appointed. In
case of the inability of a surrogate of that county to preside or
attend, the other surrogate may preside or attend in his place.
Two or more terms of the surrogate’s court may be appointed to
be held at the same time. The term of that court held at the
chambers shall dispose of all. business except contested probate
proceedings; all contested probate proceedings shall. be disposed
of at the trial term. An appointment must ‘be published in two
newspapers published in the city of New York during or before
the first week in January in each year. All the powers conferred
by law upon the surrogate of the county of New York may be exer-
cised by either of the surrogates of the said county. There shall
be published in the official law paper published in said county,
upon Monday of every week, under the name of. the surrogate mak-
ing the several appointments, a full and true list of the names of
all appraisers, transfer tax appraisers, special guardians, referees
and temporary administrators, whom either surrogate shall have
designated or appointed during the preceding week together with
the names of the proceedings in which they were appointed and
the dates of said appointments.

[Code, § 2506, without change. ]
Surrocare Court Act 763

§ 37. [§ 2507.] Proceedings in supreme court regulated. In
a special proceeding cognizable before a surrogate, taken in the
supreme court, as prescribed in section [2480] ten of this [chap-
ter,] act, the seal of the court in which it is taken must be used
where a seal is necessary. The special proceeding must be entitled
in that court; and the papers therein must be filed or recorded,
as the case may be, and issues therein must be tried, as in an
action brought in that court. The clerk of that court must sign
each record, which is required to be signed by the surrogate or
the clerk of the surrogate’s court. The issuing of a citation may
be directed, and any order intermediate the citation and the
decree may be made hy a judge of the court.

[Code, § 2507, without change. }

§ 38. [§ 2508.] Transfer of proceedings to surrogate’s court.
The court may, at any time, in its discretion, upon being satis-
fied that the reason for the exercise of its powers and jurisdiction
has ceased to operate, make an order to transfer to the surrogate’s
court any matter then pending before’ it. Such an order operates
to transfer the same accordingly. Immediately after such a
transfer, or after the revocation of the order of the justice of the
supreme court as prescribed in section [2483] thirteen, the sur-
rogate must cause entries to be made in the proper book in his
office referring to all the papers filed, and orders entered, or other
proceedings taken in the supreme court; and he may cause copies
of any of the orders or papers to be made, and recorded or filed in
his office, at the expense of the county.

[Code, § 2508, without change. ]

§ 39. [§ 2509.] Proceedings of acting surrogates, where and
how recorded. Where an act is done, or a proceeding is taken
by, before, or by authority of, an officer, or a person appointed by
the board of supervisors, or by the board of aldermen, temporarily
acting as surrogate of any county as prescribed in this [chapter]
act, the same must be recorded, or the proper minutes thereof must
be entered, in the books of the surrogate’s court, in like manner
as if the same were done or taken by, before, or by authority of
the surrogate of the county; and the officer or person so acting,
or the clerk of the surrogate’s court, must sign the certificate of
probate and any letters so issued, and must certify the record
thereof in the book.

[Code, § 2509, without change. ]
764 Revorr or Jour Lucistative ComMiIrrer

§ 40. [§ 2510.] General jurisdiction of surrogate’s court. Each
surrogate must hold, within his county, a court, which has, in
addition to the powers conferred upon it, or upon the surrogate,
by special provision of law, jurisdiction, as follows:

To administer justice in all matters relating to the affairs of
decedents, and upon the return of any process 'to try and determine
all questions, legal or equitable, arising between any or all of the
parties to any proceeding, or between any party and any other
person having any claim or interest therein who voluntarily
appears in such proceeding, or is brought in by supplemental
citation as to any and all matters necessary to be determined in
order to make a full, equitable and complete disposition of the
matter by such order or decree as justice requires.

And in the cases and in the manner prescribed by statute:

1. To take the proof of wills; to admit wills to probate; and
to take and revoke probate of heirship.

2. To grant’ and revoke letters testamentary and letters of
administration, and to appoint a successor in place of a person
whose letters have been revoked.

3. To direct and control the conduct, and settle the accounts, of
executors, administrators, and testamentary trustees; to remove
testamentary trustees, and to appoint a successor in place of a
testamentary trustee.

4. To enforce the payment of debts and legacies; the distribu-
tion of the estates of decedents; and the payment or delivery, by
executors, administrators, and testamentary trustees, of money or
other property in their possession, belonging to the estate or fund.

5. To direct the disposition of real property, and interests in
real property of decedents, and the disposition of the proceeds
thereof. ;

6. To appoint and remove guardians for infants; to compel the '
payment and delivery by them of money or other property belong-
ing to their wards; to direct and control their conduct, and settle
their accounts.

7. To settle the accounts of a father, mother or other relative
having the rights, powers and duties of a guardian in socage, and
to compel the payment and delivery of money or other property
belonging to the ward.

8. To determine the validity, construction or effect of any dis-
position of property contained in any will proved in his court,
whenever a special proceeding is brought for that purpose, or
whenever it is necessary to make such determination as to any
Surrogate Court Act 765

will in a proceeding pending before him, or whenever any party
to a proceeding for the probate of any will, who is interested
thereunder, demands such determination in such proceeding.

[Code, § 2510, without change. ]

“§ 41. [§ 2511.] Jurisdiction of persons; when and how obtained.
The surrogate’s court, in any proceeding before it, shall have
jurisdiction of the following described persons: .

1. The petitioner.

2. Parties who have been duly cited, including all those
described as being persons belonging to a class, or connected with
the decedent, or as interested in the property or matter in ques-
tion, whether designated by their full and correct names or not.

3. Persons of full age who have not been judicially declared to
be incompetent to manage their affairs,

a. Who shall, either before or after the filing of the petition,
waive the issue or service, or both, of the citation by an instru-
ment in writing signed, acknowledged, or proved and duly cer-
tified.

b. Who, whether named in the petition or citation or not, shall
appear personally in court and file written signed notice of appear-
ance acknowledged, or proved, and duly certified.

c. Who, whether named in the petition or citation or not, shall
appear by attorney whose authority in writing to appear, so
signed, acknowledged, or proved, and duly certified, shall he filed.

[Code, § 2512, without change. ]

§ 42. Ls 2512.) Jurisdiction of subject matter; objection to
defect in record. The surrogate’s court obtains jurisdiction in
every case to make a decree or other determination by the exist-
ence of the jurisdictional facts prescribed by statute. When the
decree or other determination fails to recite the existence or proof
of a jurisdictional fact, and such fact actually existed; or when
any party has failed to take any intermediate proceeding required
by law to be taken, an objection to such decree or determination
based thereon is available only upon appeal, and the surrogate’s
court may, in its discretion, allow such a defect to be supplied by
‘amendment.

[Code, § 2512, without change. |
766 Report or Jownr Lratsnattve Commirrer

§ 43. [§ 2513.] Presumption of jurisdiction. Where the juris-
diction of a surrogate’s court to make a decree or other determina-
tion is drawn in question collaterally, the jurisdiction is pre
sumptively, and, in the absence of fraud or collusion, conclusively,
established, by an allegation of the jurisdictional facts, contained
in a written petition or answer, duly verified, used in the surro-
gate’s court. The fact that jurisdiction of the parties was

obtained is presumptively proved, by a recital to that effect in
the decree,

[Code, § 2518, without change. |

§ 44. [§ 2514.] Effect of exercise of jurisdiction. Jurisdiction,
once duly exercised over any matter by a surrogate’s court,
excludes the subsequent exercise of jurisdiction by another surro-
gate’s court over the same matter, and all its incidents, except
as otherwise specially prescribed by law. Where a guardian has
been duly appointed by, or letters testamentary or of administra-
tion have been duly issued from, or any other special proceeding
has been duly commenced in, a surrogate’s court having juris-
diction, all further proceedings to be taken in a surrogate’s court,
with respect to the same estate or matter must be taken in the
same court.

[Code, § 2514, without change. ]

§ 45. [[§ 2515.] Exclusive jurisdiction. The surrogate’s court
of each county has jurisdiction, exclusive of every other surro-
gate’s court, to take the proof of a will, and to grant letters testa-
‘mentary thereupon, or to grant letters of administration, as the
case requires, in either of the following cases:

1. Where the decedent was, at the time of his death, a resident
of that county, whether his death happened there or elsewhere.

2. Where the decedent, not being a resident of the state, died
within that county, leaving personal property within the state, or
leaving personal property which has, since his death, come into the
state, and remains unadministered.

3. Where the decedent, not being a resident of the state, died
without the state, leaving personal property within that county,
and no other; or leaving personal property which has since his
death, come into that county, and no other, and remains unad-
ministered.
Surrogates Courr Act 167

4, Where the decedent was not, at the time of his death, a resi-
dent of the state, and a petition for probate of his will, or for a
grant of letters of administration, under subdivision two or three

of this section, has not been filed in any surrogate’s court;
but real property of the decedent, to which the will relates, or
which is subject to disposition under article thirteen [title fourth]
of this [chapter,] act, is situated within that county, and no other.

[Code, § 2515, without change. ]_

§ 46. [$ 2516.] Concurrent jurisdiction of two or more surro-
gates. Where personal property of the decedent is within, or
comes into, two or more counties, under the circumstances speci-
fied in subdivision three of the last section; or real property of
the decedent is situated in two or more counties, under the cir-
cumstances specified in subdivision four of the last section; the
surrogates’ courts of those counties have concurrent, jurisdiction,
exclusive of every other surrogate’s court, to take the proof of the
will and grant letters testamentary thereupon, or to grant letters
of administration, as the case requires. But where a petition for
probate of a will, or for letters of administration, has been duly
filed in either of the courts so possessing concurrent jurisdiction,
the jurisdiction of that court excludes that of the other.

[Code, § 2616, without change. ] |

§ 47. [§ 2517] Jurisdiction, how affected by locality of debts.
For the purpose of conferring jurisdiction upon a surrogate’s
court, a debt owing to a decedent by a resident of the state is
regarded as personal property situated within the county where
‘the debtor, or either of two or more joint debtors, resides; and
a debt owing to him by a domestic corporation is regarded as
personal property situated within the county where the principal
office of the corporation is situated. But the foregoing provision
does not apply to a debt evidenced by a bond, promissory note, or
_ other instrument for the payment of money only, in terms nego-
* tiable or payable to the bearer or holder. Such a debt, whether the
debtor is a resident or a non-resident of the state, or a foreign or
a domestic government, state, county, public officer, association, or
corporation, is, for the purpose of so conferring jurisdiction,
regarded as personal property at the place where the bond, note or
other instrument is, either within or without the state.

[Code, § 2517, without change. ]
768 Report or Jornr Learsnative Commirrer

ARTICLE 4

PROCEEDINGS, HOW BEGUN; PLEADINGS AND PRO-
CESS; SERVICE OF CITATION AND OTHER PROCESS,
AND PROOF THEREOF

Section 48

49,
50.
51.
52.
58.
54.

59.

60.

G1.

_ [2518]

[2519.]
[2520.]
[2521.]
[2522.]
[2523.]
[2524]

55. [2525]
56, [2526.]

. (2527.

58. [2528.]

[2529.]

[2530.]

[2531]

Proceeding commenced by petition; sta tute
of limitations.

Written pleadings required.

Verification thereof.

General contents of petition.

Process; how executed and returnable.

General contents of citation.

Additional, requirements; [General con-
tents of citation ;] persons constituting a
class; persons unknown or whose names
or parts of names are unknown.

Citation; how served within state.

Service personally without the state, or by
publication[ ; when ordered].

Application for order [permitting service
by publication; or personally without the
state].

Order, when and how made; contents
thereof.

[When] Time and manner of service of
citation [shall be made; manner of serv-
ice without the state or by publication].

[1d.; upon infant, et cetera; a]-tdditional
requirement in case of infants and
others [certain cases].

Proof of service of a subpoena, citation or
other process. .

62. [[2532.] Newspapers in which publications must be

made [Publication of citation, et cetera].

§ 48. [§ 2518.] Proceeding commenced by petition; statute of
Every proceeding in surrogate’s court shall be com-
menced by the filing of a petition. In any ease where the time
in which to begin such procceding is limited, a citation, or an
order to show cause, on such petition must, within sixty days

limitations.
Surrogate Court Act 769

thereafter, be issued and be served, as prescribed in this [chap-
ter,] act, upon the adverse party, or upon one of two or more
adverse parties, who are jointly liable, or otherwise united in
interest; or, within the same time, the first publication thereof
must be made pursuant to an order made as prescribed in this
[chapter.] act.

[Code, § 2518, without change. ]

§ 49. [§ 2519.] Written pleadings required. All petitions,
answers, and objections shall contain a plain and concise state-
ment of the facts constituting the claim, objection or defense,
and a demand for the decree, order, or other relief, to which the
party supposes himself to be entitled, and shall be duly verified.
The surrogate may require that a copy thereof be served upon
any person interested in such manner as he may direct. A party
who fails to comply with such requirement may be treated as a
party in default.

[Code, § 2519, without change. ]

§ 50. [§ 2520.] Verification thereof. The provisions of law
[sections 523, 524, 525 and 526 of this act] relating to the verr-
fication of a pleading in a civil action in the supreme court apply
to a verification made pursuant to this [chapter] act, and to the
petition or other paper so verified, where they can be so applied
in substance, without regard to the form of the proceeding,

[Code, § 2520, without change in substance. |

§ 51. [S$ 2521.] General contents of petition. A petition must
substantially set forth:

1. The title of the proceeding, the name and residence of the
person to whose estate or fund the proceeding relates, and the
name and residence of the petitioner.

2. The facts upon which the jurisdiction of the court depends
to entertain the application and grant the relief asked for.

3. So far as they can be ascertained with due diligence, the
names and post-office addresses of all the persons interested in
the proceeding who are required to be cited upon the application,
or concerning whom the court is required to have information;
and if the name or post-office address of any of such persons is

25
770 Report or Joint Leqisinative CoMMITTER

unknown, the facts which show what effort has been made to
ascertain the same.

4, That there are no other persons than those mentioned inter-
ested in the application or proceeding.

5. A request for the relief or action of the court to which the
petitioner deems himself entitled.

Before any process shall be issued on a petition the petitioner
may be required to show by his petition or otherwise the following
matters:

If any person named be an infant there shall be set forth:

a. His age, and whether or not he has a general or testamentary
guardian.

b. Whether or not his father, or if he be dead, his mother is
living, giving the name and post-office address of such person.

c. The person with whom such infant resides and his post-
office address.

If any person named be an adjudged, or an alleged, incom-
petent there shall be set forth:

a. The name and post-office address of the committee, if any,
and the name and post-office address of the person or institution
having the care or custody of such incompetent.

b. The facts regarding his incompetency, and the name and
post-office address of a relative or friend having an interest in his
welfare.

If any of such persons be included in a class, and his name be
unknown there shall be set forth:

The names and post-office addresses of those persons of the class
who are known, and a general description of all other persons
belonging to such class, showing their connection with the dece-
dent or fund and their interest in the property or matter in
question.

Tf any of such persons be unknown or his name be unknown
there shall be set forth:

A general description of such person showing his connection
with the decedent or fund, and his interest in the property or
matter in question.

[Code, § 2521, without change. ]

§ 52. [[§ 2522.] Process; how executed and returnable. The

process of the surrogate’s court shall be a citation to show cause,
an order to show cause, and such other process and mandate as
Surrogate Courr Act 171

the surrogate is or shall be authorized by law to issue and employ
in the performance of the duties imposed on him and in the
enforcing of his orders and decrees.

A citation or other mandate of a surrogate’s court must,
except where it is otherwise specially prescribed by law, be made
returnable before the surrogate’s court from which it was issued,
and may be served or executed in any county. A warrant of
attachment must be directed to the sheriff of the surrogate’s
county, who may execute it in any county, and must convey the
person arrested to the place where it is returnable.

[Code, § 2522, without change. ]

§ 53. [§ 2523.] General contents of citation. A citation must
substantially set forth:

1. The name and residence of the petitioner, and of the person
to whose estate or fund the proceeding relates.

2. The names of all the persons to be cited who have not
waived its issue and service, or have not appeared, so far as the
same can be ascertained.

3. The time and place when the citation is returnable, which
time must not be more than four months after the date thereof.

4. The object of the proceeding in regard to which the persons
cited are required to show cause.

5. The date when the citation issues.

6. It must be attested in the name of the surrogate, and by the
seal of his court.

[Code, § 2523, without change. ]

§ 54. [8 2524.] Additional requirements; [general contents
of citation; persons constituting a class; persons unknown or
whose names or parts of names are unknown. In addition to the
requirements of the last section, a citation must substantially set
forth:

1, Where the names of some persons to be cited comprising a
class are unknown, the names of those persons of the class who
are known, and a general description of all other persons belong-
ing to such class, showing their connection with the decedent
and their interest in the property or matter in question.

2. Where the persons to be cited are unknown, a general
description of such persons showing their connection with the
decedent and their interest in the property or matter in question.
772 Reporr or Jornt Leaisuative Commirrer

In either of said cases where the petitioner is ignorant of the
name of a person to be cited, he may designate that person in the
citation by a fictitious name or by so much of his name as is
known, adding a description identifying the person intended.

3. In every case where it appears that there is no heir-at-law or
next of kin, as the case may be; or that it is not known whether or
not there be such; or when all of the parties interested are non-
resident aliens, the citation shall be issued to the attorney-general
of the state.

[Code, § 2524, without change. ]

§ 55. [§ 2525.] Citation; how served within state. Personal
service of a citation within the state shall be made as follows:

Upon an adult person, or upon an infant of the age of fourteen
years or upwards, by delivering a copy thereof to the person to be
served.

Upon an infant under the age of fourteen years, by delivering
a copy thereof to the infant in person, and to his father, mother
or guardian; or if there be none within the state, or if the infant
does not reside with a parent, to the person having the care and
control of him, or with whom he resides, or in whose service he
is employed.

Upon a person judicially declared to be incompetent to manage
his affairs by reason of lunacy, idiocy, or habitual drunkenness, or
upon a corporation by delivering a copy thereof in the manner pre-
scribed for personal service of a summons in an action in the
supreme court upon such a person, or upon a corporation. [in
article first of title first of chapter fifth of this act.J] Upon a
public officer by delivering a copy thereof to such officer, or to
one of his duly constituted deputies.

Where it appears, by affidavit, to the satisfaction of the surro-
gate from whose court a citation is issued, that proper and diligent
effort has been made to serve it as hereinbefore prescribed in this
section upon a resident of the state whose place of residence or
place of business is known, and that the person to be served cannot
be found at his residence or place of business, and cannot be else
where served within the state within a reasonable time, or, if
found, that he evades service, so that it cannot be made; the sur-
rogate may make an order directing that service thereof be made,
[as prescribed in section 436 of this act; and the provisions of
that section and of section 437 of this act, relating to the service
Surrogate Court Act 773

of a summons, apply to the service of a citation, pursuant to an
order made as prescribed in this section. The order must direct
that the service of the summons be made,J by leaving a copy
thereof, and of the order, if the defendant is a domestic corpora-
tion or joint-stock or other unincorporated association at its prin-
cipal office or place of business, or if a natural person at the
residence of the defendant, with a person of proper age, if upon
reasonable application, admittance can be obtained, and such
person found who will receive it; or, if admittance cannot be 80
obtained, nor such a person found, by affixing the same to the
outer or other door of the defendant’s said place of business or
office, or of his residence, and by depositing another copy thereof,
properly enclosed in a postpaid wrapper, addressed to the defend-
aut at its said principal office or place of business, or to him at his
place of residence, in the post-office at the place where he resides,
or where said office, place of business or residence is located, or
upon proof being made by affidavit that no such residence can be
found, service of the summons may be made in such manner as
the court may direct; the order, and the papers upon which it
was granted, must be filed, and the service must be made, within
ten days after the order is granted; otherwise the order becomes
inoperative. On filing an affidavit, showing service according to
the order, the [summons] citation is deemed served, and the same
preceedings may be taken thereupon, as if it had been served by
publication, pursuant to an order for that purpose.f[, made as
prescribed in the next section.]

Where it is necessary in any special proceeding to cite known
creditors, and it appears that the number of creditors or persons
claiming to be creditors, residing within the state of New York,
upon whom citation is required to be served, exceeds fifty, service
thereof may be made upon them by publication thereof in such
newspaper or newspapers and for such a length of time as shall
be fixed by the surrogate, and by the mailing of a copy of such
citation to each of them by deposit of a copy thereof in the post-
office, properly enclosed in a postpaid sealed wrapper addressed
to each of them at his last known post-office address as stated in
the order, at least twenty days prior to the return day thereof.

[Code, § 2525, omitting the reference to §§ 436 and 437 and
inserting the substance of those sections. The insertion begins
with the words “by leaving a copy” and ends with “ for that
purpose.” |
774. Report or Jornt Lecisuative ComMirrEer

§ 56. [§ 2526.] Service personally without the state, or by pub-
licationf; when ordered]. The surrogate from whose court a
citation is issued may make an order directing the service thereof
personally without the state, or by publication, in either of the
following cases: :

1. Where it is to be served upon a foreign corporation, or upon
a person who is not a resident of the state.

2. Where the person to be served is a resident of the state, and
substituted service upon him cannot be authorized as provided in
section [2525] fifty-five of this [chapter.] act.

3. Where it is to be served upon a party, or a person required
to be made a party, whose name, or residence, cannot be ascer-
tained.

4, Where it is to be served upon one or more unknown creditors,
next of kin, heirs, legatees or other persons, either individually or
included in a class, to whom a citation has been directed, desig-
rating them by a general description, as prescribed in this
Echapter.] act.

[Code, § 2526, without change. |]

§ 57. [S$ 2527.] Application for order [permitting service by
publication or personally without the state]. Application for an
order permitting service of a citation by publication or personally
without the state of New York must be made upon the petition,
or upon an affidavit, which must set forth to the satisfaction of
the surrogate the facts which show that the case is one of those
specified in section [2526] fifty-scx of this [chapter] act and
that the petitioner has used due diligence to ascertain the names
and postoffice addresses of the parties whose names or post-office
addresses are unknown.

[Code, § 2527, without change. ]

§ 58. [§ 2528.] Order, when and how made; contents thereof.
When an order, directing the service of a citation personally
without the state, or by publication, is made, if the order author-
izes service by publication, it must direct that the citation be
served upon the persons named or described in the order, by pub-
lication of the citation in two newspapers, therein designated,
unless from the petition or affidavit filed it appears that the estate
or fund amounts to less than five thousand dollars, in which case
only one newspaper shall be designated, for such specified time
Surrogate Court Act "75

as the surrogate deems reasonable, not less than once in each of
four successive weeks, and by mailing a copy of such citation as
provided in section [twenty-five hundred and twenty-nine] fifty-
nine of this [chapter] act; except that the order may dispense
with such mailing to persons whose names or addresses are alleged
in the petition or affidavit to be unknown, or to persons who are al-
leged in the petition or affidavit to be within a country with which
the United States of America is at war, or to be in a place with
which by reason of the existence of a state of war the United States
of America does not maintain postal communication. The court
shall direct that the citation be mailed on behalf of such persons
to such officer as may have been appointed by the president of
the United States of America to take possession of the property
of alien enemies, at Washington, District of Columbia.

If the order authorizes personal service without the state of
New York, it must direct that service be made upon the parties
named therein in the manner prescribed in section [twenty-five
hundred and twenty-nine] fifty-nine of this [chapter] act.

The order may authorize both modes of service at the option
of the petitioner, or may direct that service be made by either
mode without embodying the other. The granting of an order
for service by publication, or personally without the state, shall
not prevent the personal service of such citation within the state.

§ 59. [[§ 2529.] Time and manner of [when] service of
citation [shall be made; manner of service without the state or
by publication]. Any person over eighteen years of age, although
a party to the special proceeding, may serve a citation.

Service of a citation upon a resident of the state, or upon a
nonresident within the state, must be made, if within the county
of the surrogate, or in an adjoining county, at least eight days
before the return day thereof; and if in any other county of the
state, at least ten days before the return day thereof.

Service of a citation personally without the state of New York,
pursuant to an order therefor, must be. made in the same manner
as is required by this [chapter] act, for the personal service of a
citation within the state, by delivering a copy of such citation, if
within the United States at least twenty days, and if without the
United States at least thirty days before the return day thereof.

Service of citation by publication must be made by publication
of the citation as prescribed in such order, and by the deposit, on
776 Rervortr or Joint LucisLativE CoMMITTEER

or before the day of the first publication, in a specified post-office,
of a copy of the citation, contained in a securely closed postpaid
wrapper, directed to the person to be served, at a place specified
in the order; and if the person to be served is an infant under the
age of fourteen years, a further copy, likewise contained in a
securely closed postpaid wrapper directed to the father, or the
mother, or the guardian, and the person with whom such infant
is sojourning; unless by the terms of the order mailing is dis-
pensed with. ,

[Code, § 2529, without change. ]

§ 60 [[§ 2530.] [[1d; upon infant, et cetera; a] Additional
requirement in [certain cases] case of infants and others. Where
a person cited, or to be cited, is an infant, or where the surrogate
has, in his opinion, reasonable grounds to believe, that a person
cited, or to be cited, is an habitual drunkard, or for any cause
mentally incapable adequately to protect his rights, although not
judicially declared to be incompetent to manage his affairs, the
surrogate may, in his discretion, with or without an application
therefos, and in the interest of that person, make an order requir-
ing that a copy of the citation be delivered, in behalf of that person,
to a person designated in the order and that service of the citation
shall not be dean complete until such delivery.

[Code, § 2530 without change. ]

§ 61. Ls 2531.] Proof of service of a subpoena, citation or other
process. Proof of service of a subpoena, citation or other process
issued from a surrogate’s court, must be made by the certificate
of the sheriff, when served by him, and in any other case by the
affidavit of the person so serving it; or, where the person served
is of full age and not incompetent, by a written admission signed
by him, accompanied with proof, by acknowledgment, affidavit
or otherwise, of the genuineness of his signature; provided, how-
ever, that where service of a citation or order to show cause is
made upon a public officer by delivering a copy thereof to one
of his duly constituted deputies, a written admission, signed by
such deputy, accompanied with proof in like manner of the
genuineness of such deputy’s signature shall be sufficient. [Proof
of ‘publication and deposit in a post-office may be made as pre
scribed in section four hundred and forty-four of this act.]
Surrogate Courr Act 717

Proof of the publication of the [summons and notice] citation

and subpoena must be made by the affidavit of the printer or

publisher, or his foreman or principal clerk. Proof of deposit in

the post-office[, or of delivery, of a paper required to be deposited

or delivered by the provisions of this article, ] must be made by the
affidavit of the person who deposited or delivered it.

[Code, § 2531, without change except to omit the reference to
§ 444 and to insert the substance of that section as the last
paragraph. ]

§ 62. [§ 2532.] Newspapers in which publications must be
made [Publication of citation, et cetera]. Where a provision
of this [chapter,] act, or an order made pursuant to such a pro-
vision, directs the publication of a citation, notice, or other paper,
or the service thereof by publication, the publication must be made
in a newspaper published in the county. The surrogate may, also,
in his discretion, direct the publication thereof in any other news-
paper published in the same or another county, as he deems proper,
for the purpose of giving notice to the persons intended to be
served or notified. Jf no newspaper is published in the county,
the citation, notice or other paper, must be published in the news-
paper printed at Albany, in which legal notices are required by
law to be published.

[Code, § 2532, without change. ]

ARTICLE 5

APPEARANCE; PROCEDURE; TRIAL; ORDERS
AND DECREES

Section 63. [2533.] Appearance; how made and effect thereof.

64. [[2534.] Special guardian; when to be appointed.

65. [[2535.] Consolidation of proceedings.

66. [2536.] Surrogate may refer questions of fact.

67. [[2537.] Right to trial by jury preserved, how
waived.

68. [[2538.] Trial by jury.

69. [2539.] Trial by jury; power ot surrogate: motion
to set aside verdict and for new trial.
778 Report or Joint Lecisuative ComMMIrTEr

Section 70. [2540.] Jury [in surrogate’s court] ; how obtaincd ;

fees of jurors and officers.

71. [2541.] Decision by surrogate after trial without
a jury.

72. [2542.] Exceptions upon a trial.

73. [[2543.] Testimony of witness; how taken.

74. [2544.] By the surrogate of another county.

75. [2545.] Bequest does not disqualify witness.

76. [[2546.] Uncontroverted allegations constitute due

proof.

77. [2547.] Filing testimony taken out of court by
commission.

78. [2548.] Definition of decree and order; how order
enforced.

79. [2549.] Decree or order; when evidence of assets.

80. [2550.] Force and effect of a decree of surrogate’s
court.

81. [2551.] Decree for money; how docketed; effect;
assignment and discharge.

§2. [2552.9 Decree; partial satisfaction [of].

83. [2553.] Enforcement of decree by execution.

84. [2554.9 Enforcement of decree [Idem] by punish-
ment for contempt.

85. [2555.] Effect and contents of decree revoking
letters.

86. [2556.] The last section qualified.

87. [[2557.J When execution of decree or order is
stayed by appeal.

§ 63. [§ 2533.] Appearance; how made and effect thereof. In
a surrogate’s court, a party of full age may, unless he has been
judicially declared to be incompetent to manage his affairs, appear
and prosecute or defend a special proceeding in person, or by
attorney regularly admitted to practice in the courts of record,
at his election, except in a proceeding to punish him for con-
tempt, or where he is required to appear in person, by special
provision of law, or by a special order of the surrogate. An
appearance must be evidenced by a notice of appearance signed
by the party or by his attorney, or in the case of a public officer,
by such officer or a duly constituted deputy in the name of such
officer, and filed in the surrogate’s court; and where no citation
Surrogate Court Act 779

has been served on the person appearing, such notice must be
signed by him and be acknowledged or proved, and duly certified.

[Code, § 2533, without change. ]

§ 64. [§ 2534.] Special guardian; when to be appointed. Where
a party, who is an infant, does not appear by his general guardian ;
or where a party, who is a lunatic, idiot, or habitual drunkard
does not appear by his committee; or where any party is an
infant, or an habitual drunkard, or for any cause is mentally
incapable adequately to protect his rights, although not judicially
declared to be incompetent to manage his affairs, the surrogate
must appoint a competent and responsible person, to appear
as special guardian for that party. Where an infant appears by
his general guardian, or where a lunatic, idiot, or habitual
drunkard, appears by his committee, the surrogate must inquire
into the facts, and must, in like manner, appoint a special
guardian, if there is any ground to suppose that the interest of
the general guardian or committee is adverse to that of the infant,
or incompetent person; or that for any other reason, the interests
of the latter require the appointment of a special guardian.
Where there are unknown persons, or persons whose whereabouts
are unknown, the surrogate may, in his discretion, appoint a
special guardian for such persons. A person cannot be appointed
such a special guardian who is nominated by any party; but this
prohibition shall not preclude an infant over fourteen years of age
from nominating his own special guardian.

Before entering upon his duties such special guardian shall file
his consent to so act.

[Code, § 2534, without change. ]

§ 65. [S$ 2535.] Consolidation of proceedings. At any time
when two or more proceedings are pending involving in whole,
or in part, the same matters, the surrogate may, in his discretion,
consolidate such proceedings upon such terms as shall appear to
him to be equitable and just; but without prejudice to the power
of the surrogate to make any subsequent order or decree in either
or any of them.

[Code, § 2535, without change. ]

§ 66. cs 2536.] Surrogate may refer questions of fact. Ip a
special proceeding other than one instituted for probate of a
780 Report or Joint Leeisuative ComMMirrer

will, and subject to the right of trial by jury of any question of
fact, the surrogate may, in his discretion, appoint a referee to
take and report to the surrogate the evidence upon the facts, or
upon a specific question of fact; to examine an account rendered ;
to hear and determine all questions, arising upon the settlement
of such an account, which the surrogate has power to determine;
and to make a report thereon, subject, however, to confirmation
or modification by the surrogate. But no referee to examine an
account rendered, whether intermediate or final, or to hear and
determine all questions arising upon the settlement of such an
account, shall be appointed, where the estate or fund does not
exceed one thousand dollars in value, or in any case where the
item or items in such account to which objections have been made
do not aggregate more than two hundred dollars. Such a referee
has the same power, and is entitled to the same compensation
as a referee appointed by the supreme court for the trial of an
issue of fact in an action; and the provisions of law [this act],
applicable to a reference by the supreme court, apply to a refer-
ence made as preseribed in this section, so far as they can be
applied in substance without regard to the form of proceeding.
The surrogate of the county of New York may, ou the written
consent of all parties appearing in a probate case, appoint a
referee, or may, in his discretion, direct an assistant to take and
report the testimony, but without authority to pass upon the
issues involved therein. Unless a referee’s report is passed upon
and confirmed, approved, modified or rejected by a surrogate
within ninety days after it has been submitted to him, it shall
be deemed to have been confirmed as of course and a decree to
that effect may be entered by any party interested in the pro-
ceeding upon two days’ notice.

[Code, § 2536, without change. ]

§ 67. [S$ 2537.] Right to trial by jury preserved, how waived.
Whenever in any proceeding in the surrogate’s court, the order or
decree of the court will determine any issue of fact as to which
any party has a right of trial by jury in any court, such trial shall
be deemed to be waived, unless such party, personally, or through
his attorney, guardian, committee, or special guardian appears
and seasonably demands the same, in which ease such trial shall
be had according to the practice of such court. And whenever
such trial is demanded, the same may be waived [in any of the
Surrogate Courr Act 181

modes prescribed with respect to the trial of an action in sec-
tion 1009 of this act. by failing to appear at the trial, by filing
with the clerk a written waiver, signed by the attorney for the
party, by an oral consent in open court, entered in the minutes,
or by moving the trial of the action, without a jury, or, if the
adverse party so moves it, by failing to claim a trial by a jury,
before the production of any evidence upon the trial.

[Code, § 2537, without change, except to omit the reference to
§ 1009 and to insert the substance of that section. ]

§ 68. [§ 2538.] Trial by jury. In any proceeding in which
any controverted question of fact arises, of which any party has
constitutional right of trial by jury, and in any proceeding for
the probate of a will in which any controverted question of fact
arises, the surrogate must make an order directing the trial by
jury of such controverted question of fact, if any party appear-
ing in such proceeding seasonably demands the same, and in any
proceeding in which any controverted question of fact arises of
which any party has or has not, constitutional right of trial by
jury, the surrogate may in his discretion make such order with-
out such demand. The surrogate in such order must direct that
such trial be had either before himself and a jury, or at a trial
term of the supreme court to be held within the county, or in
the county court of the county. Either of the surrogates of the
county of New York may, in his diseretion, make an order trans-
ferring to the supreme court any special proceeding for the pro-
bate of a will pending in said county. If the trial shall not take
place in the surrogate’s court the order must state distinctly and
plainly each question of fact to be tried, and shall be the only
authority necessary for the trial of such question. The verdict,
if not set aside by the judge before whom the question is tried,
shall be certified to the surrogate’s court by the clerk of the court
in which the trial took place, and shall be conclusive except upon
appeal.

[Code, § 2538, without change. ]

§ 69. [§ 2539.] Trial by jury; powers of surrogate; motion to
set aside verdict and for new trial. The surrogate has jurisdiction
to conduct a trial by jury in any case in which he is permitted
or required by this act to order such trial, and in any case where
782 Report or Jornr LeaisyativE CoMMITTEE

he shall conduct such trial the same shall be had before the surro-
gate and a jury, and the trial shall proceed in the same manner
as if such trial were had in the supreme court at a trial term
thereof held in and for the county of such surrogate.

The provisions of [this act] law relating to trial of a civil
action by the supreme court and a jury, [or] and to a motion
for new trial, shall apply to surrogates’ courts and to the proceed-
ings therein so far as they can be applied to the substance and
subject-matter of such proceedings without regard to form, but
the surrogate shall have no power to set aside a verdict or to grant
a motion for a new trial in any proceeding in which the trial
took place in a court other than the surrogate’s court.

[ Code, § 2539, without change. |

§ 70. [§ 2540.] Jury [in surrogate’s court]; how obtained; fees
of jurors and officers. The surrogate may at any time order the
drawing of a jury for service in surrogate’s court, upon reasonable
notice to the parties who have appeared, stating the day, hour and
place of such drawing.

For the purpose of procuring the drawing and attendance of a
jury, the surrogate shall have all the powers of a justice of the
supreme court specified in sections five hundred and twenty-seven
and five hundred and twenty-eight of the judiciary law and also
in [sections 1171 and 1172 of the code of civil procedure ;] rela-
tion to requiring the attendance of talesmen, and the clerk of the
county of the surrogate shall, upon receiving the order of the
surrogate, perform such duties in relation thereto as he is required
to perform under a like order of a justice of the supreme court as
specified in such sections.

Such jury shall be drawn in the presence of the surrogate,
either in his office or in the office of the county clerk, and the
minutes thereof shall be made in triplicate, and be signed by the
surrogate and the county clerk, and one copy thereof filed in the
office of the surrogate, one copy filed in the office of the county
clerk, and one copy delivered to the sheriff of the county.

The names of the jurors so drawn shall be returned to the jury
box by the county clerk, but if anv such juror is again drawn for
service in any court, the fact that he served as a juror in surro-
gate’s court shall, upon his request, be,a sufficient excuse for
not being required to again serve.
Surrogate Courr Act 783

In counties where by special act an officer other than the county
clerk is designated to draw juries and perform corresponding acts,
such officer shall cause the necessary jurors to be summoned and
drawn as though a justice of the supreme court had made such
order.

The provisions of law applicable to the summoning of jurors,
the return of the sheriff, the fees of the sheriff and jurors and
their payment, in supreme court, shall apply where jurors are
drawn and summoned for service in surrogate’s court; and where
the county clerk is not a salaried officer, he shall be entitled for
his services to such compensation as shall be audited by the board
or body entitled to fix his compensation.

The number of days’ service of each juror in surrogate’s court
shall be certified to the county clerk by the clerk of the surro-
gate’s court.

[Code, § 2540, without change, except to omit the reference to
§$ 1171 and 1172, and to insert suitable language to cover the
reference. |

§ 71. [S$ 2541.] Decision by surrogate after trial without a jury.
Upon a trial before the surrogate without a jury, the surrogate
must file in his office his decision in writing which shall direct
the decree to be entered, which, except for such direction, need not
contain either the facts found or the conclusions of law. No party
shall have the right, after the close of the trial, to request a find-
ing upon any question of fact or a ruling upon a question of
law. For the purposes of appeal or other form of review, the
decree made by the surrogate upon the trial by him of an issue
of fact shall have the same effect as the general verdict of a jury
would have if the same issues were triable before a court and a
‘jury and were so tried and a general verdict rendered thereon.

[Code, § 2541, without change. ]

§ 72. [§ 2542.] Exceptions upon a trial. An exception may
be taken to a ruling by a surrogate upon the trial by him of an
issue of fact, in a case where such an: exception may be taken to
a ruling of the supreme court upon a trial of a civil action, with-
out a jury, of an issue of fact.[[, as prescribed in article third of
title first of chapter tenth of this act.] The provisions of [that
article, J law relating to the manner and effect of taking such an
exception, and the settlement of a case containing the exceptions,
784 Revort or Jornt Lectstative ComMItTEE

apply to such a trial before a surrogate; for which purpose, the
decree is regarded as a judgment, and notice of an exception may
be filed in the surrogate’s office.

[Code, § 2542, without change of substance. ]

§ 73. [§ 2543.] Testimony of witness; how taken. Where it
appears to the satisfaction of the surrogate, that the testimony
of a witness is material and necessary, the surrogate may, in his
discretion, proceed to the place where the witness is, and there
as in open court, take his examination. Such notice of the time
and place of taking the examination, as the surrogate prescribes,
must be given, by the party applying therefor.

[Code, § 2548, without change. ]

§ 74. [§ 2544.] By the surrogate of another county. Where
the surrogate has: good reason to believe that a subscribing or a
material witness who is in another county of the state cannot con-
veniently attend before him, and no issue is pending therein, he
may make an order, directing that the witness be examined
before the surrogate of the county in which he is; specifying by
an order the nature and manner of the examination. A copy of
the order must be transmitted by him to the surrogate designated
in the order, together with the original will, where the testimony
relates to the execution of a written will. The examination may
be taken by one of the clerks described in section thirty-two
[2502] of this act [chapter]. The examination, after it is
reduced to writing and subscribed by the witness or otherwise duly
authenticated, together with a statement of the proceedings upon
the execution of the order, must be certified by the surrogate or
clerk taking the examination, attested by the seal of his court, and
returned without delay, with the original will, if any, to the
surrogate who directed the examination, who must file the same
in his office. A surrogate may appoint a referee to take the
testimony, who shall report the same to the surrogate who makes
the appointment. An examination so taken has the same effect
as if it was taken by commission.

‘[Code, § 2544, without change. ]

8 75. [§ 2545.] Bequest does not disqualify witness. A person
is not disqualified or excused from testifying respecting the exe
Surrogatr Courr Act 785

cution of a will, by a provision therein, whether it is beneficial to
him or otherwise.

[Code, § 2545, without change. ]

§ 76. [§ 2546.] Uncontroverted allegations constitute due proof.
Except as otherwise provided by law, a petition, affidavit or
account filed in a special proceeding shall be due proof of the
facts therein stated, unless controverted by answer, objection or
other proof.

[Code, § 2546, without change. ]

§ 77. [S$ 2547.] Filing testimony taken out of court by com-
mission. Where in any matter before the surrogate or in a sur-
rogate’s court the testimony of any witness shall be taken by or
on commission, the same, together with the commission on which
it is taken, shall be duly filed in the office of the surrogate but
need not be recorded.

[Code, § 2547, without change. ]

§ 78. [§ 2548.] Definition of decree and order; how order en-
forced. The determination of the rights of the parties to a
special proceeding in a surrogate’s court, is a decree.

A direction of a surrogate’s court, made or entered in writing,
and not included in a decree, is an order. It may be enforced in
like manner as a similar order, made by the supreme court in
an action.

[Code, § 2548, without change. ]

§ 79. [§ 2549.] Decree or order; when evidence of assets. A
decree directing payment by an exccutor, administrator, guardian
or testamentary trustee, to a creditor of, or a person interested in,
the estate or fund, or an order permitting a judgment creditor
to issue an execution against an executor or administrator, is,
except upon an appeal therefrom, conclusive evidence that there
are sufficient assets in his hands to satisfy the sum which the decree
directs him to pay, or for which the order permits the execution
to issue. A decree charging a deceased executor, administrator,
guardian or trustee with assets upon an accounting under section

[2725] two hundred and fifty-five of this [chapter,] act, is not
786 Report or Joint Lucisuative ComMMITTEE

evidence of assets in the hands of such accounting executor, admin-
istrator, guardian or trustee.

[Code, § 2549, without change. ]

§ 80. [§ 2550.] Force and effect of a decree of surrogate’s court.
Every decree of a surrogate’s court is conclusive as to all matters
embraced therein against every person of whom jurisdiction was
obtained.

[Code, § 2550, without change. ]

§ 81. [§ 2551. Decree for money; how docketed; effect; assign-
ment and discharge. Where a decree directs the payment of a
sum of money into court, or to one or more persons therein
designated, the surrogate, or the clerk of the surrogate’s court,
must furnish to any person applying therefor one or more tran-
scripts, duly attested, stating all the particulars with respect to the
decree which are required by law to be entered in the clerk’s
docket book, where a judgment for a sum of money is rendered
in the supreme court, so far as the provisions of law directing
such entries are applicable to such a decree. Each county clerk
to whom such a transcript is presented must, upon payment of
his. fees, immediately file it, and docket the decree in the appro-
priate docket book kept in his office as prescribed by law for
docketing a judgment of the supreme court. The docketing of
such a decree has the same force and effect, the len thereof may
be suspended or discharged, and the decree may be assigned or
satisfied, as if it were such a judgment.

[Code, § 2551, without change. ]

§ 82. [§ 2552. Decree; partial satisfaction [of]. Upon the
application of any person interested, there may be recorded in the
surrogate’s office any instrument acknowledging payment of
moneys pursuant to the provisions cf decrees for the judicial
settlement of accounts of executors, administrators, testamentary
trustees and guardians. Every such instrument to be recorded
shall be acknowledged, or proved and duly certified, and the record
thereof, or a certified copy of such record, shall be presumptive
evidence of the contents of such instrument and its due execution,
and shall be presumptively a satisfaction and discharge of such
Surrogate Courr Act 187

decree as to any payment of money or delivery of property therein
acknowledged.

[Code, § 2552, without change. ]

§ 83. [§ 2553.] Enforcement of decree by execution. A decree
directing the payment of a sum of money into court, or to one
or more parties, may be enforced by an execution against the
property of the party directed to make the payment. The exe
cution must be issued by the surrogate, or the clerk of the surro-
gate’s court, under the seal of the court, and must be made
returnable to the court. In all other respects the provisions of
[this act] Jaw relating to an execution against the property of a
judgment debtor issued upon a judgment of the supreme court,
and the proceedings to collect it, apply to an execution issued from
the surrogate’s court, and the collection thereof, the decree being,
for that purpose, regarded as a judgment; except that [the] pro-
ceedings [prescribed in title twelfth of chapter seventeenth of
this act] in proceedings supplementary to execution if founded
upon such a decree, must be taken as if the decree was a judg-
ment of the county court, or, in the city of New York, of the
supreme court.

[Code, § 2553, without change. ]

§ 84. [§ 2554.] Enforcement of decree by punishment for con-
tempt. In either of the following cases, a decree of a surrogate’s
court directing the payment of money, or requiring the perform-
ance of any other act, may be enforced by serving a certified copy
thereof upon the party against whom it is rendered, or the officer
or person who is required thereby, or by law, to obey it; and if
he refuses or wilfully neglects to obey it, by punishing him for
a contempt of court:

1. Where it cannot be enforced by execution, as prescribed in
the last section.

2. Where part of it cannot be so enforced by execution; in
which case, the part or parts which cannot be so enforced may be
enforced as prescribed in this section.

3. Where an execution issued as prescribed in the last section
to the sheriff of the surrogate’s county has been returned by him
wholly or partly unsatisfied.

4, Where the delinquent is an executor, administrator,
guardian, or testamentary trustee, and the decree relates to the
788 Report or Jomnt Luaistative ComMIrTEer

fund or estate, in which case the surrogate may enforce the decree
as prescribed in this section, either without issuing an execution,
or after the return of an execution, as he thinks proper.

If the delinquent has given an official bond, his imprisonment,
by virtue of proceedings to punish him for a contempt, as pre-
scribed in this section, or a levy upon his property by virtue of
an execution, issued as prescribed in the last section, does not
bar, suspend, or otherwise affect an action against the sureties on
his official bond.

[Code, § 2554, without change. ]

§ 85. [§ 2555.] Effect and contents of decree revoking letters.
Upon the entry of a decree, made as prescribed in this [chapter,]
act, revoking letters issued by a surrogate’s court to an executor,
administrator or guardian, his powers cease. The decree may,
in the discretion of the surrogate, require him to account for all
money and other property received by him; and to pay and deliver
over all money and other property in his hands into the surro-
gate’s court, or to his successor in office, or to such other person
as is authorized by law to receive the same; or it may be made
without prejudice to an action or special proceeding for that
purpose, then pending, or thereafter to be brought. The revoca-
tion does not affect the validity of any act, within the powers
conferred by law wpon the executor, administrator, or guardian,
done by him before the service of the citation, where the other
party acted in good faith; or done after the service of the citation,
and before entry of the decree, where his powers with respect
thereto were not suspended by service of the citation, or where
the surrogate, in a case prescribed by law, permitted him to do
the same, notwithstanding the pendency of the special proceeding
against him; and he is not liable for such an act done by him
in good faith.

[Code, § 2555, without change. ]

§ 86. [§ 2556.] The last section qualified. The last section
does not affect the liability of a person to whom money or other
property has been paid or delivered, as husband, wife, next of
kin, or legatee, to respond to the person lawfully antiled thereto,
whens letters are revoked, because a supposed decedent is living;
or because a will is Aecoversd, after administration has been
Svurrocats Courr Act 789

granted in a case of supposed intestacy, or revoking a prior will
upon which letters were granted.

[Code, § 2556, without change. ]

§ 87. [§ 2557.] When execution of decree or order is stayed
by appeal. An appeal from a decree or an order directing the
commitment of an executor, administrator, testamentary trustee,
guardian, or other person appointed by the surrogate’s court; or
an attorney or counsel employed therein, for disobedience to a
direction of the surrogate’s court, or for neglect of duty; or
directing the commitment of a person refusing to obey a sub-
poena, or to testify when required according to law; does not stay
the execution of the decree or order appealed from unless the
appellant gives the undertaking required by section [2761] two
hundred and ninety-eight of this [chapter] act.

An appeal from a decree of a surrogate admitting a will to
probate, or granting letters testamentary, or letters of adminis-
tration, or from an order or judgment of the appellate division
of the supreme court affirming a decree of the surrogate admit-
ting a will to probate, or granting letters tcstamentary or letters
of administration does not stay the issuing of letters where, in
the opinion of the surrogate manifested by an order, the preserva-
tion of the estate requires that the letters should issue.

An appeal from a decree revoking letters testamentary, letters
of administration, or letters of guardianship; or from a decree
or an order, suspending an executor, administrator, or guardian,
or removing or suspending a testamentary trustee, or appointing
a temporary administrator, or an appraiser of personal property
does not stay the execution of the decree or order appealed from.

Except as otherwise expressly prescribed in this Tchapter} act
a perfected appeal has the same effect, as a stay of the proceed-
ings, to enforce the decree or order appealed from [prescribed in
section 1310 of this act, with respect toJ on a perfected appeal
from a judgment.

[Code, § 2557, without change. |
790 Report or Joint Leaisiative ComMITTEE

ARTICLE 6

GENERAL PROVISIONS RELATING TO LETTERS

Section 88
89

90.
91.
92.
93.
94.
95.
96.
97.
98.
99.

100.
101.

102.

103.
104.

. [2558]
. £2559.J
[2560.]

[2561.]
[2562.]
[2563.]

[2564.]
2565.)

[2566.J
[2567.]

[2568.}
[2569.]

(2570.J
[2571.J

Requisites of letters.

Limited and restrictive letters.

Letters evidence of authority; effect of
appeal,

Priority among different letters.

Time, how reckoned upon successive letters.

When surviving or remaining representa-
tive may act; when successur must be
appointed.

Persons incompetent to receive letters, or
act as testameutary trustee.

Surrogate may refuse letiers under certa
conditivas.

Objections to grant of letters.

Bond; when required.

Official oaths of executors[[, et ceteraj.

Removal, or revocation of letters for dis-
qualiheation or misconduct[, et cetera].

Petition; citation thereupon; suspension.

Hearing; decree; testamentary trusts not
affected.

: feeds 4
[2572.] Application by executor[[, et cetera,] for

[2573.J
fo574.J

permission to resign.

Proceedings thereupon.

In what cases letters may be revoked or
trustee removed without a citation.

§ 88. [§ 2558.] Requisites of letters. Letters testamentary,
letters of administration, and letters of guardianship must be in
the name of the people of the state. Where they are granted by
a surrogate, they must be attested in the name of the officer grant-
ing them, signed by him, or by the clerk of the surrogate’s court,
and sealed with the seal of the surrogate’s court. Where they
are issued out of another court, they must be attested in the name
of the judge holding the court, signed by the clerk thereof, and
sealed with its seal.
Surrogate Courr Act 791

To all letters of guardianship of the property of an infant the
surrogate must cause a copy of sections [2660 and 2661] one
hundred and ninety and one hundred and ninety-one of this
[chapter] act to be annexed or to be printed thereupon.

[Code, § 2558, without change. ]

§ 89. [§ 2559.] Limited and restrictive letters. Letters may
be granted limiting and restricting the powers and rights of the
holders thereof as follows:

To an executor or administrator where a right of action exists.

To a general guardian where his possession and control of cer-
tain property of his ward is limited as provided in section [2650]
one hundred and eighty of this [chapter] act.

[Code, § 2559, without change. ]

§ 90. [S$ 2560.] Letters evidence of authority; effect of appeal.
Subject to the provisions of the next scction, regulating the
priority among different letters, letters testamentary, letters of
administration, and letters of guardianship, granted by a court or
officer having jurisdiction to grant them, are conclusive evidence
of the author ity of the persons to whom they are granted, until the
decree granting them is reversed upon appeal, or the letters are
nepoed,

When letters testamentary or letters of administration have
been issued in accordance with an order of the surrogate as
authorized in section [2557] eighty-seven of this act, such letters
so issued confer upon the person named therein all the powers and
authority, and subject him to all the duties and habilities of an
executor or administrator in an ordinary case, except that they
do not confer power to sell real property by virtue of a provision
in the will, or to pay or to satisfy a legacy, or distribute the
unbequeathed property of the decedent, until after the final
determination of the appeal; and in case letters shall have been
issued before such appeal, the executor or administrator, on a
like order of the surrogate, may exercise the powers and authority,
subject to the duties, liabilities and exceptions above provided.

[Code, § 2560, without change. ]

§ 91. [§ 2561.] Priority among different letters. A person to
whom letters are first issued from a surrogate’s court having
792 Report or Jorwst Luaistative ComMMirren

jurisdiction to issue them, has sole and exclusive authority,
pursuant to the letters, until the letters are revoked; and he is
entitled to demand and recover from any person, to whom letters
are afterwards issued, by any other surrogate’s court, the prop-
erty in his hands belonging to the estate or fund. But the acts
of a person, to whom letters were afterwards issued, done in
good faith, before notice of the letters first issued, are valid; and
an action or special proceeding commenced by him, may be con-
tinued by and in the name of the person or persons to whom the
letters were first issued.

[Code, § 2561, without change. ]

§ 92. [S$ 2562.] Time, how reckoned upon successive letters.
Where it is prescribed by law, that an act must or may be done
within a specified time after letters are issued, and successive
or supplementary letters are issued upon the same estate, the
time so specified must be reckoned from the issuing of the first
letters, except in a case where it is otherwise specially prescribed
by law; or where the first or any subsequent letters are revoked,
as prescribed in section [2624] one hundred and fifty-four of this
[chapter,] act, by reason of the want of power in the surrogate’s
court to issue the same, for any cause.

[Code, § 2562, without change. ]

§ 93. [S 2563.9 When surviving or remaining representative
may act; when successor must be appointed. Where one of two or
more executors or administrators dies, or where letters are
revoked with respect to one of them, a successor to the person
who dies, or whose letters are revoked, shall not be appointed,
except where such an appointment is necessary in order to
comply with the express terms of a will; but the others may
proceed and complete the administration of the estate pursuant
to the letters, and may continue any action or special proceeding
brought by or against all.

Where all the persons to whom letters have been issued die, or
where the letters of all have been revoked by a decree of the sur-
rogate’s court, that court has, except in a case where it is other-
wise specially prescribed by law, the same power to appoint a
successor to the person or persons whose powers have ceased, as
if the letters had not been issued. The successor may complete
the exccution of the trust committed to his predecessor; he may
Surrogate Courr Act 793

continue in his own name, a civil action, or special proceeding,
pending in favor of his predecessor; and he may enforce a judg-
ment, order, or decree, in favor of the latter.

[Code, § 2563, without change. ]

§ 94. [§ 2564.] Persons incompetent to receive letters, or act
as testamentary trustee. No person is competent to serve as an
executor, administrator, testamentary trustee or guardian, who is:

1. Under the age of twenty-one years;

2. An adjudged incompetent;

3. An alien not an inhabitant of this state;

4. A felon;

5. Incompetent to execute the duties of such trust by reason of
drunkenness, dishonesty, improvidence or want of understand-
ing.

Except as prescribed in section [2567] ninety-seven, an execu-
tor, testamentary guardian or testamentary trustee, who is not by
law required to give a bond, shall not qualify or serve as such
where, after objection filed and proof taken, the surrogate finds
that :

1. His circumstances are such that they do not afford adequate
security to the creditors, or persons interested in the estate or
fund for the due administration thereof.

2. He is not a resident of the state of New York.

[Code, § 2564, without change. ]

§ 95. [[§ 2565.] Surrogate may refuse letters under certain con-
ditions. The surrogate may, in his discretion, refuse to grant
letters to any person unable to read and write the English
language; or to any person who does not file in the surrogate’s
office an instrument acknowledged or proved, and duly certified
designating the clerk of the surrogate’s court and his successor
in office, on whom service of any process issuing from the surro-
gate’s court may be made in like manner and with like effect as
if it were served personally upon himself, whenever the person
so receiving letters can not be found and served within the state
of New York, after due diligence used.

[Code, § 2565, without change. ]

§ 96. Cs 2566.9 Objections to grant of letters. Any person
interested in the estate or fund may, before letters testamentary,
794 Report or Joint LeaisLativE CoMMITTEE

of administration or of guardianship are granted, or a testa-
mentary guardian or trustee is allowed to qualify and serve, file
objections showing his interest in the estate or fund, and setting
forth specifically one or more legal objections to granting the
letters to one or more of the persons about to receive the same,
or to allowing a testamentary guardian or trustee to qualify and
serve. Where such objections are filed, the surrogate must stay
the granting of letters or refuse to allow the testamentary guard-
ian or trustee to qualify until the matter is disposed of.

[Code, § 2566, without change. ]

§ 97. [§ 2567.] Bond; when required. In either of the fol-
lowing cases, a person named as executor in a will, or a testa-
mentary guardian or trustee who is not required by the will to
give a bond, may entitle himself to letters or to act thereunder
by giving a bond as prescribed by law, although an objection
against him has been established to the satisfaction of the surro-
gate:

1. That his circumstances are such, that they do not afford
adequate security to the creditors, or persons interested in the
estate or fund, for the due administration of the same.

2. That he is not a resident of the state; and he is a citizen
of the United States.

[ Code, § 2567, without change. ]

§ 98. [§ 2568.] Official oaths of executors[, etc.]. The official
oath or affirmation of an executor, administrator, guardian, or
testamentary trustee, to the effect that be will well, faithfully,
and honestly discharge the duties of his office, describing it,
must be filed in the surrogate’s office, before letters are issued to
him, or he is permitted to act. The oath may be taken before
any officer who is authorized to administer oaths.

[Code, § 2568, without change. ]

§ 99. [S$ 2569. Removal, or revocation of letters for disqualifi-
cation or misconduct. In either of the following cases, a creditor
or person interested in the estate of a decedent, or a ward or
friend of a ward, or a person beneficially interested in the execu-
tion of a trust, or any surety on a bond of a person to whom
letters have been granted or of a trustee may present to the
Surrocats Court Act 795

surrogate’s court having jurisdiction a petition, praying for a
decree revoking those letters, or removing such trustee, and that
the respondent may be cited to show cause why a decree should
not be made accordingly:

1. Where the respondent was, when appointed or when letters
were issued to him, or has since become incompetent, or dis-
qualified by law to act as such, and the grounds of the objection
did not exist, or the objection was not taken by the petitioner, or
a person whom he represents, before the letters were granted or
the appointment made.

2. Where, by reason of his having wasted or improperly applied
the money or other assets in his hands, or invested money in
securities unauthorized by law, or otherwise improvidently man-
aged or injured the property committed to his charge; or by
reason of other misconduct in the execution of his office, or
dishonesty, drunkenness, improvidence, or want of understand-
ing; he is unfit for the due execution of his office.

3. Where he has wilfully refused, ‘or, without good cause
neglected, to obey any lawful direction of the surrogate contained
in a decree or order, or any provision of law relating to the dis
charge of his duty.

4, Where the grant of his letters, or his appointment was
obtained by a false suggestion of a material fact.

5. Where by the terms of a will, deed or order his office was
to cease upon a contingency which has happened.

6. In the case of an executor, who has not been required to
give a bond, where his circumstances are such that they do not
afford adequate security to the creditors or persons interested
for the due administration of the estate; or where he has removed
or is about to remove from the state.

7. In case of a guardian where he has removed or is about to
remove from the state, or where the interest of the infant will be
promoted by the appointment of another person as guardian.

8. In the case of a temporary administrator, appointed upon
the estate of an absentee, where it is shown that the absentee has
returned; or that he is living, and capable of returning and
resuming the management of his affairs; or that an executor, or
administrator-in-chief has been appointed upon his estate; or
that a committee of his property has been appointed by a com-
petent court of the state.

[Code, § 2569, without change. ]
796 Report or Jornt LuaisuativeE ComMIrTEE

§ 100. [S$ 2570.] Petition; citation thereupon; suspension. A
petition presented as prescribed in the last section, must set
forth the facts showing that the case is one of those therein
specified, and unless the surrogate declines to entertain the pro-
ceeding, a citation must be issued according to the prayer thereof.

If such citation be issued the surrogate may, in his discretion,
make an order suspending the respondent wholly or partly from
the exercise of his powers and authority during the pendency of
the special proceeding. A certified copy of an order so made
must accompany the citation, and be served therewith; but, from
the time when it is made, the order is binding upon the respond-
ent and upon all other persons, without service thereof, subject
to the exceptions and limitations prescribed in sections [2555
and 2556] eighty-five and eighty-six of this [chapter,] act, with
respect to a decree revoking letters.

[Code,*§ 2570, without change. ]

§. 101. [§ 2571.] Hearing; decree; testamentary trusts not
affected. Upon the return of a citation, issued as prescribed in
the last section, the surrogate may make a decree revoking the
letters issued to, or. removing, the respondent, or may, in his
discretion, dismiss the proceedings upon such terms as justice
requires.

Where an executor or an administrator is also a testamentary
trustee, a decree revoking his letters does not affect his power
or authority as testamentary trustee, except in the case specially
prescribed for that purpose, in section [2640] one hundred and
seventy of this [chapter.] act.

[Code, § 2571, without change. |

§ 102. [§ 2572.9 Application by executor[, etc.,] for permission
to resign. An executor, administrator, guardian or testamentary
trustee may, at any time, present to the surrogate’s court a peti-
tion, praying that his account may be judicially settled; that a
decree may thereupon be made, revoking his letters or permitting
him to resign, and discharging him accordingly; and that the
game persons may be cited to show eause why such a decree
should not be made who must be cited upon a petition for a
judicial settlement of his account. The petition must set forth
the facts upon which the application is founded; and it must,
Surrogate Courr Act 797

in all other respects, conform to a petition praying for a judicial
settlement of his account. The surrogate may, in his discretion,
entertain or decline to entertain the application.

[Code, § 2572, without change. ]

§ 103. [§ 2573.] Proceedings thereupon. If the surrogate
entertains an application, made as prescribed in the last section,
the proceedings thereupon must be the same as upon a petition
for a judicial settlement of the petitioner’s account; except that
the surrogate must first determine whether sufficient reasons exist
for granting the prayer of the petition. Upon his fully account-
ing, and paying over all money which is found to be due from him,
and delivering over all books, papers, and other property in his
hands, either into the surrogate’s court, or in such a manner as
the surrogate directs, a decree may be made, revoking the
petitioner’s letters, or removing him, and discharging him accord-

ingly.
[Code, § 2573, without change. |

§ 104. [§ 2574.] In what cases letters may be revoked or trustee
removed without a citation. In either of the following cases, the
surrogate may make a decree revoking letters testamentary, of
administration or of guardianship, issued from his court, or
removing a testamentary trustee, without a petition or the issuing
of a citation:

1. Where the executor, administrator, guardian or trustee is
not a resident of the state, or is absent therefrom, and upon
being duly cited to account, neglects to appear upon the return
of the citation, without showing a satisfactory excuse therefor,
and the surrogate has not sufficient reason to believe that such an
excuse can be made.

2. Where a citation or order issued to such a person, in a case
prescribed by law, cannot be personally served upon him, by
reason of his having absconded or concealed himself.

3. Where, by reason of his default in returning an inventory,
or his neglect or refusal to obey an order, such a person has
remained, for thirty days, committed to jail.

4, Where by the judgment of another court of competent juris-
diction the will under which letters have been issued is declared
to be invalid.
798 Report or Joint Leaisuative ComMMIttTEes

5. Where an executor or administrator has failed to give the
bond required to sell real estate, or to give a new bond, or a
new surety when required to do so by an order or decree of the
surrogate’s court.

6. Where such person has been convicted of a felony.

7. Where such executor, administrator, guardian or trustee
mingles the funds of such estate with his own or deposits the
same with any person, association or corporation authorized to do
business under the banking law, in an account other than as
such executor, administrator, guardian or trustee.

[Code, § 2574, without change. ]

ARTICLE 7
BONDS AND UNDERTAKINGS; SURETIES

Section 105. [2575.] Approval and recording of bonds and
undertakings.

106.. [2576.] Deposit of securities to reduce penalty of
bond.

107. [2577.] When new bond or new sureties may be
required.

1u8. [2578.] How principal may be required te give
a new bond[, et cetera].

109. [2579.] Sureties may apply to be released, as to
future breaches.

110. [2580.] Release of old sureties on the giving of
new.

111. [2581.}} Principal may substitute new bond or
surety after judicial settlement.

11, [2582] Sureties liable for money[, et cetera,]
received in another capacity.

113. [[2583.] When bond may be prosecuted.

114. [2584.1 Successor may prosecute official bond.

115. [[2585.] Action on official bond, when no successor

appointed.

116. [2586.] Discharge of bond or undertaking given
on appeal, or for the performance of
an act.

117. [2587.] Application of this article to executors[,
et cetera, ] heretofore appointed.
Surrogate Court Act 799

§ 105. [§ 2575.] Approval and recording of bonds and under-
takings. Hxcept as otherwise provided in this act, the provisions
of law relating to bonds and undertakings in a civil action in
the supreme court shall apply to bonds or undertakings in the
surrogate’s court. All bonds and undertakings to be filed in the
surrogate’s court must be approved [as provided in section 812
of this act,] by the surrogate or acting surrogate, except that in
counties containing a city of the first or second class or a part
of such city, the surrogate or surrogates may, in writing, desig-
nate a clerk in the office to approve all or any class of bonds or
undertakings, and when approved such bonds and undertakings
must be recorded. The approval must be indorsed on the bond
or undertaking.

[Code, § 2575, without change of substance. ]

§ 106. [§ 2576.] Deposit of securities to reduce penalty of bond.
In a case where a bond, or new sureties on a bond, may be required
by a surrogate from an executor, administrator, guardian, or testa-
mentary trustee, if the value of the estate or fund is so great that
the surrogate deems it inexpedient to require security in the full
amount prescribed by law, he may direct that any securities for
the payment of money, belonging to the estate or fund, be de
livered to the county treasurer, or chamberlain, or be deposited
subject to the order of the executor, administrator, guardian or
testamentary trustee, countersigned by the surrogate, with a trust
company, bank or safe deposit company. After such a deposit
has been made, the surrogate may fix the amount of the bond with
respect to the value of the remainder only of the estate or fund.
A security thus deposited shall not be withdrawn from the custody
of the depository, and no person other than the county treasurer,
chamberlain or the proper officer of the depository, shall receive
or collect any of the principal or interest secured thereby, without
the special order of the surrogate. Such an order can be made in
favor of such executor, administrator, guardian or testamentary
trustee, only where an additional bond has been given by him, or
upon proof that the estate or fund has been so reduced, by pay-
ments or otherwise, that the penalty of the bond originally given
will be sufficient in amount to satisfy the provisions of law relating
to the penalty thereof, if the security so withdrawn is: also
reckoned in the estate or fund.

[Code, § 2576, without change. ]
800 Reporr or Joint Leaisuative Commirtrer

§ 107. [§ 2577.) When new bond or new sureties may be
required. Any person interested in an estate or fund, may present
to the suzrogate’s court a petition, setting forth that a surety
on a bond, taken as prescribed in this [chapter,J act, is insuf-
ficient, or hag removed, or is about to remove, from the state, or
is dead, or that the bond is inadequate in amount; and praying
that the principal in the bond may be required to give a new
bond, in a larger penalty, or new or additional sureties, as the
case requires; or in default thereof, that he may be removed from
his office, and that letters issued to him may be revoked. Where
the bond so taken is that of a guardian, the petition may also be
presented by any relative of the infant. When the bond is that
of an executor, or administrator, the petition may also be presented
by any creditor of the decedent. If it appears to the surrogate
that there is reason to believe that the allegations of the petition
are true, a citation shall issue to the principal on the bond to show
cause why the prayer of the petition should not be granted.

[Code, § 2577, without change. ]

§ 108. [§ 2578.]] How principal may be required to give a new
bond[[, et cetera]. Upon the return of a citation, issued as pre
scribed in the last section, the surrogate must hear the allegations
and proofs of the parties; and if the allegations, or any of them,
are found to be valid, he must make an order, requiring the
principal on the bond to give new or additional sureties, or a new
bond in a larger penalty, as the case requires, within such reason-
able time, not exceeding twenty days, as the surrogate fixes; and
directing that, in default thereof, he be removed or his letters be
revoked.

[Code, § 2578, without change. ]

§ 109. [§ 2579.] Sureties may apply to be released as to future
breaches. Any or all of the sureties on a bond taken as pre
scribed in this [chapter,] act, may present a petition to the surro-
gate’s court praying to be released from responsibility on account
of any future breach of the condition of the bond, and that the
principal on the bond be required to give new sureties and to
render and settle his account, and that a citation issue to said
principal to show cause why the application should not be granted.

[Code, § 2579, without change. ]
Surrogate Court Act 801

§ 110. [§ 2580.] Release of old sureties on the giving of new.
Upon the return of the citation issued as prescribed in the last
section, if the principal on the bond does not file a new bond in
the usual form with new sureties to the satisfaction of the surro-
gate, the surrogate must make an order requiring said principal
to file such new bond within such reasonable time, not exceeding
twenty days, as the surrogate fixes. Should the principal file
such new bond upon the return of such citation or within the
time fixed by such order the surrogate must thereupon make a
decree releasing the petitioner from liability upon the bond for
any subsequent act or detault of the principal, and requiring the
principal to render and settle his account to and including the
date of such decree, and to file such account within a time fixed,
not exceeding twenty days from such date; otherwise he must
make a decree removing such principal or revoking his letters.

[Code, § 2580, without change. |

§ 111. [§ 2581.] Principal may substitute new bond or surety
after judicial settlement. Whenever there is pending in surro-
gate’s court a proceeding for the intermediate judicial settlement
of the account of an executor, administrator, guardian or testa-
mentary trustee who has been required to file an official bond, such
principal may ask in such proceeding, upon good cause shown, for
leave to file a new bond or a new surety. If the surrogate grants
such application he shall thereupon fix the penalty of the new
bond, or the amount in which the new surety must justify, and
upon the filing and approval of such new bond, or of the under-
taking of the new surety, the surrogate may provide in the decree
of judicial settlement that the former bond or surety be discharged
from and after the date of such decree from all liability, except
upon appeal therefrom, as to all matters embraced in said account
and decree.

[Code, § 2581, without change. ]

§ 112. [§ 2582.] Sureties liable for money[, et cetera,] received
in another capacity. A person to whom letters are issued is liable
for money or other personal property of the estate which was in
his hands, or under his control, when his letters were issued, in
whatever capacity it was received by him, or came under his
control. Where it was received by him, or came under his

26
802 Report or Joint LecistativE ComMMITrTEeE

control, by virtue of letters previously issued to him in the same
or another capacity, an action to recover the money, or damages
for failure to deliver the property, may be maintained upon both
official bonds; but, as between the sureties upon the official
bond given upon the issue of the prior letters, and those upon
the official bond given upon the issue of the subsequent letters,
the latter are liable over to the former.

[Code, § 2582, without change. ]

§ 113. [§ 2583.]] When bond may be prosecuted. Where an
execution, issued upon a surrogate’s decree, against the property
of an executor, administrator, testamentary trustee, or guardian,
has been returned wholly or partly unsatisfied, an action to
recover the sum remaining uncollected may be maintained upon
his official bond by and in the name of the person in whose favor
the decree was made. If the principal debtor is a resident of the
state, the execution must have been issued to the county where
he resides.

[Code, § 2583, without change. |

§ 114. [§ 2584.] Successor may prosecute official bond. Where
a successor of an executor, administrator, guardian or testa-
mentary trustee has been appointed, he may maintain an action
upon his predecessor’s official bond, in which he may recover any
‘money, or the full value of any other property, received by the
principal in the bond, and not duly administered by him; and
to the full extent of any injury, sustained by the estate of. the
decedent, infant or beneficiary as the case may be, by any act or
omission of the principal.

The money recovered in such an action shall be part of the
’ estate or fund in the hands of the successor and must be distributed
or otherwise disposed of accordingly; except that a recovery for
an act or omission, respecting a right of action, or other property,
appropriated by law for the benefit of the husband, wife, family,
or next of kin of a decedent, or disposed of by a will for the
benefit of any person is for the benefit of the person or persons
so entitled thereto.

A decree against such decedent’s executor, or administrator.
‘rendered upon an accounting under section [2725] two hundred
and fifty-seven of this [chapter,] act, has the same effect as if an
Surrogate Courr Act 803

execution issued upon a surrogate’s decree against the property of
decedent had been returned unsatisfied during decedent’s life time.

[Code, § 2584, without change. ]

§ 115. [§ 2585.) Action on official bond when no successor
appointed. Where an executor, administrator, guardian or testa-
mentary trustee has been removed, or his letters have been revoked,
and no successor is appointed, any person aggrieved may, upon
obtaining an order from the surrogate granting him leave so to do,
maintain an action upon the official bond of the person so removed
or whose letters have been revoked in behalf of himself and all
others interested; in which the plaintiff may recover any money,
or the full value of any other property, received by the principal
on the bond, and not duly administered by him, and to the full
extent of any injury sustained by the estate of the decedent, infant
or beneficiary by any act or omission of the principal. The money
recovered in such an action must be paid, by the sheriff or other
officer who collects it, into the surrogate’s court to be paid to a
successor when appointed and distributed to the persons entitled
thereto.

[Code, § 2585, without change. ]

§ 116. [S$ 2586.] Discharge of bond or undertaking given on
appeal, or for the performance of an act. Any party to a bond or
undertaking given upon appea!, or to insure the performance of
an act by himself or another, as to which no accounting is required
by law for its discharge, may apply to the surrogate’s court, upon
notice to all parties interested in the subject-matter, or in the pro-
ceeding in which the bond or undertaking was given, for the dis-
charge of the obligation or liability, in whole or in part. The
court may thereupon by order certify that the whole obligation or
liability on the bond or undertaking is discharged, or may direct
that such obligation or liability be discharged in such amount as
may be just, and that the bond or undertaking shall thereafter
have the same force and effect as if given in terms for the remain-
ing obligation or liability.

[Code, § 2586, without change. ]

§ 117. [§ 2587.] Application of this article to executors[, et
cetera, J heretofore appointed. The provisions of this article apply
804 Rervorr or Joruny Lecrstative ComMItTEeE

to an executor, administrator, or guardian, to whom letters have
been issued, and to a testamentary trustee whose trust has been
ereated before this [chapter] act takes effect; except that it does
not affect, in any manner, the liability of the sureties on a bond
executed before this [chapter] act takes effect.

[Code, § 2587, without change. ]

ARTICLE 8

GRANT OF ADMINISTRATION; ADMINISTRA-

Section 118.
119.
120.
121.
122.
123.

124,
125.
126.
127.
128.
129.

130.
131.

133.

134.

135.

[2588.9
[2589.]
2590.9
[2591.9
[2592.3
[2593.J

[2594.]
[2595.9
[2596]
£2597.]
[2598.]

[2599.9
(2609.3
(2601.

. [2602]

£2603.]
[2604]

[2605.]

. [2606]

TORS

Who entitled to letters of administration.

Application for letters.

Citation; proceedings upon return thereof.

Administrator’s bond.

Limited letters may be issued; bond.

County treasurer appointed administrator
to qualify and have fees.

Public administrator of Kings county.

Public administrator of Erie county.

When and how temporary administrators
may be appointed.

General powers of temporary adminis-
trator.

Power as to requiring creditors to present
claims.

Power as to paying debts.

Power as to real property.

Special powers of temporary administrator
of absentee; may provide for family.
Notices required by this article; how

given,
Letters of administration with will an-
nexed ; when and to whom granted.
Renunciation or exclusion of persons hav-
ing prior right.

How executor or administrator with the
will annexed qualifies.

Appointment of administrator de bonis
non.
SurroGate Court Acr 805

§ 118. [§ 2588.] Who entitled to letters of administration.
Administration in case of intestacy must be granted to the persons
entitled to take or share in the personal property, who are compe-
tent and will accept the same, in the following order:

To the surviving husband or wife.

To the children.

To the grandchildren.

To the father.

To the mother.

To the brothers.

To the sisters.

. To any other next of kin entitled to share in the distribution
of the estate, preference being given td the person entitled to take
the largest share! in the estate, except as hereinafter provided.

If a person entitled to take all the personal estate is an infant,
or an incompetent, or has died, his guardian, committee or legal
representative, as the case may be, shall have a prior right to letters
in his place and stead.

If all the persons entitled to take the personal estate are infants,
or adjudged incompetents, or, if no adult or competent person
entitled to take or share in the estate will accept the same, letters
may be granted to the general guardian of an infant or to the com-
mittee of an incompetent, in the place of such infant or incom-
petent.

If no person entitled to take or share in the estate will accept
the same or an appointment is not made by consent as hereinafter
provided, then administration shall be granted as follows:

a. To the public administrator.

b. To the county treasurer of the county, or to the petitioner,
in the discretion of the surrogate.

c. To any other person or persons.

If several persons have an equal right to administration, they
must be preferred in the following order: First, men to women;
second, relatives of the whole blood to those of the half blood;
third, unmarried women to married. If there are several persons
equally entitled to administration, the surrogate may grant letters
to one or more of such persons. Administration may be granted
to one or more competent persons, jointly with, and upon the appli-
cation of, a person entitled; or to a competent person or persons
not entitled, upon the consent of all of the persons entitled to take
or share in the estate who are within this state and competent,
which consent must be in writing, and filed in the office of the

CONS Oy te Cabot
806 Report or Jornr Lecistative Commirter

surrogate. For the purposes of this section a trust company or
other corporation authorized to act as administrator shall be
included in the word “ person.”

[Code, § 2588, without change. ]

§ 119. [§ 2589.] Application for letters. A creditor, or person
interested in the estate of an intestate, or interested in an action
brought or about to be brought in which the intestate, if living,
would be a proper party, may present to the surrogate’s court
having jurisdiction, a petition, praying for a decree awarding let-
ters of administration, either to him, or to another person. A
citation shall not be issued, and a decree shall not be made where
a citation is not necessary, until the petitioner shows to the satis-
faction of the surrogate, the existence of all the jurisdictional facts,
and particularly that the decedent left no will.

[Code, § 2589, without change. ]

~ § 120. [S$ 2590.] Citation; proceedings upon return thereof.
Every person, being a resident of the state and competent, who
has a right to administration prior or equal to that of the peti-
tioner and who has not renounced, must be cited upon a petition
for letters of administration; and where the petitioner is not
entitled to share in the distribution of the estate there must also
be cited all resident infants and adjudged incompetents who are
‘so entitled. The surrogate may, in his discretion, issue a citation
to non-residents, or those who have renounced, or to any or all
other persons interested in the estate. Where it is not necessary
to cite any person, a decree, granting letters may be made on
presentation of the petition. Any person who has a right to
administration, prior or equal to that of the petitioner, may
renounce his right by a written instrument, acknowledged. or
proved, and duly certified which must be filed in the surrogate’s
office; except that a public administrator or county treasurer may
not renounce his right and may only be excused from acting as
such upon his motion duly made and upon an order made and
entered thereupon by the surrogate.

[Code, § 2590, without change. ]

§ 121. [§ 2591] Administrator’s bond. Before letters are
issued to an administrator he must file his official oath, and exe-
Surrogate Courr Act 807

cute to the people of the state, and file with the surrogate, the joint
and several bond of himself and two or more sureties, in a penalty
fixed by the surrogate, not less than the value of the personal
property of which the decedent died possessed and of the probable
amount to be recovered by reason of any right of action, granted
to an executor or administrator, by special provision of law, or by
reason of a cause of action which existed in behalf of the decedent;
except that where the person or persons about to be appointed is
or are entitled to the whole estate, the surrogate may dispense
with a bond or fix the penalty at such sum as will adequately pro-
tect the rights of all creditors. The sum to be fixed as the amount
of the penalty must be ascertained by the surrogate, by the exam-
ination on oath of the applicant or any other person, or otherwise,
as the surrogate thinks proper. The bond must be conditioned that
the administrator will faithfully discharge the trust reposed in
him as such and obey all lawful decrees and orders of the surro-
gate’s court touching the administration of the estate committed
to him,

In cases where the husband or wife and all the next of kin of the
decedent or all the persons entitled to share in the estate consent,
the penalty of the bond need not exceed double the amount of the
claims of the creditors, against the estate, presented to the surro-
gate, pursuant to a notice to be published once a week for four
weeks in such newspaper or newspapers as the surrogate shall
direct, reciting an intention to apply for letters under this pro-
vision, and notifying creditors to present their claims to the surro-
gate’s court on or before a day to be fixed in such notice, which
shall be at least thirty days after the first publication thereof; but
no bond so given shall be for less than five thousand dollars; and
such bond may be increased by order of the surrogate for cause
shown. Pending such application, no temporary administrator
shall be appointed, except on petition of such next of kin.

[Code, § 2591, without change. ]

§ 122. [§ 2592.] Limited letters may be issued; bond. Where
a right of action is granted to an executor or administrator by
special provision of law, or it is alleged that a cause of action
existed in behalf of the decedent, and it appears to be impracti-
cable to give a bond sufficient to cover the probable amount to be
recbvered in the case of an executor, or such probable recovery and
the existing personal estate in the case of an administrator, the
808 Rerort or Joint LecisuativE CoMMIrrer

surrogate may dispense with a bond, or fix the penalty at such
sum as he shall deem sufficient, and issue letters which as to such
cause of action shall be limited to the prosecution thereof, and
restraining the executor or administrator from compromise of the
action or the enforcement of anv judgment recovered therein until
the further order of the surrogate made upon filing satisfactory
securliy.

[Code, § 2592, without change. ]

§ 123. [§ 2593.] County treasurer appointed administrator to
qualify and have fees. A county treasurer appointed adminis-
trator of an estate shall qualify in the manner prescribed in section
[2591] one hundred and twenty-one shall be vested with all the
powers and rights of other administrators and be subject to the
same duties and obligations; and shall be allowed the same fees
for his services as are now allowed by law to administrators, which
fees shall be in addition to the salary and fees now allowed by law
to such county treasurer. Such treasurer may employ an attorney
to act for him as such administrator other than the one, if any,
appointed to act as the county attorney or the official attorney of
such treasurer. ,

[Code, § 2593, without change. ]

§ 124. [§ 2594.] Public administrator of Kings county. The
surrogate of the county of Kings shall, on or before the nineteenth
day of October, nineteen hundred and eleven, and every five years
thereafter, except as hereinafter provided, appoint a suitable per-
son as public administrator of said county to hold office for the
term of five years unless sooner removed for cause, the said term
beginning on the nineteenth day of October, nineteen hundred and
eleven. In case of a vacancy in said office by reason of death,
resignation or otherwise said surrogate shall fill the same by
appointing a suitable person as public administrator for the
full term of five years from the date of such appointment and
qualification. Before entering upon the performance of the duties
of his office the person so appointed must take and subscribe before
the county clerk, or a justice of the supreme court, the constitu-
tional oath of office, and execute a bond with sureties to be
approved by a justice of the supreme court, to the county of Kings,
in a penal sum of fifty thousand dollars, conditioned for the faith-
Surrocatr Court Act 809

ful discharge of all the duties of his office, and that he will fully
and correctly account for and pay over all moneys and property
that may come into his hands as such public administrator, accord-
ing to law, which bond must: be filed with the clerk of the county.
He shall be entitled to retain from all moneys or property of any
intestate that come into his hands after deducting all actual and
necessary expenses the same commissions as are now allowed by
law to executors or administrators, and he shall receive a salary
for his services to be fixed by the board of estimate and apportion-
ment of the city of New York upon the recommendation of the
surrogate of the county of Kings, the same to be raised and paid
each year in the same manner as are other county charges. The
public administrator shall not receive to his own use any fees or
emoluments in addition to his salary, and he shall pay into the
treasury of the city of New York all commissions and costs
received by him from any source whatever ; such payments shall be
made monthly and shall be accompanied by a sworn statement im
such form as the comptroller of the city of New York shall pre-
scribe, showing in detail the costs and commissions received and
allowed to him. A suitable office for said public administrator
shall be provided for him in one of the county buildings in the
county of Kings. The surrogate shall also appoint a counsel and
a clerk to said public administrator, their salaries to be fixed by
the board of estimate and apportionment of the city of New York
upon the recommendation of said surrogate and to be raised and
paid each year in the same manner as are other county charges.
He shall have the prior right and authority to collect, take charge
of and administer upon the goods, chattels, personal property and
debts of persons dying intestate, and for that purpose to maintain
suits as such public administrator as any executor or adminis-
trator might by law in the following cases:

1. Whenever such person dies leaving any assets or effects in the
county of Kings, and there is no widow, husband or next of kin
entitled to a distributive share in the estate of such intestate, en-
titled, competent or willing to take out letters of administration on
such estate.

2. Whenever assets or effects of any person dying intestate, after
his death, come into the county of Kings and there is no such per-
son entitled, competent or willing to take administration of the
estate. In such cases intestacy is presumed until a will is proved
and letters testamentary issued thereon. All provisions of law
conferring jurisdiction, authority or power on, or otherwise relat-
810 Report or Joint LucistativE CoMMITTEE

ing to the office of public administrator of the city of New York
and to the office of public administrator in the several counties of
che state, so far as applicable apply to and are conferred on the
office hereby created. The surrogate of the county of Kings, in
cases where now authorized by law to issue letters of temporary
administration, may in his discretion issue letters of temporary
administration to such administrator without further security
than required by this section.

[Code, § 2594, without change. ]

§ 125. [§ 2595.] Public administrator of Erie county. The
surrogate of the county of Erie shall, within ten days after [the
passage of this act,] September first, nineteen hundred and four-
teen, and every five years thereafter, except as hereinafter pro
vided, appoint a suitable person as public administrator of and
for said county, to take office immediately, and to hold office for
the term of five years from the first day of January succeeding
his appointment, unless sooner removed for cause.

Tn case of a vacancy in said office by reason of death, resignation

or otherwise, said surrogate shall fill the same by appointing a suit-
able person as public agnatnisteater, to take office immediately upon
his appointment and qualifentton, and hold for the term of five
years from the first day of January succeeding his appointment,
unless sooner removed for cause.
Before entering upon the performance of the duties of his office,
the person so appointed shall take and subscribe before the county
clerk or a justice of the supreme court, the constitutional oath of
office, and execute a bond, with sufficient sureties to be approved
by a justice of the supreme court, to the county of Erie, in the
penal sum of ten thousand dollars, conditioned for the faithful dis-
charge of the duties of his office, and that he will fully and correctly
account for and pay over all moneys and property that may come
into his hands as such public administrator, according to law,
which bond shall be filed with the clerk of said county.

Said public administrator shall be entitled to retain from all
moneys or property that come into his hands, after deducting all
actual and necessary expenses, the same commissions as are now
allowed by law to exceutors or administrators, and all provisions
of law conferring jurisdiction, authority or power on, or otherwise
relating to, the one of public administrator of the city of New
York, and to the office of public administrator of the county of
Surrogate Courr Act 811

Axings, and in the several counties of the state apply to and are
conferred on the office hereby created.

The surrogate of the county of Erie, where now authorized by
law to issue letters of temporary administration, may, in his dis-
cretion, issue letters of temporary administration to such public
administrator, without further security than required e this
section. > a ee

[Code, § 2595, without change. ]

§ 126. [§ 2596.] When and how temporary administrators may
be appointed. On the application of a creditor, or a person inter-
ested i in the estate, the surrogate may, in his discretion, issue to one
or more persons letters of temporary administration, in either of
the following cases:

1. When for any cause, delay necessarily occurs in the granting

of letters testamentary or letters of administration, or in probating
a will.
. An appointment of a temporary administrator, in a case speci-
fied in this subdivision must be made by an ander, ifa proceeding
for grant of letters of administration or probate of a will is then
pending. At least ten days’ notice of the application for such an
order must be given to each party to the proceeding who has ap-
peared, unless the surrogate is satisfied by proof that the safety
of the estate requires the notice to be shortened, in which case he
may shorten the time of service to not less than two days. If no
proceeding is pending, application shall be by petition and a cita-
tion shall issue in the usual manner directed to the persons entitled
to letters of administration in a ease where no will is known to
exist; or to the executor or executors, trustee or trustees if any,
and such legatees and devisees as the surrogate may direct to be
cited, in cases where a will has been filed.

2. Where a person of whose estate the surrogate would have
jurisdiction, if he were shown to be dead, disuppenn: or is missing
so that, after diligent search, his abode cannot be ascertained, anil
under circumstances which afford reasonable ground to bettew
either that he is dead, or that be has become a lunatic, or that he
has been secreted, confined, or otherwise unlawfully made away
with ; and the appointment ae a temporary administrator is neces-
sary for the protection of his property, and the rights of creditors
or of those who will be interested in the estate, if it is found that
he is dead.

te
812 Revort ox Joint LecisLative CoMMITTEE

Application for such an appointment, in a case specified in this
subdivision must be made by petition, in like manner as where an
application is made for administration in case of intestacy; and
the proceedings are the same as prescribed in this act [title]
relating to such last-mentioned application.

Such an application for the appointment of a temporary admin-
istrator in either case may also be made, with like effect, and in
like manner, as if made by a creditor, by the county treasurer of
the county where the person whose estate is in question last resided ;
or, if he was not a resident of the state, of the county where any of
his property, real or personal, is situated. A temporary adminis-
trator must qualify as prescribed in section [2591] one hundred
and twenty-one of this [chapter] act with respect to an adminis-
trator-in-chief.

[Code, § 2596, without change. ]

§ 127. [§ 2597.] General powers of temporary administrator.
A temporary administrator, appointed as prescribed in this article,
has authority to take into his possession personal property; to
secure and preserve it; and to collect choses in action; and, for
either of these purposes, or for the purpose of determining the
title to personal property in his possession, he may maintain any
action or special proceeding. An action may be maintained
against him, by leave of the surrogate, upon a debt of the decedent,
or of the absentee whom he represents, or upon any cause of action
to which the decedent or absentee would have been a party in like
manner and with like effect as if he were an administrator-in-chief.
The surrogate may, by an order made upon at least ten days’ notice
to all the parties who have appeared in the special proceeding,
authorize the temporary administrator to sell, after appraisal, such
personal property, specifying it, of the decedent, or of the absentee
whom he represents, as it appears to be necessary to sell, for the
benefit of the estate; or, if it appears that the safety of the estate
requires the notice to be shortened, the surrogate may shorten the
notice to not less than two days. The surrogate may, also, by order,
authorize him to pay funeral expenses, or any expenses of the
administration of his trust, or stenographer’s or referee’s fees on
contest of a will or administration; and he may also direct the
payment of a legacy or other pecuniary provision under a will or
a distributive share or just proportionate part thereof, according
to sections [2687, 2688] two hundred and seventeen, two hundred
Surrogates Courr Act 813

and eighteen of this [chapter] act as though he were an executor
or administrator.

[Code, § 2597, without change. ]

§ 128. [§ 2598.]] Power as to requiring creditors to present
claims. A temporary administrator, appointed upon the estate of
either a decedent or an absentee, has the same power as an admin-
istrator-in-chief to publish a notice requiring creditors of the de
cedent or absentee to exhibit their demands to him. The publica-
tion thereof has the same effect, with respect to the temporary
administrator, and also an exeeutor or administrator, subsequently
appointed upon the same estate, as if the temporary administrator
were the executor or an administrator-in-chief, and the person to
whom the subsequent letters are issued were his successor.

[Code, § 2598, without change. ]

§ 129. [§ 2599.] Power as to paying debts. At any time after
the completion of the publication of the notice to creditors by a
temporary administrator, the surrogate may: 1. Prior to an
accounting as provided in subdivision two, upon proof, to his
satisfaction, that the assets exceed the debts, make an order, per-
mitting the temporary administrator to pay the whole or any part
of a debt, due to a creditor of the decedent or absentee; or, upon
the petition of a creditor, a citation may issue to the temporary
administrator, requiring him to show cause why he should not pay
the petitioner’s debt; or

2. Upon the petition of any creditor who shall have presented
and established his claim or upon the application of the temporary
administrator, direct an accounting by such administrator and
upon the judicial settlement of his account may direct the pay-
ment of the expenses of administration and the ratable distribu-
tion of the remaining assets in his hands applicable to the pay-
ment of the debts in payment upon the claims presented and estab-
lished as valid claims against said decedent or absentee, and the
payment into court or the retention by the said temporary admin-
istrator of whatever may remain of the assets of the personal
estate.

When a petition is presented in either of the cases above men-
tioned, the proceedings are, in all respects, the same as where
814 Report or Jory Learstative Commirrer

similar proceedings are instituted by or against an executor or
administrator, as prescribed in this [chapter] act.

[Code, § 2599, without change. ]

» § 130: [[§ 2600.] Power as to real property. When a tem-
porary administrator is appointed and a proceeding is pending
for the probate of a will of real property, or there is a delay in
the granting of letters testamentary or administration on such a
will or in the qualification of a trustee named therein, the surro-
gate may, by the order appointing him, or by a subsequent order,
confer upon him authority to take possession of real property, in
the same or another county, which is affected by the will, and to
receive the rents and profits thereof or to do any other act with
respect thereto, which is, in the surrogate’s opinion, necessary for
the execution of the will, or the preservation or benefit of the real
property. For either of these purposes, he may maintain or
defend any action or special proceeding. The surrogate may, by
an order, confer upon him authority to mortgage, lee or sell any
or all of the real property, for the purposes specified in article
[third] thirteen of this [chapter] act under such circumstances
and restrictions, in such manner, and upon such terms and con-
ditions as are sooniel 4 in said article.

~ [Code, § 2600, without change. ]

8 131. [§ 2601.] Special powers of temporary administrator of
absentee; may provide for family. A temporary administrator,
appointed upon the estate of an absentee, has all the powers and
authority enumerated in the last section, with respect to the real
property of the absentee. His acts, done in pursuance of that
authority, bind the absentee, if living, or his heir or devisee, if he
be-dead, in the same manner as the acts of an executor or admin-
istrator bind His successor.

. Upon proof, satisfactory to the surrogate, that the wife or any
infant child of an absentee upon whose estate a temporary admin-
istrator has been appointed, is in such circumstances as to require
provision to be made out of the estate for his or her maintenance,
clothing, or education, the surrogate may make an order, directing
the temporary administrator to make such provision therefor as
the surrogate deems proper, out of, any personal property in his
hands, not needed for the payment of debts.

[Code, § 2601, without change. ]
Surrocats Courr Act 815

§ 132. [§ 2602.] Notices required by this article, how given.
A notice required to be given, as prescribed in this article, to a
party other than the temporary administrator, must be served upon
the attorney of the party to whom notice is to be given; or, if he
has not appeared by an attorney, upon the party, in like manner
as a notice may be served upon an attorney in a civil action,
brought in the supreme court. But where the attorney or party
to be served does not reside in the surrogate’s county ; or where the
attorney for a party has died, and no other appearance for that
party has been filed in the surrogate’s office; the surrogate may,
by order, dispense with notice to that party ; or may require notice
to be given to him in any manner which he thinks proper.

[Code, § 2602, without change. ]

§ 133. [§ 2603.] Letters of administration with will annexed;
when and to whom granted. If no person is named as executor
in the will, or selected by virtue of a power contained therein;
or if, at any time there is no executor, or administrator with the
will annexed, qualified to act; the surrogate must, upon the appli-
eation of a creditor of the decedent, or a person interested in the
estate of the decedent, or having a lien upon any real property
upon which the decedent’s estate has a lien, and upon such notice
to the other creditors and persons interested in the estate as the
surrogate deems proper, issue letters of administration with the
will annexed, as follows:

1. To an executor or administrator of a sole legatee and
devisee named in a will or to the executor or administrator of a
sole residuary legatee and devisee named in a will,

2. To one or more of the residuary legatees, who are qualified
to act as administrators. A corporation which is a residuary lega-
tee shall be qualified to act as such administrator, although not
specially authorized by its charter or any provision of law.

3. If there is no such residuary legatee or none who will accept,
then to one or more of the principal or specified legatees go
qualified.

4. If there is no such legatee or none who will accept, then to
the husband, or wife, or to one or more of the next of kin, or to one
or more of the heirs or devisees, so qualified.

. If any of the above persons who would otherwise be entitled to
letters is an infant or an adjudged incompetent, administration.
may be granted to his guardian or committee as the case may be,
816 Report or Jornt Luaisuative COMMITTEE

unless there is an adult or competent person equally entitled who
will accept the same.

5. If there is no qualified person, entitled under the foregoing
subdivisions, who will accept, then to the public administrator,
and if there be none for the county, to the treasurer of the
county or to the petitioner in the discretion of the surrogate, and
if neither will accept, to any creditor or competent person desig-
nated by the surrogate.

Except as to the right of priority as provided in this section, the
provisions of section [2588] one hundred and eighteen of this
[chapter] act apply to an application for letters of administration
with the will annexed.

[Code, § 2603, without change. ]

§ 134. [§ 2604.] Renunciation or exclusion of persons having
prior right. Where a person applies for letters of administration
with the will annexed, as prescribed in the last section, and another
person has a right to the administration, prior to that of the peti-
tioner, a citation must issue accordingly unless a renunciation
acknowledged or proved and duly certified of every person having
such a prior right is filed. The surrogate may in his discretion
issue a citation to a person equally entitled. The proceedings
thereupon are the same as upon an application for administration
upon the estate of an intestate.

[Code, § 2604, without change. ]

'§ 135. [[§ 2605.] How executor or administrator with the will
annexed qualifies. An executor from whom a bond is required
as prescribed in this [chapter,] act, or an administrator with.
the will annexed, must, before letters are issued to him, qualify
as prescribed by law with respect to an administrator upon the
estate of an intestate; and the provisions of section [2591] one
hundred and twenty-one of this [chapter,] act, with respect to the
bond to be given by the administrator of an intestate, apply to a
bond given pursuant to this section; except that, in fixing the
penalty thereof, the surrogate must take into consideration the
value of the real property, or of the proceeds thereof, which may
come to the hands of the executor or administrator, by virtue of
any provision contained in the will, and also how much of the
estate, if any, has already been atin iatetad:

[Code, § 2605, without change. ]
Surrogate Courr Act 817

§ 136. [S$ 2606.] Appointment of administrator de bonis non.
When all the administrators, to whom letters have been issued, die
or become incapable, or the letters are revoked as to all of them,
the surrogate must grant letters of administration de bonis non to
one or more persons as their successors, in hike manner as if the
former letters had not been issued; and the proceedings to procure
the grant of such letters are the same, and the same security shall
be required, as upon an original application; except that the sur-
rogate may, in his discretion, in case where the estate has been
partially administered upon by the former representative or repre-
sentatives, fix as the penalty of the bond to be given by such suc-
cessor or successors, a sum not less than the value of the assets of
the estate remaining unadministered.

[Code, § 2606, without change. |

ARTICLE 9

PRODUCTION, PROBATE AND CONSTRUCTION
OF WILLS; EXECUTORS; ANCILLARY
LETTERS; TESTAMENTARY TRUSTEES

Section 137. [[2607.] Petition to compel production of will.

138. [2608.] Probate of wills of citizens of the United
States domiciled in the United King-
dom of Great Britain and Ireland.

139. [[2609.} Who may propound will; contents of peti-
tion.

140. [2610.] Who to be cited thereupon; contents of
citation. .

141. [2611.] Witnesses to be examined; proof required.

142. [[2612.] Absent witnesses to be accounted for; dis-
pensing with testimony; commission ;
proof of handwriting.

148. [2613.} Proof of lost or destroyed will.

144. [2614.] Probate not allowed, unless surrogate
satisfied.

145. [2615.9 Construction of will, how obtained.

146. [2616.} Notice of probate to legatees and devisees.

147. [2617.9] Who may file objections to the probate of
an alleged will; jury trial.
818 Report or Joint Lecisuative ComMittTEr

148.
149.
150.

151.

157.

159.
160.
161.
162.
163.
164.

165.
166.
167.
168.
169.
170.

171.

(2618.
[2619]
[2620]

[2621.J

. [2622]
. (2623.]
. [2624]

155.
156.

[2625.J
[2626.J

[2627]

. [2628]

[2629.]
[2630.]

£26319
(2632.9
[2633.]
[2634]

[2635.]
[2636.}
F2637.]
[2638.3
£2639.

(2640.

(2641.

Notice to legatees and devisees of objec-
tions filed.

Proceedings upon jury trial of contested
probate,

Wills to be recorded and retained; excep-
tion.

Will certified, or record thereof, may be
read in evidence.

Recording wills proved elsewhere within
the state.

Records of certain wills heretofore
proved ; how far evidence.

Revocation of letters upon proof of will.

When letters testamentary may be issued.

Supplementary letters; executors not
named in letters not to act.

Executor failing to qualify or renounce,
how excluded.

Renunciation by nominated executor; re
traction thereof. /

Ancillary letters upon foreign probate.

Upon foreign grant of administration.

To whom ancillary letters granted.

Petition ; citation.

Hearing; security.

Persons acting under aucillary letters
must transmit assets.

When they may be directed to pay with-
out transmission.

General powers and duties.

How testamentary trustee shall qualify.

Appointment of successor.

Security to be required from a trustee or
executor acting as trustee.

Proceedings where testamentary trustee is
also executor or administrator. .

Application of this [chapter.] act.

§ 137. [S$ 2607.] Petition to compel production of will. When-
ever it shall appear by petition of any person claiming to be inter-
ested in the estate of a decedent, that there is reasonable ground to
believe that any person has destroyed, retained, concealed, or is
Surrogate Court Act 819

conspiring with others to destroy, retain or conceal a will or testa-
mentary instrument of a decedent, or has any knowledge as to
such facts, the court must make an order requiring the respondent
to attend and be examined in the premises, and may in such order
or otherwise in the proceeding require the production of any will
or testamentary instrument. Service thereof must be made by
delivery of a certified copy thereof to the person or persons named
therein and the payment or tender to each of the sum required by
law to be paid or tendered to a witness who is subpoenaed to
attend a trial in surrogate’s court.

[Code, § 2607, without change.]

§ 138. [§ 2608.] Probate of wills of citizens of the United States
domiciled in the United Kingdom of Great Britain and Ireland.
The last will and testament of any person being a citizen of the
United States, or, if female, whose father or husband previously
shall have declared his intention to become such citizen, who shall
have died, or hereafter shal] die, while domiciled or resident
within the United Kingdom of Great Britain and Ireland, or any
of its dependencies, which shall affect property within this state
and which shall have been duly proven within such foreign juris-
diction, and there admitted to probate, shall be admitted to pro-
bate in any county of this state wherein shall be any property
affected thereby, upon filing in the office of the surrogate of such
county, and there recording, a copy of such last will and testa-
ment, certified under the hand and seal of a consul-general of the
United States resident within such foreign jurisdiction, together
with the proofs of the said last will and testament, made and

accepted within such foreign jurisdiction, certified in like manner.

Letters testamentary on such last will and testament shall be issued
to the persons named therein to be the executors and trustees, or
either thereof, or to those of them who, prior to the issuance of
such letters, by formal renunciation, duly acknowledged or proven,
and duly certified, shall not have renounced the trust therein
devolved upon them; provided, that before any such will shall be
admitted to probate in any county of this state, the same proceed-
ings shall be had in the surrogate’s court of the proper county as
are required by law upon the proof of the last will and testament
of a resident of this state who shall have died therein; except that
there need be cited upon such probate proceedings only the bene-
ficiaries named in such will.

[Code, § 2608, without change. ]
820 Reporr or Jornr Lecisutarive CoMMITTEER

§ 139. [§ 2609.] Who may propound will; contents of petition.
A petition for the probate of a will may be presented by:

Any person designated in the will as executor, devisee, legatee,
testamentary trustee or guardian ;

A creditor of the decedent, or any other person interested in
the estate ;

Any party to an action brought, or about to be brought, in
which action the decedent, if living, would be a proper party.

Such petition in addition to the general allegations contained
in section [2521] fifty-one of this [chapter] act, shall describe
such will and any other will of the same testator on file in the sur-
rogate’s office, and set forth the names and post-office addresses, so
far as they can be obtained with due diligence, of all the devisees.
legatees and beneficiaries named in said will, or in any other will

so filed.
[Code, § 2609, without change. ]

§ 140. [$ 2610.] Who to be cited thereupon; contents of citation.
The following persons must be cited upon a petition, presented
as prescribed in the last section.

If the will relates exclusively to real property, the husband or
wife, if any, and all the heirs of the testator.

If the will relates exclusively to personal property, the husband
or wife, if any, and all the next of kin of the testator.

If the will relates to both real and personal property, the hus-
band or wife, if any, and all the heirs, and all the next of kin of
the testator.

In every case, each person designated in the will as executor,
testamentary trustee or guardian, and each person named as
executor, testamentary trustee or guardian, or beneficiary in any
other will of the same testator filed in the surrogate’s office.

In addition to the general contents contained in sections [2523]
fifty-three and [2524] fifty-four of this [chapter] act, the cita-
tion must also set forth the name of the person by whom the will
is propounded; whether the will relates exclusively to real prop-
erty, or to personal property, or to both; and if the will is nun-
cupative, that fact.

[Code, § 2610, without change. ]

§ 141. [S$ 2611.] Witnesses to be examined; proof required.
Before a written will is admitted to probate, two, at least, of the
Surrogate Court Act 821

subscribing witnesses must be produced and examined, if so many
are within the state, and competent and able to testify. Before a
nuncupative will is admitted to probate, its execution and the
tenor thereof must be proved by at least two witnesses. The proofs
must be reduced to writing. Any party to the proceeding may
request the oral examination of the subscribing witnesses to the
will and may examine such witnesses and any other witness
produced by the proponent before the surrogate, without first filing
objections to the probate of such will.

[Code, § 2611, without change. ]

§ 142. [§ 2612.] Absent witnesses to be accounted for; dis-
pensing with testimony; commission; proof of handwriting. The
death, absence from the state, or incompetency by reason of lu-
nacy, or otherwise of a subscribing witness required to be
examined as prescribed in this or the last section, or the fact that
such witness cannot, with due diligence, be found within the state,
or cannot be examined by reason of his physical or mental con-
dition may be shown by affidavit or other competent evidence, and
when so shown to the satisfaction of the surrogate, the surrogate
may by an order entered in the minutes or recited in the decree dis-
pense with his testimony; or in a case where such witness is absent
from the state and it is shown that his testimony can be obtained
with reasonable diligence, the surrogate may, in his discretion, and
shall upon the demand of any party, require his testimony to be
taken by commission. Where the testimony of a subscribing wit-
ness has been dispensed with as provided im this section, and one
subscribing witness has been examined, the will may be admitted
to probate upon the testimony of such subscribing witness alone.

If all the subscribing witnesses to a written will be dead, or
incompetent by reason of lunacy or otherwise, to testify, or unable
to testify, or are absent from the state and their testimony has
been dispensed with as provided in this section, or if a subscribing
witness has forgotten the occurrence, or testifies against the execu-
tion of the will, or was not present with the other witness at the
execution of the will; the will may nevertheless be established,
upon proof of the handwriting of the testator, and of the subscrib-
ing witnesses, and also of such other circumstances as would be
sufficient to prove the will upon the trial of an action.

[Code, § 2612, without change. ]
822 Report or Joint Luaisuative ComMItrTEer

§ 143. [§ 2613.] Proof of lost or destroyed will. A lost or
destroyed will can be admitted to probate in a surrogate’s court,
but only in [a] case the will was in existence at the time of the
testator’s death, or was fraudulently destroyed in his lifetime, and
its provisions are clearly and distinctly proved by at least two
credible witnesses, a correct copy or draft being equivalent to one
witness. [where a judgment establishing the will could be rendered
by the supreme court, as prescribed in section 1865 of this act.]

[Code, § 2618. The italicized matter includes the terms of
§ 1865.]

§ 144. [§ 2614.] Probate not allowed, unless surrogate satisfied.
Before admitting a will to probate, the surrogate must inquire
particularly into all the facts and circumstances, and must be
satisfied with the genuineness of the will, and the validity of its
execution.

If it appears to the surrogate that the will was duly executed;
and that the testator, at the time of executing it, was in all respects
competent to make a will and not under restraint; it must be
admitted to probate as a will valid to pass real property, or per-
sonal property, or both, as the surrogate determines, and the peti-
tion and citation require, and must be recorded accordingly. The
decree admitting it to probate must state whether the probate was
or was not contested.

[Code, § 2614, without chauee. ]

§ 145. [§ 2615.] Construction of will, how obtained. An
executor, administrator with the will annexed, or any person
interested in obtaining a determination as to the validity, con-
struction or effect of any disposition of property contained in a
will, may present to the surrogate’s court in which such will was
probated, a petition setting forth the facts which show his interest,
the names and post-office addresses of the other parties interested.
and the particular portion of such will concerning which he
requests the determination of the court.

If the surrogate entertains the application, a citation shall issue
to all persons interested in the question to be presented, to show
cause why such determination should not be made. On the return
of the citation the surrogate shall make such decree as justice
requires.
Surrocate Court Act 823

If a party expressly puts in issue in a proceeding for the pro-
bate of a will the validity, construction, or effect of any disposition
of property, contained in such will, the surrogate may determine
the question, upon rendering a decree, after notice given in such
manner as the surrogate directs to all persons interested who do
not appear on such application in person or by attorney; or, unless
the decree refuses to admit the will to probate, by reason of a
failure to prove any of the matters specified in the preceding sec-
tion [2614], may admit the will to probate and reserve the ques-
tions so raised for future consideration and decree.

[Code, § 2615, without change. ]

' § 146. [§ 2616.] Notice of probate to legatees and devisees.
Before letters are issued, there shall be filed in the surrogate’s
court a written notice, entitled in the proceeding, stating the name
of the testator, that his last will and testament has been offered
for probate, or probated, as the case may be, and the name and
post-office address of the proponent, and of each and every legatee,
devisee or other beneficiary, as set forth in the petition, who has
not been cited or has not appeared or waived citation, with proof
by affidavit of the mailing of a copy of such notice to each of said
beneficiaries.

[Code, § 2616, without change. |

§ 147. [§ 2617.] Who may file objections to the probate of
an alleged will; jury trial. Any person interested in the event as
devisee, legatee or otherwise, in a will or codicil offered for pro-
bate; or interested as heir-at-law, next of kin, or otherwise, in any
property, any portion of which is disposed of or affected, or any
portion of which is attempted to be disposed of or affected, by a
will or codicil offered for probate; or is interested as devisee,
legatee, executor, testamentary trustee or guardian in any other
will or codicil alleged to have been made by the same testator and
not duly revoked by him; may file objections to any will or codicil
so offered for probate.

Such objections must be filed at or before the close of the testi-
mony taken before the surrogate on behalf of the proponent, or
at such subsequent time as the surrogate may direct, and if a jury
trial of any issue is desired the same shall be demanded in the
objections.

[Code, § 2617, without change. ]
824 Reporr or Joint Leatsuative ComMItTtTEEr

§ 148. [§ 2618.] Notice to legatees and devisees of objections
filed. Whenever objections are filed to the probate of a will, the
proponent shall file the notice specified in section [2616] one
hundred and forty-six and serve the same on each of the parties
therein named, and upon any other persons directed by the surro-
gate to be notified, in such manner and within such time as the
surrogate shall direct, which notice shall have the additional state
ment included in or endorsed thereon that objections have been
filed to the probate of such will and that the same will be heard
on a day or at a term of court therein stated. Proof of due
service of such notice shall be made and filed in the surrogate’s
office, and any decree in the proceeding shall not affect the right
or interest of any such person unless he shall have been so notified.

[ Code, § 2618, without change. ]

§ 149. [§ 2619.] Proceedings upon jury trial of contested probate.

Upon the trial before the court and a jury of the objections filed
to the probate of a will, or codicil, or either, the verdict of the jury
or any order or decision of the judge holding the court shall be
entered in the minutes of the court; and if the trial was not held
in the surrogate’s court, such verdict, order or decision shall be
certified by the clerk of the court to the surrogate’s court, where
upon the surrogate shall enter a final decree accordingly.

[Code, § 2619, without change. |

§ 150. [§ 2620.] Wills to be recorded and retained; exception.
Every will admitted to probate, together with the decree, order or
judgment admitting it to probate shall be recorded in the proper
surrogate’s court. Where a written will is proved, it must be filed
and remain in the surrogate’s office. But when it shall be shown,
by affidavit or otherwise, to the satisfaction of the surrogate, that
the decedent left real or personal property in another state or
territory of the United States or in a foreign country, and that the
laws of such state, territory or country require the production of
the original will before the provisions thereof become effective,
the surrogate may, at any time after probate, and upon such
notice to the parties interested in the estate as he may think
proper, cause any original will remaining on file in his office to be
sent by post or otherwise to any court which, or to any officer of
such state, territory or country who, under the laws thereof, is
Surrogate Courr Act 825

empowered to receive the same for probate, or may deliver such
will to any person interested in the probate thereof in such state,
territory or country, or to his representative, upon such terms as
he shall think proper for the preservation of the will and the pro-
tection of other parties interested in the estate.

[Code, § 2620, without change. ]

§ 151. [§ 2621.] Will certified, or record thereof, may be read
-in evidence. The surrogate must cause to be indorsed upon, or
annexed to, the original will admitted to probate, or the exem-
plified copy, or statement of the tenor of the will, which was
admitted without production of an original written will, a certifi-
cate, under his hand, or the hand of the clerk of his court, and his
seal of office, stating that it has, upon due proof, been admitted to
probate, as a will valid to pass real or personal property, or both,
as the case may be. The will, or the copy or statement, so authen-
ticated, the record thereof, or an exemplified copy of the record,
may be read in evidence, as proof of the original will, or of the
contents 01 tenor thereof, without further evidence, and with the
effect specitied in this [chapter.] act.

[Code, § 2621, without change. |

§ 152. [§ 2622.] Recording wills proved elsewhere within the
state. A certified copy of a will of real property, proved and
recorded in any court of the state of competent jurisdiction, must
be recorded upon the request of any person interested therein,
in the office of the county clerk or register as the case requires of
any county in which real property of the testator is situated.

[Code, § 2622, without change. ]

§ 153. ES 2623.] Records of certain wills heretofore proved;
how far evidence. The exemplification of the record of a will,
proved before the judge of the former court of probate, and
recorded in his office before the first day of January, in the year
seventeen hundred and eighty-five, certified under the seal of the
officer having custody of the record, must be admitted in evidence
in any case, after it has been made to appear that diligent and
fruitless search has been made for the original will.

A certified copy of the last will and testament of any deceased
person, which has been admitted to probate, whether as a will of
826 Report or Joint Leaistative ComMItrTEeE

real or personal property, or both, and recorded in the office of the
surrogate in any county of this state, shall be admitted in evidence
in any of the courts of this state, without the proofs and examina-
tion taken on the probate thereof, and whether such proofs shall
have been recorded or not, with like effect as if the original of
such will had been produced and proven in such court, when thirty
years have elapsed since the will was admitted to probate and
record. And the recording of such will shall be evidence that the
same was duly admitted to probate. The exemplification of the.
record of a will which has been proved before the surrogate or
judge of probate, or other officer exercising the like jurisdiction of
another state must, when certified by the officer having by law,
when the certificate was made, custody of the record, be admitted
in evidence as if the original will was produced and proved, when
thirty years have elapsed since the will was proved.

[Code, § 2623, without change. ]

§ 154. [§ 2624.] Revocation of letters upon proof of will.
Where, after letters of administration, on the ground of intestacy,
have been granted, a will is admitted to probate, and letters are
issued thereupon ; or where a subsequent will is admitted to probate
and letters are issued thereupon; the decree granting probate must
revoke the former letters.

(Code, § 2624, without change. ]

§ 155. [§ 2625.] When letters testamentary may be issued.
After a will has been admitted to probate anv person entitled to
letters thereunder who is competent by law to serve, and who
appears and qualifies, is entitled to letters testamentary thereupon.

Where a judgment has been rendered in an action establishing
a will the surrogate must record the [same] will and issue letters
thereupon as directed by the judgment.

A person entitled to letters upon a contingency may appear and
show that the contingency has happened by which he is entitled to
such letters.

A person named as an executor by a person other than the tes-
tator under a valid power contained in a will, must appear and
file an acknowledged or proved, and duly certified selection of him-
self as an executor within fifteen days after the date of the decree
admitting the will to probate, in default whereof the power of
Surrogate Courr Act 827

selection is deemed to have been renounced, unless for good cause
shown the surrogate extends such time ‘or relieves the default.

[Code, § 2625, without change. The second paragraph is Code,
§ 1864 pt.]

§ 156. [§ 2626.] Supplementary letters; executors not named
in letters not to act. If the disability of a person under age, or an
alien named as executor in a will, be removed before the execution
of the provisions of such will is completed, he shall be entitled, on
petition being filed setting forth the facts to supplementary letters
testamentary, to be issued in the same manner as the original let-
ters, and authorized to join in the execution of the will with the
persons previously appointed. A person named in a will as
executor, shall be deemed to be superseded by the issue to another
person of letters testamentary, and shall have no power or authority
whatever as such executor until he appears and qualifies.

[Code, § 2626, without change. ]

§ 157. [§ 2627.] Executor failing to qualify or renounce, how
excluded. If a person nemed as executor in a will, does not
qualify or renounce, withix fifteen days after probate thereof; or
if a person chosen by virtue of a power in the will, does not qualify
or rencunce within fifteen days after the filing of the instrument
designating him; or, in either case, if objections are filed, and the
executor does not qualify or rencunce, within five days after they
are determined, in his favor, or, in a case specified in section
[2567] ninety-seven of this [chapter] act, within five days after
an objection has been established; the surrogate must, upon the
application of any other executor, or any creditor or person mter-
ested in the estate, make an order requiring him to qualify, within
a time therein specified; and directing that, in default of so doing,
he be deemed to have renounced his appointment. Where it ap-
‘pears, by affidavit, or other written proof, to the satisfaction of
the surrogate, that such an order cannot, with due diligence, be
‘served personally within the state, upon the person therein named,
the surrogate may prescribe the manner in which it must be served
which may be by publication. If the person, so appointed execu-
tor, does not qualify within the time fixed, or within such further
time as the surrogate allows for that purpose, an order must be
made reciting the facts, and declaring that he has renounced his
828 Report or Joint Leatstative Commit Tee

appointment as executor. Such an order may be revoked by the
surrogate in his discretion, and letters testamentary may be issued
to the person so failing to renounce or qualify, upon his applica-
tion, in a case where he might have retracted an express renuncia-
tion, as prescribed in the next section.

[Code, § 2627, without change. ]

§ 158. [§ 2628.] Renunciation by nominated executor; retrac-
tion thereof. A person, named as executor in a will may renounce
the appointment by an instrument in writing, signed by him, and
acknowledged, or proved, and duly certified, or attested by one
or more witnesses, and proved to the satisfaction of the surrogate.
Such a renunciation may be retracted by a like instrument, at any
time before letters testamentary, or letters of administration with
the will annexed, have been issued to any other person in his
place; or, after they have been so issued, if they have been revoked,
or the person to whom they were issued, has died, or become a
lunatic, and there is no other acting executor or administrator.
Where a retraction is so made, letters testamentary may, in the
discretion of the surrogate, be issued to the person making it upon
such notice as the surrogate may require. An instrument specified
in this section must be filed in the surrogate’s office.

[Code, § 2628, without change. |

§ 159. [§ 2629.} Ancillary letters upon foreign probate. Where
a will of personal property made by a person who resided without
the state at the time of the execution thereof, or at the time of
his death, has been admitted to probate or established within the
foreign country, or admitted to probate within the state or the
territory of the United States, where it was executed, or where
the testator resided at the time of his death; the surrogate’s court
having jurisdiction of the estate, must, upon an application made
as prescribed in this article, accompanied by a copy of the will,
and of the foreign letters, if any have been issued, authenticated
as prescribed in section [45] forty-five of the decedent estate law,
record the will and the foreign letters, and issue thereupon ancil-
lary letters testamentary, or ancillary letters of administration
with the will annexed, as the case requires.

[Code, § 2629, without change. ]
Surrogate Court Act 829

§ 160. [§ 2630.] Upon foreign grant of administration. Upon
application by the party entitled as hereinafter provided, or by his
duly authorized attorney-in-fact made as prescribed in this article,
to a surrogate’s court having jurisdiction of the estate, and upon
the presentation of a copy, authenticated as prescribed in section
[45] forty-five of the decedent estate law, of letters of adminis-
tration upon the estate of a decedent who resided at the time of
his death without this state, but within the United States, granted
within the state or territory where the decedent so resided, or, in
cases where the decedent, at the time of his death, resided without
the United States, upon the presentation to such surrogate’s court
of satisfactory proof that the party so applving either personally
or by such attorney-in-fact, is entitled to the possession in the
foreign country of the personal estate of such decedent, the
surrogate’s court to which such copy of such foreign letters so
authenticated, or such proof, is so presented, must issue ancillary
letters of administration in accordance with such application,
except in the following cases:

1. Where original letters testamentary or ancillary letters upon
foreign probate have been previously issued, or the- application
therefor has not been finally disposed of.

2. Where original letters of administration, upon the estate,
have been previously issued to a person entitled to the same, who
is legally competent to act, or the application therefor has not
been finally disposed of.

[Code, § 2630, without change. ]

§ 161. Ls 2631.] To whom ancillary letters granted. Where
the will specially appoints one or more persons as the executor
or executors thereof, with respect to personal property situated
within the state, the ancillary letters testamentary must be directed
to the person or persons so appointed, or to those who are com.
petent to act and who qualify. If all are incompetent or fail to
qualify, or in a case where such an appointment is not made,
ancillary letters testamentary, or ancillary letters of adminis-
tration, issued as prescribed in this article, must be directed to the
person named in the foreign letters or to the person otherwise
entitled to the possession of the personal property of the decedent,
unless another person applies therefor, and files with his petition,
an instrument, executed by the foreign executor or administrator,
or person otherwise entitled as aforesaid; or, if there are two or
830 Reporr or Jornr Lucisuarirye ComMirrer

more, by all who have qualified and are acting; and also acknowi-
edged, or proved, and duly certified. authorizing the petitioner to
receive such ancillary letters, in which case, the surrogate must,
if the petitioner is a fit.and competent person, issue such letters
directed to him... Where two or more persons are hamed-in the
foreign letters, or in an. instrument executed as prescribed in this
section, the ancillary letters may be directed to either or any of
them, without naming the others, if the others fail to qualify, or
if, for good cause shows to the surrogate’s satisfaction, the decree
so dlinects,

(Code, § 2631, without change. ]

-§ 162. [§ 2632.]] Petition; citation. An application for ancillary
letters testamentary, or ancillary letters of administration, as
prescribed in this article, must be made by petition which must
set forth the amount of security given on the original appointment,
the name and residence of each creditor, or person claiming to be
a creditor residing within the state, and the amount of his claim
so far as the same may be ascertained. Citation shall thereupon
issue to the state comptroller, and to such creditors, and may issue
generally to all creditors or persons claiming to be creditors.

[Code, § 2632, without change. ]

§ 163. [§ 2633.] Hearing; security. Upon the return of the
citation, the surrogate must ascertain, as nearly as he can do so,
the amount of debts due or claimed to be due, from the decedent
to residents of the state. Before ancillary letters are issued, the
person to whom they are awarded, must qualify, as prescribed
for the qualification of an administrator upon the estate of an
intestate; except that the penalty of the bond may, in the dis
cretion of the surrogate, be in such a sum, not exceeding twice
the amount which appears to be due from the decedent to resi-
dents of the state, as will, in the surrogate’s opinion, effectually
secure the payment of those debts; or the sums which the resident
creditors will be entitled to receive, from the persons to whom
the letters are issued, upon an accounting and distribution, either
within the state, or within the jurisdiction where the principal
letters were issued. If however there appear to be no such ered-
itors, or transfer tax assessable, and a citation to show cause why
such letters should not issue without a bond, has been directed
Surrocats Court Act 831

generally to all creditors within the state and has been duly
served by publication, such letters may issue without a bond.

[Code, § 2633, without change. ]

§ 164. [§ 2634.] Persons acting under ancillary letters must
transmit assets. The person to whom ancillary letters are issued,
as prescribed in this article, must unless otherwise directed in
the decree awarding the letters; or in a decree made upon an
accounting; or by an order of the surrogate, made during the
administration of the estate; or by the judgment or order of a
court of record, in an action to which that person is a party;
transmit the money and other personal property of the decedent,
received by him after the letters are issued, or then in hig hands
in another capacity, to the state, territory, or country, where the
principal letters were granted, to be disposed of pursuant to the
laws. thereof.

(Code, § 2634, without change. }

§ 165. [§ 2635.] When they may be directed to pay without
transmission. The surrogate’s court, or any court of the state,
which has jurisdiction of an action to procure an accounting,
or a judgment construing the will, may in a proper ease, by its
judgment or decree, direct a. person, to whom ancillary letters
are issued as prescribed in this article, to pay, out of the money
or the avails of the property, received by him under the ancillary
letters, and with which he is chargeable upon his accounting,
the debts of the decedent, due to creditors residing within the
state; or, if the amount of all the decedent’s debts here and else-
where exceeds the amount of all the decedent’s personal property
applicable thereto, to pay such a sum to each creditor, residing
within the state as equals that creditor’s share of all the distribut-
able assets, or to distribute the same among the legatees or next
of kin, or otherwise dispose of the same, as justice requires.

[Code, § 2635, without change. |

§ 166. [S$ 2636.] General powers and duties. The provisions
of this [chapter,J act, relating to the rights, powers, duties
and liabilities of an executor or administrator, apply to a person
to whom ancillary letters are granted, as prescribed in this article;
except those contained in article thirteen [thereof] relating to
832 Repvorr or Jornt Lecisnative Committee

the mortgage, lease or sale of real property or where special pro-
vision is otherwise made in this article; or where a contrary in-
tent is expressed in, or plainly to be inferred from, the context.

[Code, § 2636, without change. ]

§ 167. [§ 2637.] How testamentary trustee shall qualify. A
testamentary trustee named in a will or appointed by the surro-
gate shall, before exercising the duties of his office, qualify by
taking and filing with the surrogate an oath of office and such
bond as may be required by the surrogate.

A trust company or other trustee exempted by law from taking
an oath of office, and filing a bond, shall file a consent to accept
such appointment duly executed and acknowledged.

[Code, § 2637, without change. ]

§ 168. [§ 2638.9 Appointment of successor. \Vhen all the
persons named in a will as testamentary trustees die prior to the
probate of the will, or by an instrument in writing renounce the
appointment, or when all the testamentary trustees die or become
incompetent, or are by a decree of the surrogate’s court, removed,
or allowed to resign, or where one of two or more persons named in
a will as testamentary trustees dies prior to the probate of the will,
or by an instrument in writing, renounces his or their appointment.
or where one of two or more testamentary trustees dies or becomes
a lunatic, or is by decree of the surrogate’s court removed or
allowed to resign, and the trust has not been fully executed, the
surrogate’s court may appoint a successor or successors, unless
such appointment would contravene the express terms of the will,
or in a case where there is a trustee in office, unless all the bene
ficiaries waive such appointment in writing. Until a successor
is aypointed the remaining trustee or trustees may proceed and
execute the trust. The successor may be appointed upon the
application of any person interested and upon notice to such
persons as the surrogate may designate.

[ Code, § 2638, without change. ]

§ 169. [§ 2639.] Security to be required from a trustee or
executor acting as trustee. Whenever by any last will and testa-
ment, or by an order of the surrogate’s court, a trustee is
appointed, or an exceutor is appointed who is required to hold,
Surroaatr Court Act 833

Manage, or invest any money, securities or property real or per-
sonal for the benefit of another, such trustee, or executor, before
receiving any such property into his possession or control shall,
unless contrary to the express terms of the will, execute to the
people of the state of New York, in the usual form, a bond with
sufficient surety or sureties in an amount to be fixed by the surro-
gate. Upon any judicial settlement and partial distribution of
such estate or fund the decree may provide for the discharge of
the existing bond, and the filing of a new bond covering the
amount still remaining in the hands of such executor or trustec.

This section shall not affeet any executor or trustee named in
a will executed before this section takes effect.

. [Code, § 2639, without change. ]

§ 170. [§ 2640.] Proceedings where testamentary trustee is
also executor or administrator. Where the same person is a testa-
mentary trustee, and also the executor of the will, or an admin-
istrator upon the same estate, proceedings taken by or against
him, as prescribed in this [chapter,] act, do not affect him as
executor or administrator, or the creditors of, or persons inter-
ested in, the general estate, except in one of the following cases:

1. Where he presents a petition, praying for the revocation
of his letters, he may, also, in the same petition, set forth the facts
upon showing which he would be allowed to resign as testa-
mentary trustee; and may thereupon pray for a decree allowing
him so to resign, and for citation accordingly.

2. Where a person presents a petition, praying for the revoca-
tion of letters issued to an executor or administrator; and any of
the facts set forth in the petition are made, by the provisions of
this [chapter,] act, sufficient to entitle the same person to present
a petition praying for the removal of a testamentary trustee; the
petitioner may pray for a decree removing the person complained
of in both capacities, and for a citation accordingly.

In either case, proceedings upon the petition for the resigna-
tion or removal, as the case requires, of the testamentary trustee,
and for the judicial settlement of his account, may be taken, as
prescribed in this [chapter,] act, in connection with, or separately
from, the like proceedings upon the petition for the revocation of
the letters, as the surrogate directs.

' [Code, § 2640, without change. ]
27
834. Report or Jornr LeatsuaTive CoMMITTER

§ 171. [S$ 2641.] Application of this act. The provisions of
this [chapter] act apply to a trust created by the will of a resi-
dent of the state, or relating to real property, situated within the
state, without regard to the residence of the trustee. or the time’
of the execution of the will. .

[Code, § 2641, without change. ]

Section 172

173.
174.
175.

176.
177.
178.
179.

180.
181.

182.
_ 183.

184.
185.
186.
187.
188.

189.
190.

. [2642.J
[2643.J
[2644]
[2645.]
[2646.]
[2647.]
[2648.]
[2649.J

[2650.]
(2651)

[2652]
[2653.]

[2654]

Ln |
bo
ey

©
2

[2658]

[2659.9
[2660.]

ARTICLE 10
GUARDIANS

Guardian. by judicial appointment and
approval.

Power of court to appoint guardians,

Jurisdiction to appoint general guardian.

Petition for appointment of general guara-
ian of infant; by whom made.

Petition for appointment of general guard-
ian for infant; contents.

‘Who shall be cited ; discretion of surrogate.

Tearing.

Decree appointing general guardian; term
of office.

Qualification of guardian of property.’

Limited and restricted letters of guard-
ianship.

Of general guardian of person.

Appointment of general guardian bv

_ supreme court.

Application for ancillary letters to foreiyn
guardians.

Proceedings thereupon.

Effect of such letters.

Will or deed coutaining appointment to
be proved, et cetera,] and recorded.

Guardian by will or decd; qualification.
letters[[, et cetera].

Appointment of successor.

Guardian to file annual inventory and
account.
Surrodatr Cotvrr Act 835

Section 191. [2661.] Affidavit to be annexed thereto.
192. [2662.] Annual examination of guardian’s ac
counts.
193. [2663.] Proceedings, when account defective [et
cetera].
194, [2664.] Surrogate may direct as to infant’s main-
tenance.

§ 172. [§ 2642.] Guardian by judicial appointment and approval.
A general guardian is one appointed by the supreme, or surro-
gate’s court, for an infant, either over or under fourteen years of
age.

A guardian by will is one appointed by the will of a father or
mother in accordance with the provisions of the domestic relations
law [and of section 1745 of the code of civil procedure, ] who has
duly qualified pursuant to the provisions of this article.

A guardian by deed is one appointed by the deed of a father or
mother in accordance with the provisions of the domestic rela-
tions law, who has duly qualified pursuant to the provisions of
this article.

The term “ guardian ” as used in this [chapter] act applies to
all such guardians, except ancillary guardians.

[Code, § 2642, without change. ]

§ 173. [[$ 2643. Power of court to appoint guardians. The
surrogate’s court has the like power and authority to appoint a
general guardian of the person or of the property, or both, of an
infant, which the chancellor had, on the thirty-first day of Decem-
ber, eighteen hundred and forty-six. It has also power and
authority to appoint a general guardian, of the person or of the
property, or both, of an infant whose father or mother is living,
and to appoint a general guardian of the property only, of an
infant married woman. Such power and authority must be exer-
cised in like manner as they were exercised by the court of chan-
cery, subject to the provisions of this act.

[Code, § 2643, without change. ]

§ 174. [§ 2644.] Jurisdiction to appoint general guardian.
Where an infant has no guardian, a surrogate’s court has juris
diction to appoint a general guardian of an infant’s person, 01
property, or of both, in the following cases:
836 Reporr or Jorst Leatsuative Comuirter:

1. Where the infant is.a resident of jthat. county, or has
sojourned in that county. for at least one year immediately pre-
ceding the application.

2. Where the infant is not a tesident of the state, but has prop-
erty, real or personal, situated in that. eouatys

[Code, § 2644, without change. ]

§ 175. [§ 2645.] Petition for appointment of general guardian
of infant; by whom made. A petition for the appointment of a
general guardian of the person, or property, or both, of an infant
over the age of fourteen years must be made by the infant, except
that such a petition may be made by any person where such infant
is of unsound mind or refuses to make such petition, and in the
judgment of the surrogate it is necessary or proper that such a
guardian should be appointed...

A petition for the appointment of a general guardian of the
person, or property, or both, of an infant under the age of fourteen
years may be made by any person in behalf of such infant.

[Code, § 2645, without change. ]

§ 176. [§ 2646.] Petition for appointment of general guardian
for infant; contents. A petition for the appointment of a general
guardian of an infant shall set forth:

1. The full name, residence and date of birth.

2. The names of the father and mother and whether or not they
are living, and if living, their place of residence; the name and
address of the person with whom such infant resides; and the
names and addresses of the. nearest 'next-of-kin of full age resid-
ing in the county, if both. father and mother are dead.

3. Whether the infant has had, at any time, a: guardian
appointed by will or deed, or an acting guardian in socage, or a
guardian of the person appointed pursuant to section eighty-six of
the domestic relations law.

4. The estimated value of the personal sige and of the
annual income from any other personal property or real estate,
to which the infant is or will be entitled.

5. The facts upon which the jurisdiction of the court depends.

6. If either parent is living and there are reasons why the
parent should not be appointed such guardian, the reasons there

for. ' '
Surrocare Courr Act 837

7. If the petitioner be a non-resident marricd woman, and the
petition relates to personal property ‘only, it must affirmatively
show’ that the property is not subject to the control or disposition
of her husband, by the law of the petitioner’s residence, and must
set forth the name and residence of such husband.

8. The petition may set forth the reasons why a person named
therein would be a proper and suitable person to be appointed
such general. guardian.

‘[Code, § 2646, without change. ]

§ 177. [§ 2647.] Who shall be cited; discretion of surrogate.
Upon presentation cf the petition, a citation to show cause why
the application should not be granted shall be issued as follows:

1. To the parent or parents, who are within the state and
whose residences therein are known, or if there be none, to the
grandparents who are within the county.

2. To the person having the care and custody of the infant, or
with whom he resides.

3. If the application is made on behalf of an infant over four-
teen years of age by any person on the infant’s refusal to make
such application, to the infant.

4. If the application is made by a married woman, to her hus-
band only.

But no citation shall be necessary to a parent who has aban-
-doned the infant, or is deprived of civil rights, or divorced from
the petitioner hecause of his or her adultery, or adjudged to be
insane, or to be an habitual drunkard, or judicially deprived of
the custody of the child; or in case the petitioner is a married
woman to a husband wha has abandoned her, or is deprived of
civil rights, or divorced because of his adultery, or adjudged to be
insane or an habitual drunkard.

The surrogate must inquire and ascertain as far as practicable,
what relatives of the infant reside in his county or elsewhere,
and with whom the infant resides; and he may in his discretion
cite any relative or class of relatives to show cause why the
appointment should not be made.

[Code, § 2647, without change. ]

§ 178. [§ 2648.] Hearing. Where a citation is not issued,
or upon the return of a citation, the surrogate must inquire into
all the facts and circumstances Pecedine the infant, his condition
838 Rerorr or Jornt Lecistative Commirrer

in life and surroundings, and also must ascertain as nearly as
practicable the value of his personal property or income from
personal property and of the rents and profits of his real property.

[Code, § 2648, without change. ]

§ 179. [§ 2649.] Decree appointing general guardian; term of
office. If the surrogate is satisfied that the allegations of the
petition are true in fact, and that the interests of the infant
will be promoted by the appointment of a general guardian, either
of his person, or of his property, or of both, he must make a
decree accordingly. The same person may be appointed general
guardian of both the person and the property of the infant, or
the guardianship of the person and of the property may be com-
mitted to different persons. -The surrogate may, in his discretion,
appoint a person other than the father or mother of the infant, or
other than the person nominated by the petitioner.

The term of office of a general guardian so appointed expires
when the infant attains the age of twenty-one years.

[Code, § 2649, without change. ]

§ 180. [§ 2650.] Qualification of guardian of property. Before
letters of guardianship of an infant’s property are issued by the
surrogate’s court, the person appointed must take an official oath
as prescribed by law and execute to the infant, and file in the
surrogate’s office his bond, with at least two sureties, in a penalty,
fixed by the surrogate, not less than twice the value of the personal
property, and of the rents and profits of the real property, and of
the annual income receivable by him from any funds of which
the general guardian will not have possession, conditioned that
the guardian will, in all things, faithfully discharge the trust
reposed in him, and obey all lawful directions of the surrogate
touching the trust, and that he will, in all things, render a just
and true account of all moneys and other properties received by
him, and the application thereof, and of his guardianship, when-
ever required so to do, by a court of competent jurisdiction; but
the surrogate may, in his discretion, limit the amount of the bond
to not less than twice the value of the personal property, and of
the rents and profits of the real property, or such annual income
receivable by him, for the term of three years.

Where the property of the infant does not exceed the sum, or
value, of two thousand dollars, as shown by the petition, the sur-
Surrogate Court Act 839

rogate may, in his discretion, make an order dispensing with such
bond wholly or partly, and directing that the guardian collect and
receive the moneys and property of his ward jointly with a person
designated in the order, and that all such moneys and other prop-
erty, so far as the same are conveniently capable of deposit, shall
be deposited in the name of such guardian, subject to the order of
the surrogate, with such bank, savings bank, trust company, or
safe deposit company as shall be designated in such order, and
shall be withdrawn or removed only on the order of the surrogate.

The letters issued thereupon shall contain the substance of the
order.

The cost of the safe deposit box shall be a county charge.

[Code, § 2650, without change. ]

§ 181. [§ 2651.] Limited and restrictive letters of guardianship.
In a case where a guardian of an infant is named or appointed,
and it appears to be impracticable to give a bond sufficient to
cover the whole amount of the infant’s personal property, the
surrogate may, in his discretion, accept security, approved by him,
not less than twice the amiotite of the particular portion of the
infant’s property which the guardian will be authorized under
the letters to receive; and issue letters thereon limited to the
receiving and administering only such personal property for
which double the security has been given, and restraining the
guardian from receiving any other personal property of the infant,
until the further order of the surrogate, on additional further sat-
isfactory security.

[Code, § 2651, without change. ]

§ 182. [§ 2652.] Of general guardian of person. Before letters
of guardianship of an infant’s person are issued by the surro-
gate’s court, the person appointed must take the official oath, as
prescribed by law. The surrogate may also require him to exe-
cute to the infant a bond, in a penalty fixed by the surrogate,
and with or without sureties, as to the surrogate seems proper;
conditioned that the general guardian will in all things faithfully
discharge the trust reposed in him, and duly account for all money
or other property which may come to his handle, 2 as (lirected by
the surrogate’s court.

_[Code, § 2652, without change. |
840 Revorr or Joruny Lecistarive ComMirrer

§ 183. [§ 2653.] Appointment of general guardian by supreme
court. Where the supreme court, or any court other than the
surrogate’s court, appoints a general guardian of an infant’s per-
son, or property, or both, a certified copy of the order or decree
appointing such guardian and of the bond or undertaking given
by such guardian shall be filed by him in the surrogate’s court
of the county in which the infant resides, or if such infant be a
non-resident of the county in which such infant has property real
or personal, and a minute thereof made and indexed in the book
kept by the surrogate in which orders or decrees appointing guard-
ians are entered. A guardian so appointed shall be subject to
all the duties and liabilities of a general guardian specified in this
article [title].

[Code, § 2653, without change. ]

§ 184. [§ 2654.] Application for ancillary letters to foreign
guardians. 1. Where an infant, who resides without the state,
and within the United States, is entitled to property within the
state, or to maintain an action in‘any court thereof, a guardian
of his property, who has been appointed by a court of competent
jurisdiction, within the state or territory where the ward resides,
and has there given security, in at least twice the value of the
personal property, and of the rents and profits of the real prop-
erty, of the ward, may present, to the surrogate’s court having
jurisdiction, a petition, setting forth the facts, and particularly
whether or not there are any debts due or to become due from
the infant to a resident of this state, and that the security given
is sufficient in amount to cover the property sought to be obtained
through such letters, and that the court has jurisdiction of the
infant, and praying for ancillary letters of guardianship aecord-
ingly. The petition must be accompanied with exemplified copies
of the records and other papers, showing that he has been so
appointed and has given the security required in this section,
which must be authenticated in the mode prescribed in section
forty-five of the decedent estate law, for the authentication of
records and papers, upon an application for ancillary letters testa-
mentary, or ancillary letters of administration. Such petition and
authenticated records and papers shall be conclusive evidence of
the facts therein set forth in any court of this state.

9. Where an infant, who resides without the state, and within
a foreign country is entitled to personal property within the state,
+ Surrogate Court Act 841

or to maintain an action, or special proceeding in any court
thereof respecting such personal property, a guardian of his prop-
erty, authorized to act as such within the foreign country where
the ward resides, may apply to the surrogate’s court of the county
where such personal property or any part thereof is situated, for
ancillary letters of guardianship on the personal estate of such
infant and the person so authorized must present to the surrogate’s
court having jurisdiction a petition setting forth the facts and
such additional allegations regarding debts and security as
required in subdivision one of this section, and praying for ancil-
lary letters of guardianship on the pensénul estate of such infant.
The petition must be accompanied with the exemplified copies of
the records and other papers showing the appointment of such
foreign guardian, or where such foreign guardian has not been
appointed by any court, with other proof of his authority to act
as such guardian within such foreign country, and also with proof
that pursuant to the laws of such foreign country, such foreign
guardian is entitled to the possession of the ward’s personal
estate. Exemplified copies of the records, where used pursuant
to this subdivision, must be authenticated by the seal of the court,
or officer, by which or by whom such foreign gnardian was
appointed, or the officer having the custody of the seal or of the
record thereof, and the signature of a judge of such court, or the
signature of such officer and of the clerk of such court or officer,
if any; and must be further authenticated by the certificate, under
the principal seal of the department of foreign affairs, or the
department of justice of such country, attested by the signature
or seal of a United States consul. Such petition and authenticated
records and papers shall be conclusive evidence of the facts therein
set forth in any court of this state.

., [Code, § 2654, without change. ]

-§ 185. [[§ 2655.] Proceedings thereupon. Where the surrogate
is satisfied upon the papers presented, as prescribed in the last
section, that the case is within that section, and that it will be for
the ward’s interest that ancillary letters of guardianship should
be issued to the petitioner, he may make a decree granting aneil-
liry letters accordingly. Such a decree may be made without a
citation or a citation may issue to such persons as the surrogate
thinks proper, to show cause why the prayer of the petition should
not be granted. But before the ancillary letters are issued, the
842 Report or Jornt. Leaistative Commirrer

surrogate must direct that any debts appearing to be due or owing
from the infant to residents of this state be paid or security given
therefor.

[Code, §. 2655, without change. ]

-§ 186. [§ 2656.] Effect of such ietters. Ancillary letters of

guardianship are issued as prescribed i in the last section, without
security except as provided in that section and without an oath of
office. If issued in a ease provided for in subdivision one, of
section [2654,]Jone hundred and eighty-four, they authorize the
person to whom they are issued to demand and receive the personal
property, and the rents and profits of the real property of the
ward; to dispose of them in like manner as a general guardian of
the property appointed as prescribed in this article; to remove
them from the state, and to maintain or defend any action or
special proceeding in the ward’s behalf. If issued in a case pro-
vided for in subdivision two of section [2654,] one huudred and
eighty-four; such ancillary letters of guardianship authorize the
person to whom they are issued to demand and receive the per-
sonal property of the ward, and to dispose of it in like manner
as a guardian of property appointed as prescribed in this article,
and to maintain or defend any action or special proceeding
respecting such personal property in the ward’s behalf. But in
neither case do such letters authorize such ancillary guard-
ian to receive from a resident guardian, executor, or adminis-
trator, or from a testamentary trustee, subject to the jurisdiction
of a surrogate’s court, money or other property belonging to the
ward, in a case where letters have been issued to a guardian of
the infant’s property, from a surrogate’s court of a county within
the state, upon an allegation that the infant was a resident of
that county, except by the special direction made upon good cause
shown, of the surrogate’s court from which the principal letters
were issued, or unless the principal letters have been duly revoked.

[Code, § 2656, without change. }

§ 187. [§ 2657.] Will or deed containing appointment to be
proved, et cetera, ] and recorded. A person shall not exercise, within
the state, any power or authority, as guardian of the person or
property of an infant, by virtue of an appointment contained in
the will of the infant’s father or mother, being a resident of the
Surroaatr Courr Act 843

state, and dying after this [chapter] act takes effect, unless the
will has been duly admitted to probate, and recorded in the proper
surrogate’s court, and letters of guardianship have been issued to
him thereupon; or by virtue of an appointment contained in a
deed of the infant’s father or mother, being a resident of the state,
executed after this [chapter] act takes effect, unless the deed has
been acknowledged or proved, and certified, so as to entitle it to
be recorded, and has been recorded in the office for recording deeds
in the county, in which the person making the appointment
resided, at the time of the execution thereof. Where a deed con-
taining such an appointment is not recorded, within three months
after the death of the grantor, the person appointed is presumed
to have renounced the appointment; and if a guardian is after-

ward duly appointed by a surrogate’s court, the presumption is
conclusive.

[Code, § 2657, without change. ]

§ 188. [§ 2658.] Guardian by will or deed; qualification, letters[,
et cetera]. Where a will, containing the appointment of a guardian,
is admitted to probate, or a deed is recorded as provided in the
foregoing section, the person appointed guardian must, within
thirty days thereafter, qualify by taking and filing his oath of
office, and a bond as fixed by the surrogate, unless contrary to the
express provision of the will or deed, and by filing a petition or
affidavit setting forth the facts which entitle him to so qualify
and receive letters; except that a trust company so named, instead
of filing such oath and bord, shall file a consent to accept such
appointment duly executed and acknowledged; otherwise he is
deemed to have renounced the appointment. But the surrogate,
either before or after the expiration of thirty days, may extend
the time so to qualify, upon good cause shown, for not more than
three months. A person appointed guardian by will or deed may,
at any time before he qualifies, renounce the appointment by a
written instrument, acknowledged, or proved, and duly certified,
and filed in the surrogate’s office.

(Code, § 2658, without change. ]

§ 189. [§ 2659.] Appointment of successor. Where no guardian
appointed by will or deed remains in office on account of resigna-
tion, removal, or death, a general guardian may be appointed by
the surrogate’s court, with all the powers conferred by the will
844 Report or Jornrt Leatsuative ComMirrer

or deed and with the effect prescribed in section [2563] ninety-
three of this [chapter] act; unless such an appointment would
contravene the express terms of the will or deed.

[Code, § 2659, without chiange.] |

§ 190. [§.2660.] Guardian to file annual inventory and account.
A guardian of an infant’s property must, in the month of Janu-
ary of each year, as long as-any of the infant’s property, or of the
proceeds thereof, remains under his control, file in the surrogate’s
court the following papers:

1. An inventory, containing a full and true statement and
description of each article or item of personal property of his
ward, received by him, since his appointment, or since the filing
of the last annual inventory, as the case requires; the value of each
article or item so received; a list of the articles or items, remain-
ing in his hands; a statement of the manner in which he has dis-
posed of each article or item, not remaining in his hands; and a
full description of the amount and nature of each investment of
money, made by him.

2. A full and true account, in form of debtor and creditor, of
all his receipts and disbursements of money, during the preceding
year; in which he must charge himself with any balance remain-
ing in his hands, when the last account was rendered, and must
distinctly state the amount of the balance remaining in his hands,
at the conclusion of the year, to be charged to him in the next
year’s account.

3. The names and residences of the sureties on his bond; if
natural persons whether they are living; and whether the security
of the bond has become impaired.

4, The guardian of an infant’s property may be required by the
surrogate, with the annual account of the infant’s property, to
produce for examination by the surrogate, all securities or evi-
dences of deposit or investment, which he has relating to the dis-
position of the estate of the infant.

[Code, § 2660, without change. ]

§ 191. [§ 2661.] Affidavit to be annexed thereto. With the
inventory and account, filed as prescribed in the last section, must
be filed an aflidavit, which must be made by the guardian, unless,
for good cause shown in the affidavit, the surrogate permits the
same to he made by an agent.or attorney, who is cognizant of the
. : is
Surrogate Courr Act 845

facts. The affidavit must state, in substance, that the inventory
and account contain, to the best of the affiant’s knowledge and
belief, a full and true statement of all the guardian’s receipts and
disbursements, on account of the ward; and of all money and
other personal property of the ward, which have come to the hands
of the guardian, or have been received by any other person by his
order or authority, or for his use, since his appointment, or since
the filing of the last annual inventory and account, as the case
requires; and of the value of all such property; together with a
full and true statement and account of the manner in which he
has disposed of the same, and of all the property remaining in his
hands at the time of filing the inventory and account; and a full
and true description of the amount, and nature of each invest-
ment made by him, since his appointment, or since the filing of
the Jast annual inventory, and account, as the case requires; and
that he does not know of any error or omission in the inventory
or account to the prejudice of the ward.

[Code, § 2661, without change. ]

§ 192. [§ 2662.] Annual examination of guardian’s accounts.

In the month of February;,of each year and thereafter until com-
pleted, the surrogate must, for the purposes specified in the next
section, examine or cause to be examined, under his direction, all
inventories and accounts of guardians filed since the first day of
February of the preceding year,, The examination may be made
by the clerk of the surrogate’s court, or by a person specially
appointed by the surrogate to make it, who must, before he enters
upon the examination, subscribe and take before the surrogate,
and file with the clerk of the surrogate’s court, an oath faithfully
to execute his duties and to make a true report to the surrogate.

[Code, § 2662, without change. ]}

§ 193. Ls 2663.] Proceedings, when account defective[, et
cetera]. If it appears to the surrogate, upon an examination made
as prescribed in the last section, or by the report of such special
examiner, that a guardian of an infant’s property, has omitted to
file his annual inventory or account, or the affidavit relating thereto
as prescribed in the last section but one; or if the surrogate is of
the opinion, that the interest of the ward requires that the guardian
should render a more full or satisfactory inventory or account;
S46 Revorr or Jomnt Lecistative CoMMItTTrer

or where the surrogate has reason to believe that sufficient cause
exists for the guardian’s removal, the surrogate may, in his dis-
cretion, appoint a fit and proper person special guardian of the
ward, for the purpose of filing a petition in his behalf, for the
removal of the guardian, and prosecuting the necessary proceedings
for that purpose. And in a like case where said special exarhiner
has been appointed, the surrogate shall make an order appointing
said examiner special guardian of such infant with authority to
procure the filing of an amended account or a proper account, and
to prosecute a proceeding for the removal of such guardian when
necessary. The surrogate in all cases of examination or prosecu-
tion as aforesaid shall fix the fees and compensation of such spe-
cial examiner and special guardian, and may in his discretion
make an order charging them in whole or in part upon the guard-
ian personally, the fund in his hands, or upon the county, in
which latter case he shall certify the items thereof to the board of
supervisors of the county or in the city of New York to the
proper officers, and the same shall be audited and paid as other
county or city charges.

[Code, § 2663, without change. ]

§ 194. [[$ 2664.]] Surrogate may direct as to infant’s mainte-
nance. Upon the petition of the guardian of an infant’s person
or property; or of the infant; or of any relative or other person
in his behalf; the surrogate, upon notice to such persons, if any,
as he thinks proper to notify, may make an order, directing the
application, by the guardian of the infant’s property, to the sup
port and education of the infant, of such a sum as to the surrogate
seems proper, out of the income of the infant’s property; or,
where the income is inadequate for that purpose, out of the
principal.

[Code, § 2664, without change. ]
Surroaare Courr Act SLT

ARTICLE 11

APPOINTMENT OF APPRAISERS; INVENTORY;
DISCOVERY OF PROPERTY

Section 195. [2665.} Appointment of appraisers and making

inventory.

196. [2666.] Appraisal in different places; appraisal
of newly discovered property.

197. [2667.] Contents of inventory.

198. [2668.] Return of inventory.

199. [2669.] Return of inventory; how compelled.

200. [2670.] Exemption for benefit of family.

201. [2671.] Proceedings to compel set-off of exemyn
property.

202. [2672.} What shall be deemed assets.

203. [2673.] Assets; debt due from executor to tes-
tator; effect of discharge by will.

204, [2674.] Apportionment of rents, annuities and
dividends.

205. [2675.] Proceedings to discover property withheld.

206. [[2676.] Trial and decree.

§ 195. [§ 2665.] Appointment of appraisers and making in-
ventory. On the application of an executor or administrator, an
order must be entered in the surrogate’s court appointing two dis-
interested appraisers, as often as may be necessary, to appraise the
personal property of a deceased person. The executor or admin-
istrator, within three months after qualifving and after giving
at least five days’ notice personally or by mail to the legatees or
next of kin, residing in the county of the decedent, and posting a
notice in three public places of the town, or city where he resided,
specifying the time and place at which the appraisement will be
made, must make a true and perfect inventory of all the personal
property of the decedent. Before making the appraisement, the
_ appraisers must take and subscribe an oath, to be inserted in the
inventory, that they will truly, honestly and impartially appraise
the personal property exhibited to them, according to the best of
their knowledge and ability. They must in the presence of such
of the parties interested as attend, estimate and appraise the prop-
S48 Revorr or Jornr Lecistative ComMirrer

erty exhibited to them, and sct down each article separately with
the value thereof in dollars and cents, distinctly, in figures oppo-
site to the articles respectively.

[Code, § 2665, without change.

§ 196. [§ 2666.] Appraisal in different places; appraisal of
newly discovered property. Should any of the personal property
to be inventoried be in different or distant places, the same
appraisers mav complete such inventory in anv place where such
property mav be, and may adjourn the appraisal to such place: or,
upon application dulv made, the surrogate may appoint other
appraisers to make the inventory of such unappraised property.
and the same notice of such appraisal shall be given as for the
lneal appraisal except the posting of notices.

Tf personal property not mentioned in any inventory come to
the possession or knowledge of an exeentor or administrator. he
must cause the same to be dulv appraised. and an inventorv thereof
to be returned within one month after the discovery thereof: and
the making of such inventorv and return mav be enforced in the
same manner as in the case of a first inventory.

[Code, § 2666, without change. ]

§ 197. [§ 2667.] Contents of inventory. The inventory must
contain a particular statement of all bonds, mortgages, notes and
other securities for the payment of money belonging to the
deceased, known to the executor or administrator and of all debts
owing by such executor or administrator to the deceased whether
discharged by the will or not, with the name of the debtor in each
security, the date, the sum originally payable, the amount due at
decedent’s death and the-snm which, in the judgment of the
appraisers, is collectible on each security; and of all moneys
belonging to the deceased, which have come to the hands of the

executor or administrator.

[Code, § 2667, without change. ]

§ 198. [§ 2668.] Return of inventory. Duplicates of the in-
ventory must be made and signed by the appraisers, one of which
must be retained by the executor or administrator, and the other
filed in the surrogate’s office within three months from the date
of the letters. On returning such inventory, the executor or ad-
Surrocare Courr Aor 849

ministrator must take and subscribe an oath, indorsed upon or
annexed to the inventory, stating that the inventory is in all
respects just and true, that it contains a true statement of all the
personal property of the deceased which has come to his knowl-
edge, and particularly of all money belonging to the deceased.
and of all just claims of the deceased against him, according to
the best of his knowledge. Any one executor or administrator,
on the neglect of the others, may return an inventory; and the
executors or administrators so neglecting shall not thereafter inter-
fere with the administration or have any power over the personal
property of the deceased; but the executor or administrator so
returning the inventory shall have the whole administration,
until the delinquent return, and verify an inventory in accord-
ance with the provisions of this article.

[ Code, § 2668, without change. ]

§ 199. [[$ 2669.] Return of inventory; how compelled. A
creditor, coexecutor or coadministrator, or person interested in
the estate may present to the surrogate’s court a petition showing
that an executor or administrator has failed to return an inven-
tory, or a sufficient inventory, within the time prescribed by law
therefor. If the surrogate js satisfied that the executor or ad-
ministrator is in default, he must make an order requiring the
delinquent to return the inventory, or a further inventory, or
in default thereof, to show cause at a time and place thereia
specified, why he sliguld not be removed or punished. On the
return of the order, if the delinquent has not filed a sufficient
inventory, the surrogate may revoke his letters, or issue a warrant
of arrest against him, on which the proceedings are the same as

on a warrant issued for disobedience to an order [as prescribed
in article one of title twelfth of chapter seventeenth of this act.]
in proceedings supplementary to execution. A person committed
to jail on the return of a warrant of arrest issued as prescribed
in this section, may be discharged by the surrogate or a justice
of the supreme court, on his paying and delivering, under oath,
all the money and other property of the decedent, and all papers
relating to the estate under his control, to the surrogate, or to
a person authorized by the surrogate to receive the same.

[ Code, § 2669, without change of substance. ]
S50 Repvorr or Jorny Luecisuative ComMirrern

§ 200. [§ 2670.] Exemption for benefit of family. Ifa person
having a family dic, leaving a widow or husband, or minor child
or children, the following articles shall not be deemed assets, but
must be included and stated in the inventory of the estate as
property set off to such widow, husband, or minor child or
children:

1. All housekeeping utensils, musical instruments, sewing
machine and household furniture used in and about the house
and premises, fuel and provisions, and the clothing of the deceased,
in all not exceeding in value five hundred dollars.

2. The family bible, family pictures and school-books, used by
or in such family, and books not exceeding in value fifty dollars,
which were kept and used as part of the family library.

3. Domestic animals with their uecessary food for sixty days,
not exceeding in value one hundred and fifty dollars.

4. Money or other personal property not exceeding in value
one hundred and fifty dollars.

Such property so set apart shall be the property of the surviv-
ing husband or wife, or of the minor child or children if there
be no surviving husband or wife. No allowance shall be made in
money or other property under subdivisions one, two and three
if the articles mentioned therein do not exist.

[ Code, § 2670, without change. ]

§ 201. BS 2671.] Proceedings to compel set-off of exempt prop-
erty. Where an executor or administrator has failed to set apart
property for a surviving husband, wife or child, as prescribed by
law, the person aggrieved may present a petition to the surrogate’s
cout, setting forth the failure and praying for a deerce, requir-
ing such exccutor or administrator to set apart the property
accordingly ; or, if it has been lost, injured or disposed of, to pay
the value thereof, or the amount of the injury thereto, and that he
be cited to show cause why such a decree should not be made. If
the surrogate is of the opinion that sufficient cause is shown, a
citation shall issue accordingly. In a proper case, the decree may
require the executor personally to pay the value of the Property,
or the amount of the injury thereto.

[Code, § 2671, without change. ]

§ 202. [§ 2672.7] What shall be deemed assets. The following
shall be deemed asscts and go to the exccutors or administrators,
Surrocare Courr Act 851

to be applied and distributed as part of the personal property of
the testator or intestate, and be included in the inventory:

1. Leases for years; lands held by the deceased from year to
year; and estates held by him for the life of another person.

2. The interest remaining in him, at the time of his death, in
a term of years after the expiration of any estate for years therein,
granted by him or any other person.

3. The interest in lands devised to an executor for a — of
years for the payment of debts.

4, Things annexed to the frechold, or to any building for the
purpose of trade or manufacture, and not fixed into the wall of a
house so as to be essential to its support.

5. The crops growing on the land of the deceased at the time
of his death.

6. Every kind of produce raised annually by labor and culti-
vation, except growing grass and fruit ungathered.

7. Rent reserved to the deceased which had accrued at the
time of his death.

8. Debts secured by mortgages, bonds, notes or bills; accounts,
money, and bank bills, or other circulating medium, things in
action, and stock in any corporation or joint-stock association.

9. Goods, wares, merchandise, utensils, furniture, cattle, pro-
visions, moneys unpaid on contracts for the sale of lands, and
every other species of personal property not hereinafter excepted.
Things annexed to the freehold, or to a building, shall not go to
the executor, but shall descend with the frechold to the heirs or
devisees, except such fixtures as are mentioned in the fourth sub-
division of this section. ‘The right of an heir to any property, not
enumerated in this section, which by the common law would
descend to him, is not impaired by the general terms of this
section.

[Code, § 2672, without change. ]

§ 203. [§ 2673.] Assets; debt due from executor to testator;
effect of discharge by will. The naming of a person executor in
a will does not operate as a discharge or bequest of any just claim
due or to become due which the testator had against him; but it
must be included among the credits and effects of the Heccused 4 in
the inventory, and the executor shall be liable for the same as for
so much money in his hands at the time the debt or demand
becomes due, and he must apply and distribute the same in the
852 Reporr or Joi? Lecisnative Commirrer

payment of debts and legacies, and among the next of kin as part
of the personal property of the deceased. The discharge or
bequest in a will of a debt or demand of the testator against an
executor named therein, or against any other person, is not valid
as against the creditors of the deceased; but must be construed
only as a specific bequest of such debt or demand; and the amount
thereof must be included in the inventory and, if necessary, be
applied in the payment of his debts; and if not necessary for
that purpose, must be paid in the same manner and proportion as
other specific legacies.

[ Code, g 2673, without change. ]

~ § 204. [§ 2674.] Apportionment of rents, annuities and divi-
dends. All rents reserved on any lease made after June seventh,
eighteen hundred and seventy-five, and all annuities, dividends
and other payments of every description made payable or becom-
ing due at fixed periods under any instrument executed after
such date, or, being a last will and testament that takes effect
after such date, shall be apportioned so that on the death of any
person interested 1 in such rents, annuities, dividends or other such
payments, or in the estate or fund from or in respect to which
the same issue or are derived, or on the determination by any
other means of the intcrest of any such person, he, or his execu-
tors, administrators or assigns, shall be entitled to a proportion of
such rents, annuities, dividends and other payments, according
to the time which shall have elapsed from the commencement or
last period of payment thereof, as the case may be, including the
day of the death of such person, or of the determination of his or
her interest, after making allowance and deductions on account
of charges on such rents, annuities, dividends and other payments.
Every ‘such person or his executors, administrators or assigns
shall have the same remedies at law and in equity for recovering
such apportioned parts of such rents, annuities, dividends and
other payments, when the entire amount of wih such appor-
‘tioned parts form part, becomes due and payable and not before,
as he or they would have had for recovering and obtaining such
entire rents, annuities, dividends and other payments, if entitled
‘thereto; but the persons liable to pay rents reserved bv any lease
or demise, or the real property comprised therein shall not be
resorted to for such apportioned parts, but the entire rents of
‘which such apportioned parts form parts, must be collected and
Svurrocatr Court Act 853

recovered by the person or persons who, but for this section, or
chapter five hundred and forty-two of the laws of eighteen hun-
dred and seventy-five, would have been entitled to the entire rents ;
and such portions shall be recoverable from such person or persons
by the parties entitled to the same under this section. This sec-
tion shall not apply to any case in which it shall be expressly
stipulated that no apportionment be made, vr to any sums made
payable in policies of insurance of any description.

[Code, § 2674, without change. ]

§ 205. [[§ 2675.] Proceeding to discover property withheld.
An executor or administrator may present to the surrogate’s court
from which letters were issucd to him, a petition setting forth on
knowledge, or information and belief, any facts tending to show’
that money or other personal property which should be delivered
to the petitioner, or included in an inventory or appraisal, is in
the possession, under the control or within the knowledge or
information of a person who withholds the same from him; or
who refuses to impart knowledge or information he may have
concerning the same, or to disclose any other fact which will aid
such executor or administrator in making discovery of such prop-
erty, and praying an inquiry respecting it, and that the respond-
ent may be ordered to attend the inquiry and be examined accord-
ingly, and to deliver the property if in his control. The petition
may be accompanied by an affidavit or other written evidence,
tending to support the allegations thereof. If the surrogate is
satisfied, on the papers so presented, that there are reasonable
grounds for the inquiry, he must make an order accordingly,
which may be made returnable forthwith, or at a future time fixed
by the surrogate, and may be served at any time before the hear-
ing. Service thereof must be made by delivery of a certified copy
thereof to the person or persons named therein and the payment,
or tender, to each of the sum required by law to be paid or ten-
dered to a witness who is subpoenaed to attend a trial in surro-
gate’s court.

[Code, § 2675, without change. ]

§ 206. [§ 2676.] Trial and decree. If the person directed to
appear submits an answer denying any knowledge concerning, or
possession of, any property which belonged to the decedent in his
lifetime, or shall make default in answer, he shall be sworn to
854 Report or Jornt Laatsuattves ComMIttTer

answer truly all questions put to him touching the inquiry prayed
for in the petition. If it appears that the’petitioner is entitled to
the possession of the property, the decree shall direct delivery
thereof to him. If such answer alleges title to or the right to
possession of any property involved in the inquiry, the issue
raised by such answer shall be heard and determined and a decree
made accordingly.

[Code, § 2676, without change. ]

ARTICLE 12

CLAIMS; PAYMENT OF DEBTS, LEGACIES AND EX-
PENSES; SALES OF REAL ESTATE UNDER POWER
CONTAINED IN WILL; DEPOSIT OF MONEY AND

SECURITIES

Section 207. [[2677.] Notice to creditors; affidavit of
claimant.

208. [2678.] Effect of failure to present claim pur-
suant to notice.

209. [2679.} Determination of issues arising be
tween representative and the estate;
suspension of statute of limitations
in certain cases.

210. [2680.] Effect of admission and allowance of

claim or debt by representative.

211. [[2681.] Rejected claim to be tried on judicial
settlement; limitation of action by
creditor.

212. [[2682.] Payment of debts.

2138. [[2683.] Disputed or unsettled debt or claim may

be compromised, compounded or sold.

214. [[2684.] Sale of personal property for payment
of debts or legacies.

215. [[2685.] Surrogate’s court may make direction

as to the value, manner and time of
sale of property.

216. [2686.] Proceeding to compel payment of
funeral expenses,
217.

218.
219.

220.
221.
222,
223.

224,

225.

226,

227,

228,

229.
230.

231,

Surrocatr Court Act 855

[2687.}

[2688.]
[2689.}

[2690.]
[2691.]

[2692]

[2693.J

[2694]

(2695.

[2696.]

[2697]

[2698]

[2699.J
[2700.]

Proceeding to compel payment of debt,
legacy or distributive share, or de-
livery of property.

Payment of legacies.

Petition to compel payment of legacy
or delivery of property[[, et cetera,]
by a testamentary trustee,

Proceedings upon return of citation.

Decree for advance payment of legacy[,
et. ectera,] on giving security.

Payment of expenses incurred by rep-
resentative.

Power and duty of executor before
probate.

Power to sell, mortgage or lease real
estate may be executed by qualifying
executors.

Administrators with the will annexed;
rights, powers and duties.

Power to sell, mortgage or lease real
estate may be executed by qualifying
trustees or successors.

Conveyance of real property by executor
or administrator to holder of con-
tract of sale made by a decedent.

Surrogate may direct as to custody,
where coexecutors—[, et cetera,] dis-

agree,

Money paid into court and securities
taken; how disposed of.

Deposit of securities may be ordered on
revocation of letters.

[2664a.] Funds of estates to be kept separate.

§ 207. [§ 2677.] Notice to creditors; affidavit of claimant. The
executor or administrator at any time after the granting of his
letters, may insert a notice once in each week for six months in
such newspaper or newspapers printed in the county as the surro-
gate directs, requiring all persons having claims against the
deceased to exhibit the same, with the vouchers therefor, to him, at
a place to be specified in the notice, at or before a day therein
856 Rerorr or Joint LeEatsiaTIve ComMITTER

named, which must be at least six months from the day of the
first publication of the notice. The executor or administrator may
require satisfactory vouchers in support of any claim presented
and the aftidavit of the claimant that the claim is justly due, that
no payments have been made thereon, and that there are no offsets
‘against the same to the knowledge of the claimant.

[ Code, § 2677, without change. ]

§ 208. [§ 2678.] Effect of failure to present claim pursuant to
notice. If a claim against a deceased person be not presented to
the exccutor or administrator within six months from the first
publication of the notice to creditors, or, if no notice be published,
within one year from the date of issue of letters, the executor or
administrator shall not be chargeable for any assets or moneys
that he may have paid in satisfaction of any lawful claims, or of
any legacies, or in making distribution to the next of kin before
such claim was presented.

[Code, § 2678, without change. ]

§ 209. [§ 2679.] Determination of issues arising between repre-
sentative and the estate; stispension of statute of limitations in
certain cases. On the judicial settlement of the account of an
executor or administrator, he may prove any debt owing to him by
the decedent. Where a contest arises between the accounting party
and any of the other parties, respecting property alleged to belong
to the estate, but to which the accounting party lays claim indi-
vidually; or respecting a debt alleged to be due by the accounting
party to the decedent, or by the decedent to the accounting party,
the contest must be tried and determined in the same manner as
any other issue arising in the surrogate’s court. From the death
of the decedent until the first judicial settlement of the account
of the execytor or administrator, the running of the statute of
limitations against a debt due from the decedent to the account-
ing party, or any other cause of action in favor of the latter
against the decedent, is suspended, unless the accounting party
was appointed on the revocation of former Ictters issued to another
porson, in which ease the running of the statute is so suspended
from the grant of letters to him until the first judicial scttlement
of his account. After the first judicial settlement of the aecount
of an executor or administrator, the statute of limitations begins
Surrogate Courr Act 857

again to run against a debt due to him from the decedent, or any
other cause of action in his favor against the decedent.

[Code, § 2679, without change. ]

§ 210. [§ 2680.] Effect of admission and allowance of claim or
debt by representative. Whenever upon any accounting or judicial
settlement of an account, the executor or administrator admits and
allows a claim or debt against the deceased, other than his own
claim, or has theretofore in writing admitted or allowed such a
claim or debt, the validity of such claim or debt shall be thereby
established.

When such a claim or debt has been so admitted or allowed, or
a judgment against the executor or administrator has been
obtained, whether either has been paid or not, any party adversely
affected thereby may file objections thereto and may show that the
claim or debt was fraudulently or negligently allowed, or paid,
or that the judgment was obtained by fraud, negligence or col-
lusion. If the surrogate shall sustain the objections in a case where
the claim or judgment has not been paid, the claim shall be deemed
to be rejected by the accountant at the time of such determination,
and the time between the presentation of the claim, or the com-
mencement of the action where the claim was not presented, and
the time of such determination shall not be a part of the time
limited in this act for commencing an action thereon.

*.[Code, § 2680, without change. ]

§ 211. [§ 2681.] Rejected claim to be tried on judicial settle-
ment; limitation of action by creditor. If the executor or
administrator doubts the justice or validity of any claim pre
sented to him, he shall serve a notice in writing upon the claim-
ant that he rejects said claim, or some part of it, which he
specifies. Unless the claimant shall commence an action for the
recovery thereof against the executor or administrator within
three months after the rejection, or, if no part of the debt is.then
due, within two months after a part thereof becomes due, said
claimant, and all the persons claiming under him, are forever
‘barred from maintaining such action, and in such ease said claim
shall.be tried and determined upon the judicial settlement.

[Code, § 2681, without change, superseding § 1822, which is not
re-enacted. |
858 Revorr or Joint LeuisLarive CoMMITTEr

§ 212. [§ 2682.] Payment of debts. Every executor and
administrator must proceed with diligence to pay the debts of the
deceased according to the following order:

1. Debts entitled to a preference under the laws of the United
States and the state of New York.

2. Taxes assessed on property of the deceased previous to his
death.

3. Judgments docketed, and decrees entered against the deceased
according to the priority thereof respectively.

4. All recognizances, bonds, sealed instruments, notes, bills and
unliquidated demands and accounts.

Preference shall not be given in the payment of a debt over
other debts of the same class, except those specified in the third
class. A debt due and payable shall not be entitled to a preference
over debts not due. The commencement of a suit for the recovery
of a debt or the obtaining a judgment thereon against the executor
or administrator shall not entitle such debt to preference over
others of the same class. Debts not due may be paid according
to the class to which they belong, after deducting a rebate of legal
interest on the sum paid for the unexpired term of credit without
interest. An executor or administrator shall not satisfy his own
debt or claim out of the property of the deceased until proved to
and allowed by the surrogate; and it shall not have preference
over others of the same class. Preference may be given by the
surrogate to rents due or aceruing on leases held by the testator
or intestate at the time of his death, over the debts of the fourth
class, if it appear to his satisfaction that such preference will
benefit the estate of the testator or intestate.

[Code, § 2682, without change. ]

§ 213. [§ 2683.] Disputed or unsettled debt or claim may be
compromised, compounded or sold. Upon the application of an
exccutor, administrator, guardian or testamentary trustee, the
surrogate may, for good eause shown, authorize the compromising
or compounding of any debt, claim or demand, due or to become
due, which it is necessary to settle, adjust or liquidate in connec-
tion with the settlement of an estate or fund; and the selling at
public auction, on such notice as the surrogate prescribes, of any
uncollectible, stale or doubtful debt or claim belonging to the
estate or fund; but any party interested in the final settlement
Surrogare Courr Act 859

may show on such settlement that such debt’ or claim was fraudu-
lently compromised or compounded.

_[Code, § 2683, without change. ]

§ 214. [§ 2684.]] Sale of personal property for payment of debts
or legacies. An executor or administrator may sell the personal
property of the deceased at any time for the payment of debts, or
legacies, or for making distribution. The sale may be public or
private, and may be on credit not exceeding one year, with
approved security. Articles not necessary for the support and
subsistence of the family of the deceased, or not specifically
bequeathed, must be first sold; and articles so bequeathed must
not be sold until the residue of the personal estate has been applied
to the payment of debts.

[Code, § 2684, without change. ] es

§ 215. [§ 2685.] Surrogate’s court may make direction as to the
value, manner and time of sale of property. Whenever the assets of
an estate consist of real property which an executor is authorized
to sell, or of personal property which it is necessary or proper to
sell, and the value of the same is uncertain or is dependent upon
the time and manner of sale thereof, the executor or administrator
may apply by petition to the surrogate having jurisdiction of the
settlement of the estate, for advice and direction as to the pro-
priety, price, manner and time of sale thereof. If the surrogate,
in his discretion, entertains the application, notice of such appli-
cation shall be given to all persons interested or to such persons as
the surrogate by order directs to have notice, in such manner as
the surrogate shall prescribe. The surrogate shall inquire into the
facts and circumstances and may hear the opinions of witnesses as
to the value of such property and as to the best manner and time
of sale thereof, and may give such advice and direction as shall
seem to him for the best interest of the parties. A substantial
compliance with the authorization so given shall relieve the said
executor or administrator from any charge or objection that the
said estate or persons interested suffered a loss on account of the
time or manner of sale or the price realized.

[Code, § 2685, without change. ]
860 Revorr or Jorur Leaisuative ComMirrex

 § 216. [§ 2686.] Proceeding to compel payment of funeral
expenses. Kvery executor or administrator shall pay, out of the
first moneys received, the reasonable funeral expenses of decedent,
and the same shall be preferred to all debts and claims against the
deceased. If the same be not paid within sixty days after the
‘grant of letters testamentary or of administration, the person hav-
ing a claim for such funeral expenses may present to the surro-
gate’s court a petition praying that the executor or administrator
may be cited to show cause why he should not be required to make
such payment. If upon the return of the citation it shall appear
that the executor or administrator has received moneys belonging
to the estate which are applicable to the payment of the claims
for funeral expenses, and that the executor or administrator ad-
mits the validity of the claim or claims and the reasonableness of
the amount thereof, the surrogate shall make an order directing
the payment of the same, or of such part thereof as he may specify,
within ten days thereafter. If the executor or administrator files
an answer setting forth the facts, and therzin disputes the validity
of the claim or claims, or the reasonableness of the amounts thereof.
the surrogate shall direct that the claim or claims so disputed be
heard upon the judicial settlement of the accounts of such executor
or administrator. If it shall appear that no money has come into
the hands of the executor or administrator the proceeding shall be
dismissed without costs and without prejudice to a further appli-
cation or applications showing that since such dismissal the execu-
tor or administrator has received money belonging to the estate.
At any time after three months from the date of the former order,
if no answer was filed disputing such claim, a further application
may be made by petition stating the facts upon which the belief
of the petitioner that there are moneys in the hands of such execu-
tor or administrator applicable to the payment of his claim, is
based. Upon such further application the issuance of the citation
shall be in the discretion of the surrogate. If upon any account-
ing it shall appear that an executor or administrator has failed
to pay a claim for funeral expenses, the amount of which has
been fixed and determined by the surrogate, as above set forth,
or upon such accounting, he shall not be allowed for the payment
of any debt or claim against the decedent until said claim has been
discharged in full; but such claim shall not be paid before expenses
of administration are paid.

[ Code, § 2686, without change. ]
Surrogate Court Act 861

§ 217. [§ 2687.] Proceeding to compel payment of debt, legacy
or distributive share, or delivery of property. Where the executor
or administrator has not begun the publication of the notice to
creditors to present their claims, and three months have elapsed
since the probate of the will or grant of letters of administration,
or where such publication has been completed, any creditor of
the deceased having a claim, which has not been rejected, or any
person entitled to a specific bequest, or to a legacy or other
pecuniary provision under a will, or to a distributive share of
an estate, may present to the surrogate’s court a petition setting
forth the facts and praying that the executor or administrator
be cited to show cause why he should not pay said claim or pay or
satisfy such bequest, legacy or distributive share. ee

Upon the return of such citation the executor or administrator
may reject such claim, or show good and sufficient cause why he
should not pay such claim, or pay or satisfy such bequest, legacy
or distributive share in whole or in part.

The surrogate may dismiss such petition, or direct immediate
payment or satisfaction thereof in whole or in part, or upon receiv-
ing a bond as provided in section [2688] two hundred and
eighteen of this [chapter] act.

[Code, § 2687, without change. ]

§ 218. [§ 2688.] Payment of legacies. No legacy shall be paid
by an executor, or administrator with the will annexed, before the
completion of the publication of notice to creditors if such notice
be published, or if none be published before the expiration of one
year from the time of granting letters testamentary or of admin-
istration, unless directed by the will or by a decree on an account-
ing to be sooner paid. Bequests of specific articles of property,
other than securities representing money, may be delivered at any
time in the discretion of the executor. Whenever a legacy is
directed by the will to be sooner paid, or specific property is be
queathed, the executor or administrator may require a bond, with
two sufficient sureties, conditioned, that if debts against the
deceased duly appear, and there are not other assets to pay the’
same, and no other assets sufficient to pay other legacies, then the
legatees will refund the legacy so paid, or the value of the articles
so delivered, with interest thereon or such ratable portion thereof.
with the other legatees, as may be necessary for the payment of
such debts, and the proportional parts of such other legacies, if
862 Report or Joint Lreatsuative Commitrer

there be. any, and the costs and charges incurred by reason of the
payment to such legatee, and that if the will, under which such
legacy is paid, be denied probate on appeal or otherwise that such
legatee will refund the whole of such legacy, with interest, to the
executor or administrator entitled thereto.

. [Code, § 2688, without change. ]

§ 219. [§ 2689.] Petition to compel payment of legacy or
delivery of property, etc.,] by a testamentary trustee. Where a
person is entitled, by the terms of the will, to the payment of
money, or the delivery of personal property, by a testamentary
trustee, he may present to the surrogate’s court a petition, setting
forth the facts which entitle’ him to the payment or delivery, and
praying for a decree, directing payment or delivery accordingly ;
and that the testamentary trustee and all other persons whose
rights or interests would be affected by the decree may be cited to
show cause why such a decree should not be made. If the peti-
tioner is so entitled; only upon the happening of a contingency,
or after the expiration of a certain time, he must show in his peti-
tion, that his right ‘to the:money or other property has become
absolute.

[Code, § 2689, without change. ]

§ 220. [§ 2690.] Proceedings upon return of citation. Upon the
return of a citation, issued as prescribed in the last section, the
surrogate must hear the allegations and proofs of the parties, and
must make such a decree in the premises, as justice requires. In
a proper case, the decree may require the testamentary trustee, who
is unable to deliver personal property to which the petitioner is
entitled, to pay the value thereof.

[Code, § 2690, without change.]

§ 221. [§ 2691.] Decree for advance payment of legacy[, et
cetera, ] on giving security. Whenever a person who will be entitled
to the payment or satisfaction of any testamentary provision, or
distributive share, is in actual need of the same or of some part
thereof for his support or education, he may present to tlie surro-
gate’s court his petition setting forth the facts, and thereupon, in
the discretion of the surrogate, a citation may issue to the execu-
tor, administrator or testamentary trustee to show cause why the
Surrocatr Court Act 863

prayer of the petition should not be granted. If it appears on the
return of the citation, that the amount of money and the value of
the other property in the hands of the respondent applicable to
the payment of debts, legacies and expenses, exceeds, by at least
one-third the amount of all known debts and claims against the
estate, of all legacies which are entitled to priority over the peti-
tioner’s claim, and of all legacies or distributive shares of the same
class ; and that the payment or satisfaction of any testamentary pro-
vision or distributive share, or some part thereof, is necessary for
the support or education of the petitioner, whether adult or infant,
or of his family, the surrogate may, in his discretion, make a deeree
directing payment or satisfaction accordingly, on the filing of a
bond, as provided in section [2688] two hundred and eighteen
of this [title] act.

[Code, § 2691, without change. ]

§ 222. [§ 2692.] Payment of expenses incurred by representative.
An executor, administrator, guardian or testamentary trustee may
pay from the funds or estate in his hands, from time to time, as
shall be necessary, his legal and proper expenses of administration
necessarily incurred by him, including the reasonable expense of
obtaining and continuing his bond and the reasonable counsel fees
necessarily incurred in the administration of the estate. Such
expenses and disbursements shall be set forth in his account when
filed, and settled by the surrogate.

[Code, § 2692, without change. ]

§ 223, [§ 2693.] Power and duty of executor before probate.
An executor named in a will has no power to dispose of any part
of the estate of the testator before letters testamentary are granted,
except to pay funeral charges, nor to interfere with such estate in
any manner further than is necessary for its preservation.

[Code, § 2693, without change. |

§ 224. [S 2694.] Power to sell, mortgage or lease real estate
may be executed by qualifying executors. Where any power to sell,
mortgage or lease real estate or any interest therein, is given to
executors as such, or as trustees, or as executors and trustees, and
any of such persons named as executors shall neglect to qualify,
then all sales, mortgages and leases under said power made by the
864 Revort or Jomnr Leaisiative CoMMITTEE

executors who shall qualify shall be equally valid as if the other
executors or trustees had joined in such sale.

[Code, § 2694, without change. ]

§ 225, Ss 2695.] Administrators with the will annexed; rights,
powers and duties. Where letters of administration with the will
annexed are granted, the will of the deceased shall be observed
and performed; and the administrators with such will have the
rights and powers, and are subject to the same duties, as if they
had been named as executors in the will.

Where power to mortgage, lease or sell real estate is given by a
will to an executor or trustee, an administrator with the will
annexed or a successor trustee may execute such power in any
case where the original executor or trustee could execute the same,
unless contrary to the express provisions of the will.

[Code, § 2695, without change. |

§ 226. [§ 2696.] Power to sell, mortgage or lease real estate may
be executed by qualifying trustees or successors. Where any power
to sell, mortgage or lease real estate or any interest therein, is
given to trustees, and any of such persons named as trustees shall
neglect to qualify, then all sales, mortgages and leases under said
power made by the trustee or trustees who shall qualify shall be
equally valid as if the other trustees had joined in such sale,
Where a successor trustee has been appointed by the court, or is
named in a will, he shall have the same power as to such real estate
as the trustee or trustees had who were named in the will, unless
the exercise of such power would be contrary to the express pro-
vision of the will.

[Code, § 2696, without change. ]

§ 227. [§ 2697.] Conveyance of real property by executor or
administrator to holder of contract of sale made by a decedent.
Where a decedent dies seized of lands after he has made a contract
for the conveyance thereof, his executor or administrator may make
a deed reciting said contract and conveying the said-lands. The
executor or administrator or the vendee, his heirs or assigns, may
file a petition praying for the confirmation of the act of the execu-
tor or administrator in delivering the deed, or for a decree that
the same be made and delivered or the executor or administrator
may pray for the like relief in a petition for the judicial settlement
SurRogate Courr Act 865

of his account. In either case, a citation shall issue to all persons
interested, and the court shall make such decree as justice requires.
A deed delivered pursuant to this section, upon its confirmation
by such decree, shall be effectual to convey all the right, title and
interest in the said lands which the decedent had at his death.

[Code, § 2697, without change. ]

§ 228. [§ 2698.] Surrogate may direct as to custody, where
co-executors[, etc.,] disagree. Where two or more co-executors or
co-administrators disagree, respecting the custody of money or
other property of the estate; or two or more testamentary trustees,
or guardians of the property disagree, respecting the custody of
money or other property, belonging to a fund or an estate which
is committed to their joint charge; the surrogate may, upon the
petition of either of them, or of a creditor or person interested in
the estate, and proof, by affidavit, of the facts, make an order,
requiring them to show cause, why the surrogate should not give
directions in the premises. Upon the return of the order, the
surrogate may, in his discretion make an order, directing that any
property of the estate or fund be deposited in a safe place, in the
joint custody of the executors, administrators, guardians, or testa-
mentary trustees, as the case requires, or subject to their joint
order; or that the money of the estate be deposited in a specified
safe bank or trust company, to their joint credit, and to be drawn
out upon their joint order.

[Code, § 2698, without change. ]

§ 229. [§ 2699.] Money paid into court and securities taken; how
disposed of. Where a statute requires the payment of money into,
or the deposit of a security with the surrogate’s court, or the deposit
of a security for the payment of money with the surrogate, the
same must be paid to or deposited with the county treasurer of
the county or to the chamberlain of a city, to the credit of the
beneficiary, or of the estate, or of the special proceeding; unless
the statute contains special directions for another disposition
thereof. Each security so deposited with the county treasurer or
chamberlain must be held and disposed of by him, subject to the
direction of the surrogate’s court; except that he must, unless
otherwise so directed, collect the principal and interest secured

28
866 Report or Joint LeGIsLaAtiIvE CoMMITTEE

thereby. All money collected by or paid to the county treasurer,
or chamberlain as prescribed by this section, must be held, man-
aged, invested and disposed of by him, in like manner as money
paid into the supreme court in an action pending therein. The
provisions of law relating to money paid into or securities deposited
with the supreme court in an action pending therewm and held by
a county treasurer or chamberlain [regulations contained in the
general rules of practice as specified in subdivision eight of section
four of the state finance law, and the provisions of title third, of
chapter eighth of this act, apply to money paid to and securities
deposited with the county treasurer, or chamberlain as prescribed
in this section; except that the surrogate’s court exercises, with
respect thereto, or with respect to a security, in which any of the
money has been invested, or upon which it has been loaned, the

power and authority conferred upon the supreme court by [section
TA7 of this act.] law.

[Code, § 2699, without change of substance; amended as indi-
cated. |

§ 230. [§ 2700.] Deposit of securities may be ordered on revoca-
tion of letters. When, upon the revocation of the letters of an
executor, administrator or guardian, or the removal of a testa-
mentary trustee, a decree shall be made in which such executor,
administrator, guardian or testamentary trustee is personally
charged with or directed to pay a sum of money upon a finding
that he bas made an unlawful investment or disposition of the
estate or fund in his hands, and the security or other instrument
by which such investment or disposition is evidenced, or the prop-
erty in the purchase of which such investment or disposition has
been made, shall not be a part of the assets which his successor
may be legally required to receive, the decree shall direct that such
security or other instrument, or such property, if practicably
capable of delivery under such direction, be forthwith deposited
with a safe deposit company, authorized by law to do business as
such, in such manner as to prevent the withdrawal of the same
except upon the order of the surrogate.

[Code, § 2700, without change. ]

§ 231. [Ss 2664-a.] Funds of estates to be kept separate.
Every executor, administrator, guardian or testamentary trustee
shall keep the funds and property received from the estate of any
Surrogate Courr Acr 867

deceased person separate and distinct from his own personal fund
and property. He shall not invest the same or deposit the same
with any person, association or corporation doing business under
the banking law or other person or institution, in his own name,
but all transactions had and done by him shall be in his name as
such executor, administrator, guardian or testamentary trustee.

Any person violating any of the provisions of this section shall
be guilty of a misdemeanor.

[Code, § 2664-a, added by L. 1916, ch. 588, without change. ]

ARTICLE 13

DISPOSITION OF REAL PROPERTY AND THE
INCOME THEREOF

Section 232. [2701.] When rents of real property may be
applied in the same manner as proceeds
of mortgage, lease or sale.

233. [[2702.] Real property subject to disposition for
the satisfaction of charges against the
same and for distribution.

234, [2703.] For what purposes real property is subject

to disposition.

235. [2704.] Sale to be refused if bond be given.

236. [2705.] When and how real property may be mort-

gaged, leased or sold.

237, [2706.] Trial and determination of claims and ex-

penses; statute of limitations. °

238. [2707.] Order to mortgage, lease or sell.

239. [2708.] Duty of executor or administrator to

execute order after filing bond.

240, [2709.] Order to be executed and report made.

241. [2710.] Execution of order not affected by death[,
et cetera]:

942. [2711.] Execution of the order; decree of judicial

settlement; conveyance to heirs.

943. [[2712.] Allowance on bid to creditor purchasing.

244, [2713.] Provision for payment of undetermined

claims and debts not yet due.
868 Revorr or Jormr Leagistative ComMitTrEer

Section 245. [2714.] When conveyance not to affect purchaser
or mortgagee from heir[, et cetera].
246. [2715.] Effect of conveyance of decedent’s interest
under contract.
247. [2716.] Presumption where records have been

removed.

248. [2717.] Right of life tenant to be considered in
sale.

249. [2718.] Restitution from assets subsequently dis-
covered.

250. Disposition of surplus to satisfy mortgage or other
lien accruing during decedent’s lifetime.

§ 232. [§ 2701.] When rents of real property may be received
by the executor or administrator. An executor or administrator
may present a petition to the surrogate’s court praying for leave to
enter into possession of real property left by his decedent and to
manage and control the same and receive the rents thereof. If
from such petition it shall appear that a mortgage, lease or sale
of such real property will be necessarv unless the purposes specified
in section [2703] two hundred and thirty-four of this [title] act
be otherwise fulfilled, a citation shall issue to all known persons
within the state of New York who have the legal title to such real
estate by descent or devise to show cause why the prayer of the
petition should not be granted. Upon the return of the citation
the surrogate may, in his discretion, grant the prayer of such peti-
tion upon such terms and conditions as justice shall require. The
net rents so collected shall be held by the executor or administrator
and be brought into court upon the judicial settlement of the
account of such executor or administrator and there disposed of
as provided in section [2711] two hundred and forty-two of this
[title] act for the disposition of proceeds of mortgage, lease or
sale of real estate.

[Code, § 2701, without change. ]

§ 233. [S$ 2702.] Real property subject to disposition for the
satisfaction of charges against the same and for distribution. The
real property, or interest in real property, of which a decedent
died seized, may be disposed of as prescribed in this article [title] ;
except where it is exempt[ed] by law from levy and sale by virtue
of an execution [[as prescribed in title second of chapter thirteen
Surrocare Court Act 869

of this act,J or where it can be disposed of under a valid power
contained in a will for the purpose for which the same might be
disposed of under this [title] article.

But no such property, or interest in property, shall be mort-
gaged, leased or sold under an order in surrogate’s court to satisfy
any claim, debt or demand, unless the proceeding therefor, or
the proceeding in which such relief is asked, shall have been
commenced within eighteen months from the date when letters
first issued to an executor or administrator, provided, however,
that in the event of the death or removal of an executor or ad-
ministrator during the pendency of the proceeding, the time be-
tween the commencement of said proceeding and the commence-
ment of a new proceeding by or against his successor in office
shall not be deemed a part of the time limited herein.

[Code, § 2702, without change of substance. ]

§ 234. [§ 2703.] For what. purposes real property is subject to
disposition. The real property specified in the preceding section
[2702 of this title] may be mortgaged, leased or sold for any or all
of the following purposes:

1. For the payment of the debts of the decedent, including
judgment or other liens, excepting mortgage liens, existing thereon
at the time of his death.

2. For the payment of his funeral expenses, including therein
suitable church or other services, a burial lot and a headstone
erected thereon.

3. For the payment of the reasonable expenses of administration
as allowed by the surrogate.

4. For the payment of any transfer tax assessed upon the trans-
fer of such property.

5. For the payment of any debt or legacy charged thereupon.

No mortgage, lease or sale shall be ordered for the purpose of
any of the foregoing payments, if there be personal property
applicable to the full payment and discharge thereof.

Such real property may also be sold:

6. For the payment and distribution of their respective shares
to the parties entitled thereto, where any or all of said parties are
infants, proven or adjudged incompetents, absentees, or persons
unknown, whenever in his discretion the surrogate may so direct.

[ Code, § 2703, without change. ]
870 Report or Joint Lecisuative ComMitrEeE

§ 235. [[§ 2704.] Sale to be refused if bond be given. An order
empowering an executor or administrator to mortgage, lease or
sell shall not be granted if any of the persons interested in the
estate or property execute and file in the surrogate’s office a bond
in such sum and with such sureties as the surrogate directs and
approves, conditioned to pay all the charges against the same
proved and allowed so far as the goods, chattels, rights and credits
of the deceased are insufficient therefor, within such time as the
surrogate may direct. Except that in a proper case the real estate
may be sold for the purpose of distribution of the proceeds as
provided in subdivision six of the preceding section [2703], not-
_ withstanding the giving of such bond.

[Code, § 2704, without change. ]

§ 236. [§ 2705.] When and how real property may be mort-
gaged, leased or sold. At any time after his appointment and
qualification an executor or administrator may apply for an order
to mortgage, lease or sell the real property of the decedent for any
of the purposes specified in section [twenty-seven hundred and
three] two hundred and thirty-four of this act by presenting a
verified petition setting forth facts showing that the personal
property left by the deceased is insufficient for the payment of
the just demands and charges against the same, which petition
shall contain a schedule of the funeral expenses and claims pre-
sented to and allowed by him, and upon presentation thereof a
citation shall issue to, and be served upon all persons interested in
the real estate of such decedent, or in any question raised with
reference to the mortgage, lease or sale thereof; and upon a judi-
cial settlement of the accounts of an executor or administrator, any
party to the proceeding may allege and show by proof such facts
and circumstances as are required to give the court jurisdiction to
order the mortgage, lease or sale of the real property left by the
deceased for any of the reasons specified in section [twenty-seven
hundred and three] two hundred and thirty-four. The peti-
tion presented by the executor or administrator as above pro-
vided, or the petition and account filed in the proceeding for
judicial settlement shall be sufficient proof of the facts therein
stated unless an issue is raised as to any of such statements. IZf
any person interested in such real estate, or in any question raised
with reference to the mortgage, lease or sale thereof, is not a party
to such judicial settlement, the surrogate, before proceeding
Surrogate Court Act 871

further shall cause such person to be brought in by supplemental
citation.

[Code, § 2705, without change. ]

§ 237. [§ 2706.] Trial and determination of claims and expenses;
statute of limitations. If any claim, demand, charge, or expense
set forth in such petition presented prior to an application for
judicial settlement, or set forth in the account or presented on the
Judicial settlement is objected to by any party to the proceeding
whose interest will be affected by its allowance or disallowance,
such claim, demand, charge or expense shall be determined, not-
withstanding its admission or allowance by the executor or admin-
istrator. Where a defense arises under the statute of limitations
as to a claim so admitted or allowed the said claim shall be deemed
to be rejected by the executor or administrator at the time of such
objection, and the time between the presentation of the claim, or
the commencement of an action where the claim was not presented,
and the time of such objection shall not be a part of the time
limited in this act for commencing an action thereon.

A judgment recovered against the executor or administrator
upon a claim against decedent shall be prima facie evidence and
proof of the claim against the real property of decedent, and the
burden of disproving such judgment or of proving that the claim
upon which it was rendered is invalid, or that the judgment was
obtained by collusion, shall be upon the party disputing or object-
ing to the same.

[Code, § 2706, without change. ]

§ 238. [§ 2707.] Order to mortgage, lease or sell. If it shall
appear that it is a proper case for the disposition of the decedents’
real estate, as provided in this [title] article, on account of def-
ciency of personal estate, the surrogate shall make an order recit-
ing the determination made, the amount and general nature of the
various claims and demands which have been admitted or proved,
a description of the property to be disposed of, and directing the
executor or administrator to mortgage, lease or sell the whole or
such part of the real property or interest therein, as the surrogate
therein directs.

If it appears that one or more distinct parcels of which the
decedent died seized have been devised by him or sold by his heirs
872 Revorr or Jotnt Lecisuative CoMMITTEeE

the decree must: provide that the several distinct parcels be sold in
the following order:

1. Property which descended to the decedent’s heirs and which
has not been sold by them. ‘

2. Property so descended which has been sold by them.

3. Property which has been devised which has not been sold
by the devisee.

4. Property so devised which has been sold by the devisee.

Where an order is made directing the sale of the property, or
interest, for distribution only, the order shall fix and determine
the rights and interests of the respective parties therein, and if
a person entitled to an estate or interest in the property sold is
made a party as a person unknown, the court must provide for the
protection of his rights, as far as may be, as if he were known and
had appeared.

The proceeds of the sale of any real property sold by judgment
of another court, which directs said proceeds to be paid into the
surrogate’s court subject to its order, may be directed by such
order of the surrogate to be paid to the executor or administrator
to be brought into the account on such judicial settlement and
disposed of in accordance with the decree made thereupon.

After making the order for mortgage, lease or sale, the surrogate
shall adjourn the judicial settlement to await the proceedings taken
under the order.

[Code, § 2707, without change. ]

§ 239. ES 2708.] Duty .of executor or administrator to execute
order after filing bond. Before proceeding to execute the order
directing that property be mortgaged, leased or sold the executor
or administrator must first execute and file with the surrogate
his bond, with two or more sureties, to the people of the state in
a penalty fixed by the surrogate, conditioned for the faithful per-
formance of the duties imposed upon the principal by the order
and for the accounting by the principal for all moneys received
by him whenever he is required so to do by a court of competent
jurisdiction; unless the order directs that the proceeds of sale or
mortgage be paid by the purchaser or mortgagee to a bank or
trust company to the credit of the executor or administrator, sub-
ject to the further order of the court.

[Code, § 2708, without change. ]
Surrocate Court Act 873

§ 240. [§ 2709.] Order to be executed and report made. The
executor or administrator shall thereupon execute the order, sub-
ject to the approval of the court, and make a report of his proceed-
ings thereunder. The surrogate may confirm or reject the mort-
gage, lease or sale, extend the order to other parcels or require
a re-execution of the order upon such terms and on such conditions
as he may direct, and he may relieve a purchaser from his purchase
in a case where he might be so relieved in the supreme court, on
such terms as justice shall require.

[Code, § 2709, without change. ]

§ 241. [[§ 2710.] Execution of order not affected by death, et
cetera.] The death, removal, or disqualification, before the com-
plete execution of the order, of all the executors or administrators
does not suspend or affect the execution thereof; but the successor
of the person who has died, been removed, or become disqualified,
must proceed to complete all unfinished matters, as his predecessors
might have completed the same; and he must give such security
for the due performance of his duties as the surrogate prescribes.

[Code, § 2710, without change. ]

§ 242. [§ 2711.] Execution of the order decree of judicial
settlement; conveyance to heirs. When the order has been fully
executed, the executor or administrator shall file, on or before the
adjourned day of the judicial settlement, a supplemental account
setting forth his proceedings under the order, the amount of the
proceeds of the sale, and his expenses incurred thereunder. The
surrogate shall thereupon continue and complete such judicial set-
tlement and make such a disposition of the funds in the hands of
the executor or administrator as justice shall require; except that
no decree of distribution or disposition of the proceeds shall be
made in a proceeding commenced within six months from the
grant of letters, until the time for the presentation of claims as
fixed by a notice duly published has expired, or one year has
expired since letters were first issued, and until all known creditors
and persons interested who are not parties to the proceedings have
been brought in or have appeared.

Where it is not necessary or advantageous to mortgage, lease
or sell the real property of the deceased or of the estate, the parties
interested may prove upon any such judicial settlement who are
874 Report or Joint Lecisuative Commirrer

the real and true owners of any property devised by said will, or
who are the only heirs-at-law of said deceased and entitled to sue-
ceed to his real estate, and thereupon such decree of judicial settle-
ment may establish the rights and interests of the said parties
and direct a conveyance to them by such executor or administrator
according to their respective rights, in confirmation of their title
thereto.

[Code, § 2711, without change. ]

§ 243. [§ 2712.] Allowance on bid to creditor purchasing. If,
upon a sale for any purpose other than the distribution of the pro-
ceeds to the parties entitled thereto, a creditor of the decedent be-
comes the purchaser of any of the decedent’s real property, the
surrogate may, upon his application, direct the amount of his claim
to be allowed, in the first instance, upou the purchase price; and
such purchaser shall only be required to pay the balance at the time
of the sale. But, in case the proceeds of the decedent’s real prop-
erty shall be insufficient to satisfy the cost and expenses of adminis-
tration and the debts and funeral expenses of the decedent, the
purchasing creditor shall be allowed and credited, upon the judi-
cial settlement of the accounts of the executor or administrator,
only the amount he may be entitled to receive upon his claim and
shall then pay the difference between the amount originally allowed
and the amount he is entitled to receive. In case anv purchaser
has credit on his bid, as aforesaid, no deed shall be delivered to
him until the judicial settlement of the accounts of the executor
or administrator nor until he shall have paid the entire amcunt
required under the provisions of this section.

[Code, § 2712, without change. ]

§ 244. [§ 2713.] Provision for payment of undetermined claims
and debts not yet due. If any claim remains undetermined at the
making of the decree, or any debt is not yet due and the party
holding the same does not consent to its present payment, the
decree shall dircet that sufficient funds be retained by the exeeutor
or administrator to meet any such claim or demand when déter-
mined, or when payable, and provide for the distribution of any
surplus of the amount so retained.

[Code, § 2718, without change. ]
Surrogate Courr Act 875

§ 245. [§ 2714.] When conveyance not to affect purchaser or
mortgagee from heir[, etc.]. A conveyance of real property, made
pursuant to this [title] article, does not affect, in any way, the title
of a purchaser or mortgagee, in good faith and for value, from an
heir or devisee of the decedent, unless letters testamentary or letters
of administration upon the estate of the decedent were granted,
by a surrogate’s court having jurisdiction to grant them, upon a
petition therefor, presented within two years after his death.

[Code, § 2714, without change. ]

§ 246. [§ 2715.] Effect of conveyance of decedent’s interest
under contract. A conveyance of the decedent’s interest in all
the real property, held by him under a contract for the purchase
thereof, operates as an assignment of the contract to the purchaser ;
and vests in him, his heirs and assigns, all the right, title and
interest of all the persons entitled, at the time of the sale, in and
to the decedent’s interest in the real property.

-A conveyance of the decedent’s interest in a part only of the
real property, held under such a contract, transfers to the pur-
chaser all the decedent’s right, title and interest in and to the
parts so sold; and all rights, which would be acyuired thereto, by
the executor or administrator, or by any person entitled, at the
time of the sale, to the interest of the decedent therein, by per-
fecting the title to the property contracted for, pursuant to the
contract. Upon fully complying with the contract, the purchaser
has the same right to enforce performance thereof, with respect
to the part conveyed to him; and the executor or administrator.
or his assignee, has the same right to enforce performance, with
respect to the residue, as the decedent would have had, if he were
living. Any title acquired by the executor or administrator, or
his assignee, with respect to the part not sold, must be held in
trust for the use of the persons entitled to the decedent’s interest ;
subject to the dower of the widow, if any.

[Code, § 2715, without change. ]

§ 947. [S 27 16.] Presumption where records have been removed.
Where the records of the surrogate’s court have been heretofore,
or are hereafter removed from one place to another, in either
the same or another county or the records of such proceeding have
been lost or destroyed and twenty-five years have elapsed after
876 Report or Joint Learsuative ComMMITTEE

a sale or other disposition of real property, or of an interest in real
property, as prescribed in this [title] article, the due appointment
of a guardian for each infant party to the special proceeding must
be presumed, and can be disproved only by affirmative record evi-
dence to the contrary.

[ Code, § 2716, without change. ]

§ 248. [§ 2717.] Right of life tenant to be considered in sale.
Where any party to the proceeding has an existing or inchoate
right of dower, or where any party to the proceeding has a tenancy
by curtesy, or an estate for life or for years in the real estate
directed to be sold, the court must determine whether the interests
of all the parties will be better protected, or more advantageous
sale can be made of such real estate by including the sale of such
right or interest; and if the court shall so determine there may
be included in the order a direction that such right or interest be
sold; and the purchaser, his heirs and assigns, shall hold the prop-
erty free and discharged from any claim by virtue of that right.
The regulations and provisions of [article two, title one of chapter
fourteen of this act, prescribing the rules of practice] law in
relation to the right of dower, curtesy and estates for life, or for
years in actions for the partition of real estate, so far as the same
may be applicable, shall govern and control the disposition of
moneys realized on such sale which shall belong to the owner of
said right of dower, or tenant for life, or for years.

[ Code, § 2717, without change of substance. ]

§ 249. [§ 2718.] Restitution from assets subsequently discovered.
Where a decree has been made for the application of the proceeds
of real property as prescribed in this [title] article, and assets,
which should have been applied thereto, are afterward discovered ;
or, for any other reason, money or other personal property of the
decedent, which should have been applied thereto, afterward comes
to the hands of the executor, administrator, legatee or next of kin,
the heir, devisee, or other person aggrieved may maintain an action
to procure reimbursement therefrom.

§ 250. Disposition of surplus to satisfy mortgage or other lien
accruing during decedent's lifetime. Where real property, or an
interest in real property, liable to be disposed of as prescribed in
[article third of title four of chapter eighteen of] this act, is
Surrogare Courr Act 877

sold in an action or special proceeding, or otherwise, to satisfy a
mortgage or other lien thereupon, which accrued during the dece-
dent’s lifetime, the surplus money must be paid into the surro-
gate’s court having jurisdiction to issue letters testamentary or of
administration upon the estate of the decedent, in the following
cases :

1. Where eighteen months have not elapsed since the date when
letters testamentary or of administration were first issued.

2. Where a proceeding for a judicial settlement of the accounts
of such executor or administrator has been commenced within
eighteen months from the date of the issue of such letters and is
still pending.

3. Where no such letters have béen issued and two years have
not elapsed since the death of the decedent.

Money paid into the surrogate’s court, as herein provided, may
be paid out to the executor or administrator of the decedent, as
directed by an order of the surrogate’s court, to be accounted for
by him upon the judicial settlement of his accounts; or, in a special
proceeding brought for that purpose in the surrogate’s court, an
order may be entered directing distribution to the persons entitled
thereto, in case eighteen months have elapsed since letters testa-
mentary or of administration were first issued upon the estate of
the decedent, or, in case no such letters have been issued, and two
vears have elapsed since the death of the decedent.

[Code, $§ 2718, 1633 pt., without change. ]

ARTICLE 14

ACCOUNTING; JUDICIAL SETTLEMENT AND
DECREE

Section 251. [2719.] Recording instruments settling accounts in

part or in whole.

252. [[2720.] Judicial settlement where recovery has
been had in negligence action.

953. [[2721.] Filing intermediate account voluntarily or
by order.

254, [[2722.] Proceedings where ‘account is filed pur-
suant to order.
878 Report or Jornt LegistaTive ComMMiIrrEE

Section 255. [2723.] Voluntary intermediate judicial settlement

257,

258.

259.

260.

261.
262.
263.
264.
265.
266,

267,
268.
269.
270.
271.
272.

273.

274.

. P2724]

[2725.]

[2726.]
[2727]

[2728]

[2729.]
[2730.]
F2731.]
[2732.]

[2733.]
[2734]

[2735.]
[2736.]

of the account of an executor, admin-
istrator, guardian or testamentary
trustee,

Compulsory intermediate judicial settle
ment of the account of a guardian or
testamentary trustee.

Accounting by executor[, et cetera,] of
deceased executors[[, et cetera].

When surrogate’s court may require judi-
cial settlement of account.

Compulsory judicial settlement; who may
petition.

Compulsory judicial settlement; citation ;
order to account and _ proceedings
thereon.

Voluntary judicial settlement.

Voluntary judicial settlement; citation.

Proceedings on return of citation.

Affidavit to account.

Accounting for profit and loss.

Property of an estate or .trust to be
delivered upon order of the court.

Decree for payment and distribution.

When specific property may be delivered.

[.2737.] When money or property may be retained.

[2738.]
[2739.]
[2740.]
[2741]

[2742.]

Adjustment of advancements.

Payment of share of infant.

Legacy[[, et cetera,J to unknown person to
be paid into state treasury.

When legacy[[, et cetera,] to be paid into
court.

Effect of judicial settlement of account;
summary statement.

§ 251. [S 2719.] Recording instruments settling accounts in part
or in whole. There may be recorded in the surrogate’s office any
instrument settling an account in whole or in part, executed by
one or more executors, administrators, testamentary trustees, or
guardians, and one or more legatecs, devisees, distributees, cred-
itors or wards who have attained full age. Every such instrument
Surrocatse Court Act 879

to be recorded shall be acknowledged, or proved, and duly certified ;
and the record thereof, or a certified copy of such record, shall be
presumptive evidence of the contents of such instrument and its
due execution.

[Code, § 2719, without change. ]

§ 252. [§ 2720.] Judicial settlement where recovery has been
had in negligence action. Where limited letters testamentary or
of administration have been granted for the prosecution of a cause
of action, and a judgment or compromise thereof has been obtained
and the proceeds are ready to be paid over; and where such recov-
ery is not a part of the estate of the deceased but goes by special
provision of law to designated persons or classes of persons; such
executor or administrator may at any time file a petition for the
judicial settlement of his account relating to such fund, and upon
the return of a citation or upon the waiver of all the parties inter-
ested, if of full age and competent, the surrogate may take and
settle such account, and direct payment to the parties entitled
according to their respective rights and interests; and upon filing
receipts for such payments the party paving the money and such
executor or administrator shall be discharged from all further
liability as to such cause of action and such fund. Where such
recovery has been had and the amount thereof paid to the executor
or administrator, he may in like manner have a judicial settlement
of his account relating to such fund, at any time, and a decree
made discharging him from further liability concerning the same.

[Code, § 2720, without change. ]

§ 253. [§ 2721.] Filing intermediate account voluntarily or by
order. An executor, administrator, guardian or testamentary
trustee may at any time voluntarily file in the surrogate’s office
an intermediate account, and the vouchers in support of the same.
He may be required to file such account at any time, in the
discretion of the surrogate, by an order made upon the petition
of any person interested, or by direction of the surrogate. He
may be required to attend and be examined under oath touching
his receipts and disbursements or touching any other matter relat-
ing to his administration of the estate, or fund, and in the case
of an executor or administrator as to any act done by him under
color of his letters, or after decedent’s death and before letters
880 Report or Joint Leqistative CoMMITTEE

were issued, or touching any personal property owned or held by
decedent at the time of his death.

~ [Code, § 2721, without change. ]

§ 254. [§ 2722.] Proceedings where account is filed pursuant
to order. On the return of the order, where one is made as
prescribed in the foregoing section of this article, if the respondent
fails either to file his account, appear, or to show good cause to
the contrary, or to present in a proper case, a petition as prescribed
an section [2729,] two hundred and sixty-one, an order must be
made, directing him to account within such a time, and in such a
manner as the surrogate prescribes, and to attend, from time to
time, before the surrogate, for that purpose. If it appears that
the account can be then judicially settled a supplemental citation
may be issued directed to the persons who must be cited on a
petition for a judicial settlement of his account. The pendency
of a proceeding against the respondent to compel him to account
does not preclude him from presenting a petition as prescribed in
section [2729.] two hundred and sixty-one. If such petition is
presented at or before the return day of the order, the citation
issued thereon need not be directed to petitioner in the special
proceeding pending against him and the two proceedings must be
consolidated. When such account is filed in connection with a
proceeding then pending any party may contest the account as to
any matter affecting his interest, and the decree or other deter-
mination made shall go to the extent only of determining the
question or questions necessary to be decided in order to grant or
deny the relief asked for in the special proceeding in which the
account was ordered to be filed. Where the accounting is made a
judicial settlement by the issuing of a supplemental citation or
the filing of a petition as above provided, the same proceedings
shall be had as on a judicial settlement.

[ Code, § 2722, without change. |

§ 255. [§ 2723.] Voluntary intermediate judicial settlement of
the account of an executor, administrator, guardian or testamentary
trustee. An executor, administrator, guardian or testamentary
trustee may, at any time after one year has expired since letters
were issued to him, or he was appointed and qualified, and not
oftener than annually thereafter, file in the surrogate’s court having
Surrogate Courr Act 881

jurisdiction an intermediate account and a petition for its judicial
settlement.

If the surrogate entertain such application, a citation shall issue
to all persons who would be required to be cited upon a voluntary
final judicial settlement of such account, and the same ‘proceedings
shall be had and with like effect, so far as the settlement of such
account is concerned, as though such proceeding were a final
judicial settlement.

[Code, § 2723, without change. ]

§ 256. [S$ 2724.] Compulsory intermediate judicial settlement
of the account of a guardian or testamentary trustee. The surrogate
of his own motion, or upon the petition of any person interested
in the fund held by a guardian or testamentary trustee, may by
order direct such guardian or testamentary trustee to make and
settle an intermediate account of his proceedings. The proceedings
upon the return of the order shall be the same as though the
respondent had filed his petition for a voluntary intermediate judi-
cial settlement as provided in the preceding section [2723 of this
title, J and the decree entered shall have the same force and effect
as if made in such proceeding.

[Code, § 2724, without change. ]

§ 257. [S$ 2725.] Accounting by executor[, et cetera,] of de-
ceased executors, et cetera]. Where an executor, administrator,
guardian or testamentary trustee dies, the surrogate’s court has the
same jurisdiction, upon the petition of any person who would be
required to be cited upon a voluntary judicial settlement of his
account to compel the executor or administrator of the decedent
to account, which it would have against the decedent if his letters
had been revoked, or he had been removed, by a surrogate’s decree.
An executor or administrator of a deceased executor, administrator,
guardian, or testamentary trustee may voluntarily account for
the acts and doings of the decedent, and for the trust property
which had come into his possession or into the possession of the
decedent. On the death of any executor, administrator, guardian
or testamentary trustee while an accounting by or against him, as
such, is pending before a surrogate’s court, such court may con-
tinue said proceeding where his executor, administrator or succes-
sor has voluntarily made himself a party thereto, or has been
brought in by a citation to show cause why he should not be made
882 Report or Jornr Lecisuative ComMirreE

a party, and proceed with such accounting and determine all ques-
tions and grant any relief that the surrogate would have power to
determine or grant in case such decedent had not died or in a case
where the executor or administrator of said last mentioned dece-
dent had voluntarily petitioned for an accounting as provided for
in this section. On a petition filed either by or against an executor
or administrator of a deceased executor, administrator, guardian
or testamentary trustee, the successor of such decedent, his executor
or administrator, and all persons who would be necessary parties
to a proceeding commenced by such decedent for a judicial settle
“ment of his accounts shall be brought in. If upon such accounting,
the surrogate finds that there can be a distribution, in whole or in
part, to the parties entitled thereto, he may make a decree accord-
ingly, and he may also therein direct payment and delivery, by
the accounting party, upon such terms and security as may be
proper, of the balance, if any, of said estate or fund. For the
purpose of such payment and distribution the accounting party
shall have all the powers and duties of the deceased representative,
trustee or guardian.

[Code, § 2725, without change. |

§ 258. [§ 2726.] When surrogate’s court may require judicial
settlement of account. In either of the following cases, the surro-
gate’s court may, from time to time, compel a judicial settlement
of the account of an executor, administrator, guardian or trustee:

1. [Against] In the case of an executor or administrator,

a. Where fifteen days have elapsed after the time in which to
present claims has expired, or one year has expired since letters
were issued to him.

b. Where letters issued to him have been revoked, or, for any
other reason, his powers have ceased.

ce. Where the administrator is a temporary administrator.

d. Where he has sold, or otherwise disposed of, anv of the
decedent’s real property, or the rents, profits or proceeds thereof.
pursuant to a power contained in the decedent’s will, or an order
of the surrogate’s court, and fifteen davs have elapsed after the
time in which to present claims has expired, or one year has elapsed
since letters were issued to him.

2. In the case of a vaardian,

a. Where the ward has attained the age of twenty-one years. or
has died.
Surrogate Courr Act 883

b. Where the guardian is a guardian in socage, or the guardian
of the infant’s person only.

c. Where letters issued to him have been revoked, or his powers
have ceased.

3. In the case of a trustee,

a. Where the trustee has been removed, or for any other reason
his powers have ceased.

b. Where the trusts, or one or more distinct and separate trusts.
created by the terms of the will, have been executed, or are ready
to be executed; so that the persons beneficially interested are, by
the terms of the will, or by operation of law, entitled to receive anv
money or other personal property from the trustee.

[Code, § 2726, without change. ]

§ 259. [§ 2727.] Compulsory judicial settlement; who may
petition. A petition praying for the judicial settlement of the
accounts of a person described in the last section, and that such
person may be cited to show cause why he should not render and
settle such account may be presented in a case prescribed in the
last section as follows:

1. [Against] In the case of an executor or administratcr,

a. By a creditor or a person interested in the estate or fund,

b. By or on behalf of a child born after the making of the will,
when interested in the estate.

2. [Against] In the case of a guardian,

a. By the ward after he has become twenty-one years oi age,

b. By the executor or administrator of a ward who has died,

e. By the ward or a duly appointed guardian where a person
has been acting as a guardian in socage.

3. Against a testamentary trustee,

a. By any person beneficially interested in the execution of any
of the trusts, or by any person on behalf of an infant so interested,
unless his account has been judicially settled within one year
preceding the application.

In any case,

a. By a surety on the official bond of the person required to
aecount, or the legal representative of such a surety.

b. By the successor, or by the remaining executor, adminis-
trator, guardian or trustee, where a representative, guardian or
testamentary trustee has been removed or his letters revoked.

ec. By the attorney-general of the state where any of the prop-
884 Report or Joint LecisuaTive CoMMITTeE

erty or fund may belong to the state of New York, by reason of
the death of any testator, intestate, or person interested without
leaving known heirs-at-law or next of kin, as the case may be, or
such heirs-at-law or next of kin are unknown.

[Code, § 2727, without change. ]

§ 260. [§ 2728.] Compulsory judicial settlement; citation; order
to account and proceedings thereon. On the presentation of a
petition, as prescribed in the last section, a citation must be issued
accordingly, and on the return of the citation if the person cited
fails either to appear, or to file his account, or to show good cause
to the contrary, or to present in a proper case, a petition as pre
scribed in the next section, an order must be made, directing him
to account within such a time, and in such a manner as the surro-
gate prescribes, and to attend, from time to time, before the surro-
gate, for that purpose. He is bound by such an order, without
service thereof. If it appears that there is a surplus, distributable
to creditors or persons interested, the surrogate may, at any time,
issue a supplemental citation, directed to the persons who must be
cited, on the petition for a judicial settlement of his account.
The pendency of a proceeding against an executor, administrator,
guardian or trustee to compel him to account does not preclude
him from presenting a petition as prescribed in the next section.
If such petition be presented at or before the return of a citation
in and as prescribed in either of the foregoing sections of this
[title] article, the citation issued thereon need not be directed to
petitioner in the special proceeding pending, and the two proceed-
ings must be e nsolidated. ‘

[Code, § 2728, without change. ]

§ 261. [§ 2729.] Voluntary judicial settlement. In either of the
following cases an administrator, executor, guardian or testamen-
tary trustee may present to the surrogate’s court his account and
a petition praying that his account may be judicially settled and
that all necessary and proper parties may be cited to show cause
why such settlement should not be had:

1. By an exeentor or administrator,

a. Where the time for presentation of claims as fixed by a notice
duly published has expired; or one year has expired since letters
were issued to him or his predecessor in office.

b. Where letters issued to the petitioner have been revoked.
Surrogate Courr Act 885

e. The surrogate may, in his discretion, at any time within
six months after letters were first issued upon an estate, entertain
an application by an executor or administrator for the judicial
settlement of his account, where it appears from the petition or
account that a mortgage, lease or sale of the decedent’s real prop-
erty will be necessary for any of the purposes specified in section
[2703] two hundred and thirty-four of this act, and in a proceed-
ing so commenced the citation must be directed generally to all
unknown creditors of the deceased as well as to those known.

2. By a guardian,

a. Where a petition for a compulsory judicial settlement of his
accounts may be presented by any other person.

b. Where he has properly used and expended all of the estate of
the infant, and the circumstances are such that, in the discretion
of the surrogate, it is proper that such guardian should be dis-
charged.

3. By a testamentary trustee.

a. Where one or more distinct and separate trusts created bv
the will, have been, or are ready to be, fully executed.

[Code, § 2729, without change. ]

§ 262. [§ 2730.] Voluntary judicial settlement; citation. Upon
a voluntary judicial settlement of the account of an executor,
administrator, guardian or testamentary trustee there must be
cited:

1. All creditors or persons claiming to be creditors of the dece-
dent, except such as by vouchers filed with the account appear to
have been paid.

2. The sureties on his official bond, if any.

3. All co-executors, administrators, guardians or trustees who
do not join in the petition.

4, The successor, if a successor has been appointed, in a case
where the petitioner’s letters have been revoked, or he has been
removed, and if no successor has been appointed, all the persons
interested who are required to be cited by this section.

5. The attornev-general in all cases where the decedent, ward or
beneficiary died intestate as to any part of the estate or fund leav-
ing no known heir-at-law or next of kin.

6. The widow or husband, if any, and all the heirs-at-law where
the decedent, ward or beneficiary died intestate as to any real prop-
erty, and all his next of kin where he died intestate as to any
personal property.
886 Report or Joint LEGIsLtaATIVE COMMITTEE

7. All devisees, all trustees of any trust created by the will, and
all legatees, except such as by voucher and release acknowledged,
or proved, and duly certified and filed, appear to have been fully
paid.

8. In the case of a guardian, there shall also be cited all persons
who might have presented a petition for a compulsory settlement.

9. In the case of a trustee there shall also be cited all persons
who are entitled, absolutely or contingently, by the terms of the
will or by operation of law, to share in the fund, or in the proceeds
of property held by the petitioner as a part of his trust.

Where any person required to be cited has died, his executor
or administrator shall be cited, and if no legal representative has
been appointed, the husband or widow and all the heirs-at-law or
next of kin, or both, of such deceased person, who are interested.

[Code, § 2730, without change. ]

§ 263. [§ 27381.] Proceedings on return of citation. On the
return of a citation, issued as prescribed in the last section, the
surrogate must take the account, and hear the allegations and
proofs of the parties, respecting the same and make such order or
decree as justice requires. The executor, administrator, guardian
or trustee may be examined under oath by any party to the pro-
ceeding as to any matter relating to his administration of the estate
or fund. If any party interested shall demand in writing that a
voucher be produced and filed for any payment alleged by the
account to have been made, the accounting party shall produce
and file such voucher or make satisfactory proof of such payment.

[Code, § 2731, without change. ]

§ 264. [§ 2732.] Affidavit to account. To each account filed in
the surrogate’s court, as prescribed in this article, must be ap-
pended the affidavit of the accounting party, to the effect that the
account contains, according to the best of his knowledge and belief,
a full and true statement of all his receipts and disbursements
on account of the estate or fund, and of all money and other prop-
erty belonging to the estate or fund, which have come to his
hands, or been received by any other person, by his order or au-
thority, for his use, and that he does not know of any error or
omission in the account, to the prejudice of any creditor of, or
person interested in, the estate or fund.

[Code, § 2732, without change. ]
Surrogates Court Act 887

§ 265. [§ 2733.] Accounting for profit and loss. No profit shall
be made by an executor, administrator, guardian or testamentary
trustee by the increase, nor shall he sustain any loss by the decrease
or loss, without his fault, of any part of the estate or fund; but he
shall account for such increase, and be allowed for such decrease or
loss on the settlement of his accounts.

[Code, § 2733, without change. ]

§ 266. [§ 2734.] Property of an estate or trust to be delivered
upon order of the court. The surrogate’s court has jurisdiction
to compel the executor, administrator, guardian or trustee, or
successor of any deceased executor, administrator, trustee or
guardian at any time to deliver over any property of the estate or
trust which has come to his possession or is under his control, and
if the same is delivered over after a decree, the court must allow
such credit upon the decree as justice requires.

The said court has also jurisdiction when an executor, adminis-
trator, trustee or guardian has died, absconded, been removed, or
become insane to direct the person so removed, or any person or
corporation having possession or control of any property belonging
to such estate or fund, to deliver the same to the court or to a
successor duly appointed ; or as directed by a decree made pursuant
to section [2725] two hundred and fifty-seven of this [chapter.]
act.

[Code, § 2734, without change. ]

§ 267. cs 2735.) Decree for payment and distribution. Where
an account is judicially settled, as prescribed in this article, and
any part of the estate or fund remains and is ready to be distrib-
uted, the decree must direct the payment and distribution thereof
to the persons so entitled, according to their respective rights. It
may also award to a surviving husband, wife, or child, the same
relief as to set off of exempt property which may be awarded in
his or her favor, on a petition presented as prescribed in section

[2671] two hundred and one of this [chapter.] act.
[Code, § 2735, without change. ]
§ 268. [§ 2736.] When specific property may be delivered.

In either of the following cases, the decree may direct the delivery
of an unsold chattel, or the assignment of an uncollected demand,
888 Report or Joint Leaistative ComMITTEeE

or any other personal property, to a party or parties entitled to
payment or distribution, in lieu of the money value of the
property:

1. Where all the parties interested manifest their consent
thereto by a writing filed in the surrogate’s office.

2. Where any legatee or distributee files a consent to accept as
payment in whole or in part any specified personal property at a
value to be ascertained by appraisement.

3. Where it appears that a sale thereof, for the purpose of pay-
ment or distribution, would cause a loss to any infant or incom-
petent legatee or distributee, and the value thereof has been fixed
by appraisement.

The value must be ascertained, if the consent does not fix it, by
an appraisement under oath, made by one or more persons
appointed by the surrogate for the purpose.

[Code, § 2736, without change. ]

§ 269. [§ 2737.] When money or property may be retained.
Where an admitted debt of the decedent is not yet due, and the
ereditor will not accept present payment, with a rebate of interest ;
or when a debt not yet due has been disputed or rejected; or
where an action is pending between the executor or administrator,
and a person claiming to be a creditor of the decedent ; or where on
the judicial settlement of the account of a testamentary trustee a
controversy respecting the right of a party to share in the fund,
or other personal property held by the trustee, has not been deter-
mined; the decree must direct that a sum sufficient to satisfv the
claim, or the proportion to which it is entitled, together with the
probable amount of the interest and costs, or that any personal
property the right to which is in controversy, be retained in the
hands of the accounting party; or be deposited in a safe bank, or
trust company, subject to the order of the surrogate’s court; or be
paid into the surrogate’s court, for the purpose of being applied to
the payment of the claim, or to the satisfaction of any judgment
when it is due, recovered, or settled; and that so much thereof, as
is not needed for that purpose, be afterwards distributed accord-
ing to law.

[Code, § 2737, without change. ]

§ 270. [S$ 2738.] Adjustment of advancements. Where there is
a surplus of personal property to be distributed, and the advance
Surrogate Courr Act 889

ment as provided in section ninety-nine of the decedent estate law,
consisted of personal property, or where a deficiency in the adjust-
ment of an advancement of real property is chargeable on personal
property, the decree for distribution, in the surrogate’s court, must
adjust all the advancements which have not been previously
adjusted by the judgment of a court of competent jurisdiction.
For that purpose, if any person to be affected by the decree, is not
a party to the proceeding, the surrogate must cause him to be
brought in by a supplemental citation.

[Code, § 2738, without change. ]

§ 271. [§ 2739.] Payment of share of infant. When a legacy or
distributive share is payable to an infant, the decree shall direct
that it be paid to his guardian, upon his filing sufficient security,
unless the legacy does not exceed fifty dollars, or a distributive
share does not exceed one hundred and fifty dollars, in which cases
the decree may order it to be paid to his father, or to his mother,
or to some competent person with whom the infant resides, or who
has some interest in his welfare, for the use and benefit of such
infant. If there be no guardian, the decree shall provide that the
legacy or distributive share not disposed of in the manner afore-
said, shall be paid into or deposited with the surrogate’s court.

[Code, § 2739, without change. ]

§ 272. [§ 2740.] Legacyf, etc.,] to unknown person to be paid
into state treasury. Where the person entitled to a legacy or
distributive share is unknown, the decree must direct the executor,
administrator, guardian or testamentary trustee to pay the amount
thereof into the treasury of the state, for the benefit of the person
or persons who may thereafter appear to be entitled thereto. The
surrogate’s court, or the supreme court, upon the petition of a per-
son claiming to be so entitled, and upon at least fourteen days’
notice to the attorney-general, accompanied with a copy of the
petition, may by a reference, or by directing the trial of an issue
by a jury, or otherwise, ascertain the rights of the person inter-
ested, and grant an order directing the payment of any money,
which appears to be due to the claimant, but without interest, and
deducting all expenses incurred by the state with respect thereto.
The comptroller, upon the production of a certified copy of the
order, must draw his warrant upon the treasury, for the amount
890 Report or Jornt LeaisnativeE ComMirreE

therein directed to be paid; which must be paid by the state
treasurer, to the person entitled thereto.

[Code, § 2740, without change. ]

§ 273. [§ 2741.] When legacy[, etc.,] to be paid into court.
Where it appears that the whereabouts of any legatee or distributee
is unknown, the decree must direct the executor, administrator or
testamentary trustee to pay into surrogate’s court a legacy or dis-
tributive share, which is not paid to the person entitled thereto,
at the expiration of six months from the time when the decree is
made, or when the legacy or distributive share is payable by the
terms of the decree; or where, at the expiration of six months
after the making of the decree, it is shown to the court that pay-
ment of a legacy or distributive share can not be made to the
person entitled thereto, an order may be made directing the pay-
ment of the same into court. The money, so paid into court can
be paid out only by the special direction of the surrogate; or pur-
suant to the judgment of a court of competent jurisdiction. The
state comptroller may institute any necessary proceeding before the
surrogate’s court to compel the deposit of such moneys in court.
which have not been paid over or deposited after the expiration of
six months.

[Code, § 2741, without change. ]

§ 274. [§ 2742] Effect of judicial settlement of account;
summary statement. A judicial settlement of the account of an
executor, administrator, guardian or testamentary trustee, either
by the decree of the surrogate’s court, or upon an appeal therefrom,
is conclusive evidence against all the parties of whom jurisdiction
was obtained and all persons deriving title from any of them at any
time, as to all matters embraced in the account and decree.

Each decree, whereby an account is judicially settled, must con-
tain, in the body thereof, a summary of the account as settled; or
must refer to such a summary, which must be reeorded in the same
book, and is deemed a part of the decree.

[Code, § 2742, without change. ]
Surrogate Courr Act 891

ARTICLE 15

COSTS AND FEES; COMMISSIONS AND COMPENSATION

OF EXECUTORS} ADMINISTRATORS, GUARDIANS
AND TRUSTEES

Section 275. [2743.] Costs in special proceedings.
276. [2744.] Costs; how made payable.
277. [2745.] Costs on order.
278. [2746.] When surrogate to fix amount of costs.
279. [2747.] Additional allowance in settling account.
280. [2748.] Compensation of special guardian.
281. [2749.] Allowance upon sale of real property.
282. [2750.] Security for costs.
283. [2751.] Costs of appeal.
284. [2752.] Fees of appraiser, referee, juror and
witness.
285. [2753.] Commissions of executor, administrator,
guardian or testamentary trustee.

§ 275. [Ss 2743.] Costs in special proceedings. Costs shall be
awarded in special proceedings in surrogate’s court solely in ac-
cordance with the following sections, and shall include all disburse
ments of the party to whom they are awarded, which might be
taxed in the supreme court. The sum allowed for costs must be
fixed by the surrogate, and inserted in the decree or order, and
must be awarded to the party.

[Code, § 2748, without change. ]

§ 276. [§ 2744.] Costs; how made payable. Except where
special provision is otherwise made by law, costs, awarded by a
decree or order.may be made payable by the party personally, or
out of the estate, or fund, or out of the share or interest therein
of any person, or from both, in such proportion as the surrogate
may direct, and justice requires.

[Code, § 2744, without change. ]

§ 277. [8 2745.] Costs on order. The costs upon granting or
refusing to grant an order, are in the discretion of the surrogate,
892. Revorr or Jornr Leeis_ative ComMirrer

and when allowed may be collected in the same manner as costs
allowed upon granting or refusing to grant an order in the supreme
court.

[Code, § 2745, without change. ]
Y

§ 278. [§ 2746.]} When surrogate to fix amount of costs. The
surrogate, upon rendering a decree, may, in his discretion, fix
such a sum as he deems reasonable, to be allowed as costs, to the
petitioner, and to any other party who has succeeded in a contest,
or whose attorney, in the absence of a contest, has rendered serv-
ices in the proceeding of substantial benefit to him, or to the
estate or fund, not exceeding, where there has not been a contest,
twenty-five dollars, or where there has been a contest, seventy dol-
lars; and, in addition thereto, where a trial or hearing upon the
merits necessarily occupies more than one day, ten dollars for each
additional day, necessarily occupied in the trial or hearing and
in preparing therefor, and where a motion for a new trial is made,
if it is granted, twenty-five dollars; if it is denied, fifteen dollars.

When the decree is made upon a contested application for pro-
bate of a will, costs, payable out of the estate or otherwise, shall
not be awarded to an unsuccessful contestant of the will, unless
he is a special guardian for an infant or incompetent, appointed
by the surrogate, or is named as an executor in a paper propounded
by him in good faith as the last will of the decedent; but where a
person named as the executor in a will propounds the will for pro-
bate, such person so named as executor may, whether successful or
not, in the discretion of the surrogate, be awarded costs and all
necessary disbursements made by him and all expenses incurred in
the attempt to sustain the will. The surrogate may order a copy
of the stenographer’s minutes to be furnished to the contestant’s
counsel, and charge the expense thereof to the estate, if he shall
be satisfied that the contest is made in good faith.

[Code, § 2746, without change. ]

§ 279. [§ 2747.] Additional allowance in settling account.
Tn addition to the sums specified in the last section, the surrogate
may, in his discretion, allow to an executor, administrator, guard-
ian, or testamentary trustee, upon a judicial settlement of his
account, or on an intermediate aecounting required by the surro-
gate, such a sum, as the surrogate deems reasonable, for his counsel
Surrocate Courr Act 898

fees and other expenses, not exceeding ten dollars for each day
necessarily occupied in preparing his account for settlement and
in drawing, entering and executing the decree.

[Code, § 2747, without change. |

§ 280. [§ 2748.] Compensation of special guardian. A special
guardian for an infant or incompetent shall receive a reasonable
compensation for his services to be fixed by the surrogate, payable
from the estate or fund, or from the interest of the ward therein,
or from both in such proportion as the surrogate may direct.

[Code, § 2748, without change.

§ 281. [[§ 2749.] Allowance upon sale of real property. Upon
the disposition of real property of a decedent, as prescribed in this
[chapter,] act, the executor or administrator disposing of the
property, must be allowed by the surrogate out of the proceeds of
the sale brought into court, his commissions and expenses; and
such a further sum as the surrogate thinks reasonable, for the
necessary services of his attorney and counsel therein.

[Code, § 2749, without change. ]

§ 282. [§ 2750.] Security for costs. In any proceeding where
an issue is raised by answer or objection by or on behalf of a non-
resident of the state of New York against the proponent of a will,
or an executor, administrator or trustee, or where the probate of a
will has been tried before a jury which has disagreed, such pro-
ponent, executor, administrator or trustee shall be entitled in the
discretion of the surrogate to have the person or persons raising
such issue give security for costs.

[Code, § 2750, without change. ]

§ 283. [§ 2751.] Costs of appeal. The appellate court may
award to the successful party the costs of the appeal; or it may
direct that they abide the event of a new trial; or of the subse
quent proceedings in the surrogate’s court. In either case, the costs
may be made payable out of the estate or fund, or personally by the
unsuccessful party, as directed by the appellate court; or, if such
direction is not given, as directed by the surrogate.
894 Revorr or Jorvy Leaisnative ComMrrrer

The costs of an appeal, when they are awarded in a surrogate’s
court, are the same as if they were awarded in the supreme court.

[Code, § 2751, without change. ]

§ 284. [§ 2752.] Fees of appraiser, referee, juror and witness.
An appraiser is entitled, in addition to his actual expenses, to a
sum, to be fixed by the surrogate, not exceeding five dollars for each
day actually and necessarily occupied by him in making the
appraisal or inventory. The number of days’ services and the
expenses, if any, must be proved by the affidavit of the appraiser ;
and the sums payable therefor taxed by the surrogate, and paid
by the executor or administrator.

A referee, juror, or witness is entitled to the same fees for his
services and for traveling, as are allowed for like services in the
supreme court.

[Code, § 2752, without change. ]

§ 285. [§ 2753.] Commissions of executor, administrator, guard-
ian or testamentary trustee. On the settlement of the account of
any executor, administrator, guardian or testamentary trustee, the
surrogate must allow to him his just, reasonable and necessary
expenses actually paid by him, and if he be an attorney and coun-
selor-at-law of this state, and shall have rendered legal services in
connection with his official duties, such compensation for such
legal services as shall appear to the surrogate to be just and reason-
able; and in addition thereto the surrogate must allow to such
executor, administrator, guardian or testamentary trustee for his
services in such official capacity, and if there be more than one,
apportion among them according to the services rendered by them
respectively :

For receiving and paying out all sums of monev not exceeding
one thousand dollars, at the rate of five per centum.

For receiving and paying out any additional sums not amount-
ing to more than ten thousand dollars, at the rate of two and one
half per centum.

For all sums above eleven thousand dollars, at the rate of one
per centum.

The value of any real or personal property, and the increment
thereof, received, distributed or delivered, shall be considered as
money in making computation of commissions. But this shall not
apply in case of a specific legacy or devise.
Surrogate Courr Acr 895

If an executor acting as trustee, or if a trustee or guardian, is
required to receive income and pay over the same, and such execu-
tor, trustee or guardian pays over said income and renders an
annual account to the beneficiary of all his receipts and disburse-
ments on account thereof, he shall be allowed, and may retain,
the same commission on the amount so accounted for as he would:
be allowed upon principal on a judicial settlement; if he does
not render such annual account, he shall be allowed, upon his
judicial settlement, his commissions upon the total income from
any money or property then payable to such beneficiary.

If the gross value of the principal of the estate or fund
accounted for amounts to one hundred thousand dollars or more,
each executor, administrator, guardian or testamentary trustee is
entitled to the full compensation on principal and income allowed
herein to a sole executor, administrator, guardian or testamentary
trustee, unless there are more than three, in which case the com-
pensation to which three would be entitled must be apportioned
among them according to the services rendered by them, respec-
tively. Where the will provides a specific compensation to an
executor, administrator, guardian or testamentary trustee, he is
not entitled to any allowance for his services, unless by a written
instrument filed with the surrogate, within four months from the
date of his letters, or in the case of a testamentary trustee or
guardian, from the date of his filing his oath, he renounces the
specific compensation. Where successive or different letters are
issued to the same person on the estate of the same decedent,
including a case where letters testamentary or letters of general
administration, are issued to a person who has been previously
appointed a temporary administrator, he is entitled to compensa-
tion in one capacity only, at his election, except that where he has
received compensation in one capacity he is entitled to the excess,
if anv, of the compensation allowed by law, above the sum which he
has already received in the other capacity.

[Code, § 2753, without change. ]
896 Report or Joint Leaistative CoMMITTEE

Section 286.

287.
288.

289.
290.
291.
292.

293.
294,

295.
296.
297.
298.
299.
300.
301.
302.
8038.
304.
305.

306.
307.

308.

ARTICLE 16
APPEALS

[2754.] Appeal; when and to what court it may be
taken.
[2755.] Who must be made parties.
[1295.] Parties to appeal; how designated; title of
cause.
[1296.] When a person entitled to become a party
may appeal.
[1297.] Appeal when adverse party has died.
[2756.] Time to appeal; how taken.
[2757.] Appeal may be on the law or the facts;
case to be made; reversal.
[1301.] Intermediate order; how reviewed.
[1302.} Proceedings, if attorney or party not
found.
[1303.] Defects in proceedings may be supplied.
[2759.] Security to perfect appeal.
[2760.]) Where decree is for money or delivery of
property[[, et cetera].
[2761.] Security to stay proceedings in case of
commitment.
[2762.] Amount and requisites of undertaking;
action thereon.
[1305.] Security may be waived.
[1306.] Deposit, in heu of undertaking.
[1307.] Undertaking must be filed.
[1808.] New undertaking to be given, when sure
ties are insolventf, et cetera].
[1309.] Action upon undertaking; when not to be

3?
brought.
[1298.] Proceedings, when party dies pending
appeal.

[1299.] Order of substitution,

[2763.] Power of appellate court; further testi-
mony.

[2764.] Appeal; proceedings thereupon.
Surrogate Courr Act 897

§ 286. [S§ 2754.] Appeal; when and to what court it may
be taken. An appeal to the appellate division of the supreme
court may be taken from a decree of a surrogate’s court, or from
an order affecting a substantial right, made by a surrogate, or by
a surrogate’s court in a special proceeding, by any party aggrieved
thereby, except where the decree or order was rendered or made
upon his default in appearing.

[Code, § 2754, without change. ]

§ 287. [§ 2755. Who must be made parties. Each party who
has appeared in the special proceeding in the surrogate’s court,
must be made a party to the appeal. A person not a party, may
be brought in by an order of the appellate court, made after the
appeal is taken, in such manner as the order may preseribe.

[Code, § 2755, without change. ]

§ 288. [§ 1295.] Parties to appeal; how designated; title of
cause. The party or person appealing is designated as the appel-
lant, and the adverse party as the respondent. After an appeal is
taken to another court, the name of the appellate court must be
substituted, for that of the court below, in the title of the [action
or special] proceeding, and in any case, the name of the county,
if it is mentioned, may be omitted; otherwise the title shall not
be changed, in consequence of the appeal.

[Code, § 1295, without change except to adapt it to surrogate’s
court practice; made applicable by Code, § 2758.] .

§ 289. [§ 1296.] When a person entitled to become a ‘party may
appeal. A person aggrieved, who is not a party, but is entitled
by law to be substituted, in place of party; or who has acquired,
since the making of the order or decree, [or the rendering of the
judgment appealed from,] an interest, which would have entitled
him to be so substituted, if it had been previously acquired, may
also appeal,.as prescribed in this [chapter] artzcle, for an appeal
by a party. But the appeal cannot be heard, until he has been sub-
stituted in place of the party; and if he unreasonably neglects to
procure an order of substitution, the appeal may be dismissed,
upon motion of the respondent.

[Code, § 1296, without change; except to adapt it to surrogate’s
court practice; made applicable by Code, § 2758.]

29
898 Report or Joint LecisuativeE ComMirren

_§ 290. [§ 1297.] Appeal when adverse party has died. Where
the adverse party has died, since the making of the order or the
entry of the decree, or the rendering of the judgment appealed
from, or where the [judgment] decree appealed from was ren-
dered, after his death, in a case prescribed by law, an appeal may
be taken, as if he was living; but it cannot be heard, until the
heir, devisee, executor, or administrator, as the case requires, has
been substituted as the respondent. In such a case, an undertaking
required to perfect the appeal, or to stay the execution of the
decree [judgment] or order appealed from, must recite the fact
of thé adverse party’s death; and the undertaking enures, after
substitution, to the benefit of the person substituted.

[Code, § 1297, without change, except to adapt it to surrogate’s
court practice; made applicable by Code, § 2758.]

§ 291. [[§ 2756.] Time to appeal; how taken. An appeal must
be taken within thirty days after the service, upon the appellant,
or upon the attorney, if any, who appeared for him inthe surro
gate’s court, of a copy of the decree, or order from which the
appeal is.taken, and a written notice of the entry thereof, except
that the party entering such decree or order shall not be entitled
to further notice to limit his time to appeal.

An appeal must be taken by the service upon each party to the
appeal, other than the appellant, and upon the surrogate, or the
clerk of the surrogate’s court, of a written notice, referring to the
decree or order appealed from, and stating that the appellant
appeals from the same, or from a specified part thereof. Where a
party to the special proceeding in the court below appeared in
person, the notice of appeal must be personally served upon him;
where he appeared by an attorney, it must be served personally ;
either upon him or upon his attorney.

“ [Code, § 2756, without change.] -

ong 292. [S 2757.J Appeal may be on the law or the facts; case to
be made; reversal. The appeal may be taken upon questions of
law, or upon the facts, or upon both. If it is taken from a decree
rendered upon the trial by the surrogate, or by the surrogate and a
jury, of an issue of fact, it must be heard upon a case, to be made
and.settled by the surrogate, as prescribed by law, for the making
and settling of a case upon an appeal in an action.
Surrogate Courr Acr 899

Such appeal brings up for review, by each court to which the
appeal is carried, each decision, to which an exception is duly
taken by the appellant, as prescribed in section [2542.] seventy-
two. But such a decree or order shall not be reversed for an error
in admitting or rejecting evidence, unless it appears to the appel-
late court that the exceptant was necessarily prejudiced thereby.

[Code, § 2757, without change. ]

§ 293, [Ss 1301.J Intermediate order; how reviewed. Upon an
appeal from a decree the appellant may bring up for review each
intermediate order which necessarily affected the decree but he
must, in the notice of appeal, distinctly specify the intermediate
order to be reviewed.

[Substitute for Code, § 1301. The right to review an inter-
mediate order is atlirmatively stated instead of being left to infer-
ence under the present language of § 1301. Section 1301 is

expressly made applicable to surrogate’s court practice by Code,
§ 2758. ]

§ 294. [§ 1302.] Proceedings, if attorney or party not found.
If the attorney for the adverse party is dead; or if he has been
removed, and notice of the removal has been served upon the
appellant's attorney, and another attorney has not been substituted
in his place; or if, for any reason, service of a notice of appeal,
upon the proper attorney for the adverse party, cannot, with due
diligence, be made within the state, the notice of appeal may be
served upon the respondent, in the manner prescribed by law for
serving it upon an attorney. If personal service upon the respond-
ent cannot, with due diligence, be so made within the state, the
notice of appeal may be served upon him, and notice of the sub-
sequent proceedings may be given to him, as directed by a judge
of the court, in or to which the appeal is taken.

[Code, § 1302, without change; made applicable to surrogate’s
court practice by Code, § 2758. ]

§ 295. [S 1303.J Defects in proceedings may be supplied. Where
the appellant, seasonably and in good faith, serves the notice of
appeal, either upon the clerk or upon the adverse party, or his
attorney, but omits, through mistake, inadvertence, or excusable
neglect, to serve it upon the other, or to do any other act, neces-
900 Reporr or Jornr Le@isiative CoMMITTreE

sary to perfect the appeal, or to stay the execution of the [judg-
ment] decree or order appealed from; the court, in or to which
the appeal is taken, upon proof, by affidavit, of the facts, may, in
its discretion, permit the omission to be supplied, or an amend-
ment to be made, upon such terms as justice requires.

[Code, § 1303, without change, except to adapt it to surrogate’s
court practice; made applicable by Code, § 2758.]

§ 296. [§ 2759.] Security to perfect appeal. To render a notice
of appeal effectual for any purpose, except in a case specified in
the next section, or where it is specially prescribed by law, that
security is not necessary to perfect the appeal, the appellant must
give a written undertaking, with at least two sureties, to the effect
that the appellant will pay all costs and damages which may be
awarded against him upon the appeal, not exceeding two hundred
and fifty dollars.

[Code, § 2759, without change. ]

§ 297. [§ 2760.] Where decree is for money or delivery of
property[[, etc.]. In every case except one in which the letters of
an executor, administrator or guardian have been revoked, or a
trustee has been removed a notice of appeal by an executor, admin-
istrator, testamentary trustee, guardian or other person appointed
by the surrogate’s court, from a decree, directing him to pay or
distribute money, or to deposit money in a bank or trust company,
or to deliver property; or by an executor or administrator from
an order granting leave to.issue an execution against him, [as
prescribed in section 1825 of this act,J does not stay the execution
of the decree appealed from unless the appellant gives an under-
taking, with at least two sureties, in a sum therein specified, to
the effect that if the decree or order, or any part thereof, is
affirmed, or the appeal is dismissed, the appellant will pay all
costs and damages, which may be awarded against him upon the
appeal, and will pay the sum so directed to be paid or collected,
or, as the case requires will deposit or distribute the money, or
deliver the property, so direeted to be deposited, distributed, or
delivered, or the part thereof as to which the decree or order is

affirmed.
[Code, § 2760, without change. ]
Surrogate Court Act 901

§ 298. [§ 2761.] Security to stay proceedings in case of com-
mitment. An appeal from a decree or an order, directing the
commitment of an executor, administrator, testamentary trustee,
guardian, or other person appointed by the surrogate’s court, or
an attorney or counsel employed therein, for disobedience to a
direction of the surrogate, or for neglect of duty; or directing the
commitment of a person refusing to obey a subpoena, or to testify,
when required according to law; does not stay the execution of
the decree or order appealed from, unless the appellant gives an
undertaking with at least two sureties, in a sum therein specified,
to the effect that if the decree or order appealed from, or any part
thereof, is affirmed, or the appeal is dismissed, the appellant will,
within twenty days after the affirmance or dismissal, surrerider
himself in obedience to the decree or order to the custody of the
sheriff of the county wherein he was directed to be committed.

[Code, § 2761, without change. ]

§ 299. [S$ 2762.] Amount and requisites of undertaking; action
thereon. The sum specified in an undertaking, executed as pre-
scribed in either of the last two sections, must be fixed by the
surrogate, or by a judge of the appellate court, who may require
proof, by affidavit, of the value of any property, or of such other
facts as he deems proper.

An undertaking, given as prescribed in the last three sections,
must be to the people of the state; must contain the name and
residence of each of the sureties thereto; must be approved by the
surrogate or a judge of the appellate court; and must be filed in
the surrogate’s office. The surrogate may, at any time in his dis-
cretion, make an order authorizing any person aggrieved to bring
an action upon the undertaking, in his own name, or in the name
of the people. Such action may be prosecuted in the same manner,
and with the same effect as an action upon an administrator’s
bond; and the proceeds of the action must be paid or distributed
as directed by the surrogate, to or among the persons aggrieved,
to the extent of the pecuniary injuries sustained by them, and the
balance, if any, must be paid into the surrogate’s court.

[Code, § 2762, without change. ]

§ 300. [§ 1305.] Security may be waived. An undertaking,

which the appellant is required, by this article [chapter], to give,
or any other act which he is so required to do, for the security of
902 Reporr or Joint LecisuativE ComMirrEeE

the respondent, may be waived by the written consent of the
respondent.

[Code, § 1305, without change; made applicable to surrogate’s
court practice by Code, § 2758. ]

§ 301. [§ 1306.] Deposit, in lieu of undertaking. Where the
appellant is required, by this [chapter] article, to give an under-
taking, he may, in lieu thereof, deposit with the clerk, with whom
the [judgment] decree or order appealed from is entered, a sum
of money, equal to the amount for which the undertaking is re-
quired to be given. The deposit has the same effect, as filing the
undertaking; and notice that it has been made, has the same effect,
as notice of the filing and service of a copy of the undertaking.
The court, wherein the appeal is pending, may direct the mode, in
which the money shall be kept and disposed of, during the pen-
dency, or after the determination of the appeal.

[Code, § 1806, without change, adapted to surrogate’s court
practice; made applicable by Code, § 2758. ]

§ 302. [§ 1307.] Undertaking must be filed. An undertaking,
given as prescribed in this [chapter,] article must be filed with the
clerk, with whom the [judgment] decree or order appealed from is
entered, except that upon an appeal to the court of appeals the
undertaking must be filed with the clerk of the court wherein the
original judgment or order was entered.

[Code, § 1307, without change, adapted to surrogate’s court
practice; made applicable by Code, § 2758. ]

§ 303. [§ 1308.] New undertaking to be given, when sureties are
insolvent[, et cetera]. The court, in which the appeal is pending,
upon satisfactory proof, by affidavit, that since the execution of
an undertaking given as prescribed in this article [chapter], one
or more of the sureties therein have become insolvent; or that his
or their circumstances have become so precarious, that there is
reason to apprehend, that the undertaking is not sufficient for the
security of the respondent; may make an order, requiring the
appellant to file a new undertaking, and to serve a copy thereof,
as required with respect to the original undertaking. Tf the
appellant fails so to do, within twenty days after the service of a
copy of the order, or such further time as the court allows, the
Surrogate Courr Act 903

appeal must be dismissed, or the order or judgment, from which

the appeal is taken, must be executed, as if the original undertak-
ing had not been given.

[Code, § 1308, without change; made applicable to surrogate’s
court practice by Code, § 2758.]

§ 304. [§ 1309.] Action upon undertaking; when not to be
brought. An action shall not be maintained, upon an undertaking,
given upon an appeal, taken as prescribed in this article [title
third, fourth or fifth of this chapter], until ten days have expired,
since the service, upon the attorney for the appellant, and upon
the sureties on such undertaking, of a written notice of the entry
of a judgment or order, affirming the [judgment] decree or order
appealed from, or dismissing the appeal. Such service may be
made by mailing such notice in a postpaid wrapper addressed to
said surety or sureties, at the last known post-office address of such
surety or sureties. Where an appeal to the court of appeals, from
that judgment or order, is perfected, and security is given there-
upon, to stay the execution of the [judgment] decree or order
appealed from, an action shall not be maintained upon the under-
taking, given upon the preceding appeal, until after the final
determination of the appeal to the court of appeals.

[Code, § 1309, without change, except to adapt it to surrogate’s
court practice; made applicable by Code, § 2788. ]

§ 305. [§ 1298.] Proceedings, when party dies pending appeal.
Where either party to an appeal dies, before the appeal is heard,
or has heretofore died, and the appeal has not been heard, if an
order, substituting another person in his place, is not made, within
three months after his death, or, where he has heretofore died,
within three months after this section takes effect, the court, in
which the appeal is pending, may, in its discretion, make an order,
requiring all persons interested in the decedent’s estate, to show
cause before it, why the judgment or order appealed from should
not be reversed or affirmed, or the appeal dismissed, as the case
requires. The order must specify a day, when cause is to be
shown, which must be not less than six months after making the
order; and it must designate the mode of giving notice to the
persons interested. Upon the return day of the order, or at a sub-
sequent day, appointed by the court, if the proper person has
not been substituted, the court, upon proof, by affidavit, that notice
904 Report or Joint Lecistative CoMMITTEE

has been given, as required by the order, may reverse or affirm
the judgment or order appealed from, or dismiss the appeal, or
make such further order in the premises, as justice requires.

[Code, § 1298, without change; made applicable to surrogate’s
court practice by Code, § 2758.]

§ 306. [§ 1299]. Order of substitution. Where the appeal is
from one court to another, an application for an order of substitu-
tion, as prescribed by [the last three] sections two hundred and
eighty-nine, two hundred and ninety and three hundred and five
must be made to the appellate court. Where personal service of
notice of application for an order has been made, within the state,
upon the proper representative of the decedent, an order of sub-
stitution may be made, upon the application of the surviving

party.
Ew”

[Code, § 1299, without change; made applicable to surrogate’s
court practice by Code, § 2758.]

§ 307. [§ 2763.] Power of appellate court; further testimony.
Where an appeal is taken upon the facts, the appellate court has
the same power to decide the questions of fact, which the surrogate
had; and it may, in its discretion, receive further testimony or
documentary evidence, and appoint a referee.

The appellate court may reverse, affirm, or modify, the decree
or order appealed from, and each intermediate order, specified
in the notice of appeal; which it is authorized by law to review,
and as to any or all of the parties; and it may, if necessary or
proper, grant a new trial or hearing. Upon an appeal from a
determination of the surrogate, made upon an application pursuant
to subdivision six of section [2490] twenty, the appellate court
has the same power as the surrogate, and his determination must
be reviewed as if an original application were made to that court.
The decree or order appealed from may be enforced, or restitution
may be awarded, as the case requires, as prescribed [in title first
of chapter twelfth of this act,] with respect to an appeal from
a judgment.

[Code, § 2763, without change. ]

§ 308. [§ 2764] Appeal; proceedings thereupon. In the appel-
late division of the supreme court the order made upon an appeal
Surrogate Courr Act 905

from a decree or an order of a surrogate’s court must be entered
with the clerk of the appellate division, and a certified copy thereof
annexed to the papers transmitted from the court below upon which
the appeal was heard, must be transmitted to the court from
which the appeal was taken, and the court below shall enter the

judgment or order necessary to carry the determination of the
appellate division into effect.

[Code, § 2764, without change. ]

ARTICLE 17
PROBATE OF HEIRSHIP

Section 309. [2765.] Heir[[, et cetera,] may apply to establish
_heirship. .
810. [2766.] What facts to be ascertained; decree there-
upon.
311. [2767.] Decree to be recorded; effect thereof.

§ 309. [§ 2765.] Heir[,, etc. may apply to establish heirship.
Where a person, seized in fee of real property within the state,
dies intestate, or without having devised his real property, his
heirs, or any of them, or any person deriving title from or through
such heirs, or any of them, may present to the surrogate’s court
which has acquired jurisdiction of the estate, or, if no surrogate’s
court has acquired such jurisdiction, then to the surrogate’s court
of the county where the real property, or any part thereof is
situated, a petitior, describing the real property, setting forth’
the facts upon which the jurisdiction of the court depends, and
the interest or share of the petitioner, and of each other heir of
the decedent, in the real property, and praying for a decree estab-
lishing the right of inheritance thereto, and that all the heirs of
the decedent may be cited to show cause why the prayer of the
petition should not. be granted. Upon the presentation of such
a petition a citation must be issued accordingly, except in a case
where the petitioner was a party to a judicial settlement, the
decree upon which determined the rights of the parties to such
real estate.

[ Code, § 2765, without change. ]
906 Reporr or, Joryt Lecisnative CoMMIrTEE

§ 310. [§ 2766.] What facts to be ascertained; decree thereupon.
Upon the return of a citation, the surrogate’s court must hear
the allegations and proofs of the parties and determine all the
issues raised. The petitioner must establish the fact of the dece-
dent’s death; the place of his residence at the time of his death;
his intestacy, either generally, or as to the real property in ques-
tion; the heirs entitled to inherit the property in question; the
name, age, residence and relationship to the decedent, of each;
and the interest or share of each in the property. The surrogate,
when these facts are established, must make a decree, describing
the property, and declaring that the right of inheritance thereto
has been established to his satisfaction, in accordance with the
facts, which must be recited in the decree.

[ Code, § 2766, without change. |

§ 311. [§ 2767.] Decree to be recorded; effect thereof. A
certified copy of a decree, made as prescribed in the last section
may be recorded in the office of the clerk, or of the register, as
the case requires, of each county in which the real property is
situated, as prescribed by law for recording a deed, and, from
the time when such copy is so recorded, the decree, or the record
thereof, is conclusive evidence of the facts so declared to be
established thereby against all parties to such proceeding.

[Code, § 2767, without change. ]

ARTICLE 18
DEFINITIONS; APPLICATION OF OTHER LAWS

Section 812. [2768.] Definition of expressions used in this act.
318. [2769.] Application of act; confirmation of pre
vious acts.
314. [2770.] Certain provisions made applicable to pro-
ceedings in surrogates’ courts.
315, [2771.] Effect of this act on laws applicable to

certain counties.

§ 312. [S$ 2768.] Definition of expressions used in this [chapter]
act. In construing the provisions of this [chapter] act, the fol-
lowing rules must be observed, except where a contrary intent is
Surrogate Courr Act 907

expressly declared in the provision to be construed, or plainly
apparent from the context thereof :

1. The word “intestate,” signifies a person who died without
leaving a valid will; but where it is used with respect to particular
property it signifies a person who died without effectually dispos-
ing of that property by will whether he left a will or not.

2. The word “ assets,” signifies personal property applicable
to the payment of the debts of a decedent.

3. The word “ debts” includes every claim and demand, upon
which a judgment for a sum of money, or directing the payment
of money, could be recovered in an action; and the word
“ereditor ” includes every person having such a claim or demand,
any person having a claim for expense of administration, or any
person having a claim for funeral expenses.

4. The word, “will,” signifies a last. will and testament, and
ineludes all the codicils to a will.

5. The expression, ‘‘ letters of administration,” includes letters
of temporary administration. i

6. The expression, “‘ testamentary trustee,” includes every per-
son, except an executor, an administrator with the will annexed,
or a guardian, who is designated by a will, or by any competent
authority, to execute a trust created by a will; and it includes such
an executor or administrator, where he is acting in the execu-
tion of a trust created by the will, which is separable from his
functions as executor or administrator.

7. The word, “ surrogate,” where it is used in the text, or in a
bond or undertaking, given pursuant to any provision of this act
[chapter], includes every officer or court vested by law with the
functions of surrogate.

8. The expression, “ judicial settlement,” where it is applied
to an account, signifies a decree of a surrogate’s court, whereby the
account is made conclusive upon the parties to the special proceed-
ing, either for all purposes, or for certain purposes specified in
the statute; and an account thus made conclusive is said to be
“judicially settled.”

9. The expression, “ intermediate account,” denotes an account
filed in the surrogate’s office, for the purpose of disclosing the
acts of the person accounting, and the condition of the estate or
fund in his hands, and not made the subject of a judicial settle-
ment.

10. The expression, “ upon the return of a citation,” where it
is used in a provision requiring an act to be done in the surrogate’s
908 Report or Joint Leqistative Commitree

court, relates to the time and place at which the citation is return-
able, or to which the hearing is adjourned; includes a supple
mental citation, issued to bring in a party who ought to be but
has not been cited; and implies that before doing the act specified,
due proof must be made, that all persons required to be cited
have been duly cited.

1i. The expression, “ persons interested,” where it is used in
connection with an estate or fund, includes every person entitled,
either absolutely or contingently, to share in the estate or the pro-
ceeds thereof, or in the fund, as husband, wife, legatee, next of kin,
heir, devisee, assignee, grantee or otherwise except as a creditor.
Where a provision of this [chapter] act prescribes that a person
interested may object to an appointment or may apply for an
inventory, an account, or increased security, an allegation of his
interest, duly verified, suffices, although his interest is disputed ;
unless he has been excluded by a judgment, decree, or other final
determination, and no appeal therefrom is pending.

12. The term, “ next of kin,” includes all those entitled, under
the provisions of law relating to the distribution of personal prop-
erty, to share in the unbequeathed residue of the assets of a
decedent after payment of debts and expenses, other than a sur-
viving husband or wife.

18. The expression, “real property,’ includes every estate,
interest, and right, legal or equitable, in lands, tenements, or
hereditaments, except those which are determined or extinguished
by the death of a person seized or possessed thereof, or in any
manner entitled thereto, and except those which are declared
by law to be assets. The word, “inheritance,” signifies real prop-
erty as defined in this subdivision, descended as prescribed by law.
The expression, “ personal property,” signifies every kind of prop-
erty which survives a decedent, other than real property as
defined in this subdivision, and includes a right of action con-
ferred by special statutory provision upon an executor or
administrator.

14. The word “guardian” refers to a guardian of an infant’s
person or property, or both, appointed by the surrogate’s court or
the supreme court, and includes a guardian appointed by will or
deed.

15. Whenever in this act [chapter] a paper or instrument is
required to be “ acknowledged, or proved, and duly certified,” the
same shall be acknowledged or proven in the same manner as a

)

es S-we se
Surrogate Court Aor 909

deed is required to be acknowledged or proved and certified to be
recorded in that county, except that when executed within the
state of New York, no certificate of the county clerk shall be
required,

16. The word “ respondent”? when used in this [chapter] act
signifies every party to a special proceeding, except the petitioner.

17. The words “ surrogate’s court” and “surrogate”? where
they refer to jurisdiction mean the particular court or surrogate
having jurisdiction of the estate or fund.

18. Whenever in this [chapter] act a citation, order, notice or
paper is directed to be deposited in the “ post-office ” or in a “ spect-
fied post-office,’ such deposit may be made or directed to be made
in any post-oftice, branch post-office, sub-station or letter box main-
tained and exclusively controlled by the United States government.

[Code, § 2768, amended as indicated. ]

§ 313. [S$ 2769.] Application of [chapter] act; confirmation of
previous acts. Each provision of this [chapter,] act relating to
the jurisdiction of the surrogate’s court, to take the proof of a will,
and to grant letters testamentary or letters of administration or
regulating the mode of proceeding in any manner connected with
the estate of the decedent apples, unless otherwise expressly de
clared therein, whether the will was made, or the decedent died,
before or after this [chapter] act takes effect. All acts hitherto of
surrogates and officers acting as such in completing by certifying
in their own names any uncertified wills, and by signing and cer-
tifying in their own names any uncertified records of wills and of
other proofs and examinations taken in the proceedings of probate
thereof, before their predecessors in office, are hereby confirmed
and declared to be valid and in full compliance with the pre
existing statutory requirements.

[Code, § 2769, without change. ]

§ 314. [§ 2770.] Certain provisions made applicable to proceed-
ings in surrogates’ courts. Except where a contrary intent is
expressed in, or plainly implied from the context of, a provision
of law or of [this chapter, all other portions of this act, and] the
general rules of practice applicable to practice or procedure in
the supreme court [apply] applies to surrogates’ courts and tv
the proceedings therein, so far as they can be applied to the sub-
910 Report or Jormvr Leaisvative ComMirrEn

stance and subject matter of a proceeding without regard to its
form.

[Code, § 2770, without change.]

§ 815. ES 2771.) Effect of this act on laws applicable to certain
counties. Nothing in this [chapter] act shall repeal, amend or
modify any existing law specially applying to any county, which
is inconsistent with any section of this [chapter] act nor in any
manner affect any litigation, action or special proceeding pending
at the time when this act takes effect, except as hereinafter stated,
and such pending action or special proceeding shall proceed under
the practice established, the same as though not affected by this
act; provided, however, that the provisions of this [chapter] act
relating to the trial by jury of controverted questions of fact shall
apply to all such pending actions or special proceedings.

[Code, § 2771, without change. ]

ARTICLE 19
LAWS REPEALED; WHEN TO TAKE EFFECT

Section 316. Laws repealed.
317. When to take effect.

§ 316. Laws repealed. The sections of the code of civil procedure
specified in the schedule hereto annexed, and all acts amendatory
thereof or supplemental thereto in force when this act takes effect,
are hereby repealed. When two numbers in such schedule are
united by a hyphen both such numbers are included as well as all
intermediate numbers.

§ 317. When to take effect. This chapter shall take effect April

fifteenth, nineteen hundred and twenty.

ScuEpu.e or Laws Repeaen.

Code of Civil Procedure, §§ 1822, 2472-2664, 2664-a, 2665-2771,
JUSTICE COURT ACT

(911)
JUSTICE COURT ACT

 

AN ACT in relation to Justices of the peace and the practice and

procedure in justices’ courts,

The People of the State of New York, represented in Senate
and Assembly, do enact as follows:

Article

18.
19.
20.
21.

JUSTICE COURT ACT

Jurisdiction and general powers. (§§ 1-24.)

. Parties to action. (§§ 30-48.)

Commencement of action. (§§ 55-70.)

. Order of arrest. (§§ 80-93.)

. Attachment of property. (§§ 100-114. )
. Replevin. (§§ 120-155.)

. Pleadings. (§§ 160-206.)

. Answer of title. (§§ 210-217.)

. Adjournments. (§§ 220-229.)

. Procuring testimony. (§§ 235-258.)

. Trial and incidents. (§§ 265-309.)

. Judgments. (§§ 315-833.)

. Executions. (§§ 340-375.)

. Costs. (§§ 3880-400.)

. Joint debtors. (§$§ 405-414.)

. Animals straying on highways. (§§ 415-448.)

Summary proceedings to recover possession of real
property. (§§ 450-486.)

Bonds and undertakings. (§§ 495-504.)

Appeals. (§§ 510-543.)

General provisions. (§§ 550-584.)

Laws repealed; when to take effect.

[913]

(§$§ 595, 596.)
914 Report or Joint LeGisuative ComMMirreE

ARTICLE 1

JURISDICTION AND GENERAL POWERS

Section

10.

11.

12.

13.
14.

15.

16.
17.
18.
19.

20.
21.

22.
23.
24.

Short title.

1.
2. Jurisdiction limited.

3. General civil jurisdiction.
4,
5
6
it
8

No jurisdiction in certain cases.

. Confession of judgment.

. Action by person specially aggrieved.

. Action by common informer.

. When part of a penalty may be recovered.
9.

When action not barred by a collusive recovery.

Where action must be brought.

Actions generally; by or against whom brought.

Action by representative.

Limitation of actions; objection, how taken.

Tavern-keepers disqualified.

Members of legislature not compelled to act.

Justices must hold court.

Justice’s court not to be held in certain rooms.

General powers and duties.

Criminal contempt.

Punishment for contempt.

Offender to be heard.

Record of conviction.

Requisites of commitment.

Fine to be paid to overseer or superintendent of the
poor.

Section 1. Short title. This act shall be known as the “ Justice

Court Act.”

[ New. |

§ 2. Jurisdiction limited. A justice of the peace has [such] the
jurisdiction in civil actions and special proceedings[, as is
specially] expressly conferred upon him by statute and no other.

[Code, § 2861, amended as indicated. ]
Justice Courr Act 915

§ 8. General civil jurisdiction. Except as otherwise prescribed
in the next section, a justice of the peace has jurisdiction of the
following civil actions:

1. An action to recover damages upon or for breach of a con-
tract, express or implied, other than a promise to marry, where the
sum claimed does not exceed two hundred dollars.

2. An action to recover damages for a personal injury, or an
injury to property, where the sum claimed does not exceed two
hundred dollars.

3. An action for a fine or penalty not exceeding two hundred
dollars.

4, An action upon a bond conditioned for the payment of money
where the sum claimed to be due does not exceed two hundred
dollars, the judgment to be rendered for the sum actually due.
Where the sum secured by the bond is to be paid in instalments
an action may be brought for each instalment as it becomes due.

5. An action upon a surety bond taken by any justice of the
peace.

6. An action upon a judgment, either foreign or domestic ren-
dered in any inferior court not of record, where the sum claimed
does not exceed two hundred dollars. An action upon a judgment,
foreign or domestic rendered in a court of record, where the sum
claimed does not exceed fifty dollars.

7. An action to recover one or more chattels, with or without
damages for the taking, withholding, or detention thereof, where
the value of the chattel, or of all the chattels, as stated in the
affidavit made on the part of the plaintiff, does not exceed two
hundred dollars.

8. An action to recover damages for an escape from the jail
liberties[[, as provided by chapter two, title two, articles four and
five of this act,J where the sum claimed does not exceed fifty
dollars.

9. An action against an executor or administrator as such, on
a claim not exceeding fifty dollars, which has been duly presented
to and rejected by him.

[Code, § 2862, without change, except the omission from sub-
division 8 of reference to the statute. Subd. 9 includes the last
part of subd. 5 of § 2863, affirmatively stated, without intended
change of substance. ]
916 Reporr or Joint Luetsnative Commirrer

§ 4. No jurisdiction in certain cases. But a justice of the peace
cannot take cognizance of a civil action in either of the following
cases :

1. Where the people of the state are a party, except for one or
more fines or penalties not exceeding two hundred dollars, or for
premiums due the insurance fund under the workmen’s compen-
sation law not exceeding two hundred dollars.

2. Where the title to real property comes in question as pre
scribed in [title third of this chapter] article eight.

3. Where the action is to recover damages for an assault, battery,
false imprisonment, libel, slander, criminal conversation, seduc-
tion, or malicious prosecution. [[, or where it is brought under
sections eighteen hundred and thirty-seven, nineteen hundred and
two, or nineteen hundred and sixty-nine of this act, or sections
twenty-eight or one hundred and one of the decedent estate law.]

4. Where the action is brought against the surviving husband
or wife of the decedent, and the next of kin of the intestate, or the
next of kin or legatees of the testator, to recover, to the extent
of the assets paid or distributed to them, for a debt of the dece-
dent, upon which an action might have been maintained against
an executor or administrator.

5. Where the action is brought by the executor or administrator
of the decedent to recover damages for the wrongful act, neglect
or default, by which the decedent's death was caused, against a
natural person who, or a corporation which, would have been
liable to an action in favor of the decedent by reason thereof if
death had not ensued.

6. Where the action is brought by the people of the state for
the spoliation, conversion or misappropriation of public money,
funds, credits or other property.

7% Where the action is brought under sections twenty-eight or
one hundred and one of the decedent estate law.

_ & [4.9 Where, in a matter of account, the sum total of the
accounts of both parties, proved to the satisfaction of the justice,
exceeds four hundred dollars.

9. [5.] Where the action is brought against an executor or
administrator as such, except as provided in the last section
[where the amount of the claim is less than the sum of fifty dol-
lars, and the claim has been duly presented to the executor or
administrator and rejected by him].

[Code, § 2863, amended as indicated. The italicized matter
is not new, but is intended to supply the references in subd. 3.
Justice Courr Act 917

The exception omitted from subd. 5 is included in subd. 9 of
the last section, affirmatively stated. ]

§ 5. Confession of judgment. A justice of the peace has also
jurisdiction to render judgment, upon the confession of a
defendant, as prescribed [in title sixth of this chapter,] herein
where the sum confessed does not exceed five hundred dollars.

[Code, § 2864, without change except omission of reference
to the statute, as indicated. ]

§ 6. Action by person specially aggrieved. Where a penalty
or forfeiture is given by a statute to a person aggrieved by the
act or omission of another, the person to whom it is given may,
if it is pecuniary, maintain an action to recover the amount
thereof; or, if it consists of the forfeiture of a chattel, he may
maintain an action to recover the chattel, or its value, or other
damages, as the case requires.

[Code, § 1893, without change. ]

§ 7, Action by common informer. Where a penalty or forfeiture
is given by a statute to any person who sues therefor, an action
to recover it may be maintained by any person in his own name;
but the action cannot be compromised or settled without the
leave of the court in which it is brought.

[Code, § 1894, without change. ]

§ 8. When part of a penalty may be recovered. Where a statute
gives a pecuniary penalty or forfeiture, not exceeding a specified
sum, an action may be maintained to recover the sum specified
and the [court, jury, or referee, by which or by whom the issues
of fact are tried, or, where judgment is taken by default for
failure to appear or plead, the damages are ascertained, ] verdict
or judgment may award to the plaintiff the whole sum, or such a
part thereof, as [he] the jury or [it] court deems proportionate
to the offense.

[Code, § 1898, amended as indicated without change of sub
stance. |

§ 9. When action not barred by a collusive recovery. In an
action to recover a penalty or forfeiture, given by a statute,
918 Report or Joint LeaisLaTive COMMITTEE

brought by any person, other than the person aggrieved or a
public officer, the plaintiff may recover, notwithstanding the
recovery of a judgment, for or against the defendant in an action
brought therefor by another person if he establishes that the
former judgment was recovered collusively and fraudulentiy

[Code, § 1896, without change. ]

§ 10. Where action must be brought. An action must be brought
before a justice of a town or city wherein one of the parties
resides or a justice of an adjoining town or city in the same
county, except in one of the following cases:

1. Where the defendant has absconded from his residence, it
may be brought before a justice of the town or city in which the
defendant, or a portion of his property, is at the time of the com-
mencement of the action.

2. Where the plaintiff is not a resident of the county, or if
there are two or more plaintiffs when all are non-residents thereof,
it must be brought in the town where the defendant resides or
in any adjoining town thereto.

3. Where the defendant is a non-resident of the county, it may
be brought before a justice of the town or city in which he is at
the time of the commencement of the action.

4, Where it is specially prescribed by law that a particular
action may be brought before a justice of the town, city, county,
or district, where an offense was committed or where property is
found.

5. In any town adjoining an incorporated city no justice of
such town shall have jurisdiction of any action brought against
a resident of such adjoining city unless one of the parties plaintiff
in such action is a resident of such town.

A defendant designated in sections [twenty-eight hundred and
seventy-nine, section twenty-eight hundred and eighty, or section
twenty-eight hundred and eighty-one] sexty-two, staty-three, sixty-
four and sixty-five of this act is deemed, for the purposes of this
section, a resident of the town or city where the person to whom a
copy of the summons is delivered resides.

[Code, § 2869, without change, except the reference to the
statute. |
Justice Court Act 919

§ 11. Actions generally; by or against whom brought. An action
cognizable by a justice of the peace may be brought by or against:

1. A corporation ;

2. A natural person in his own right;

3. A town or county officer in his official capacity.

[§ 2865, in part, without change of substance. ]

§ 12, Action by representative. An action cognizable by a jus-
tice of the peace may be brought by an executor, administrator,
a trustee of an express trust, or a receiver in supplementary pro-
ceedings.

[§ 2865, in part, without change of substance. ]

§ 13. Limitation of actions; objection, how taken. An action
must be commenced after the cause of action has accrued within
the period prescribed by law; but the objection that the action was
not commenced within the time limited can be taken only by
answer.

[See Code, § 380 and § 413.]

§ 14. Tavern-keepers disqualified. A justice of the peace who is
an innholder or tavern-keeper engaged in the liquor traffic or at
whose inn or tavern liquor is sold has no power or jurisdiction
under any provision of this [chapter] act; but if a judgment has
been actually rendered by him before he became so disqualified, he
may give a transcript thereof, or issue execution thereupon, or
satisfy the judgment, upon payment thereof.

[Code, § 2866, without change. ]

§ 15. Members of legislature not compelled to act. A justice
of the peace who is a member of the senate or assembly is not
obliged to take cognizance of a civil action or special proceeding ;
but he may take cognizance thereof in his discretion.

[Code, § 2867, without change. ]

§ 16. Justices must hold court. A justice of the peace must
hold. within his town or city and not elsewhere, a court for the
trial of any action or special proceeding brought before him of
which he has jurisdiction.
920 Report or Jornr Legistative Commirrer

[Code, § 2868, first part, without change, except that the last
two clauses are transposed, and the clause “and not elsewhere ”
is added from the Revised Statutes. ]

§ 17. Justice’s court not to be held in certain rooms. A justice’s
court shall not be held in a room in any part of which trafficking
in liquors is authorized or in any adjoining room.

[Code, § 2868, in part, without change of substance. ]

§ 18. General powers and duties. A justice of the peace must
hear, try and determine an action or special proceeding brought
before him according to law and equity, and for that purpose,
where special provision is not otherwise made by law, is vested
with all the necessary powers possessed by the supreme court.

[Code, § 2868, last sentence, rewritten, without change of
substance. ]

§ 19. Criminal contempt. A justice of the peace has power to
punish for a criminal contempt a person guilty of either of the
following acts:

1. Disorderly, contemptuous or insolent behavior towards him
while engaged in the trial of an action, the rendering of a judg-
ment, or any other judicial proceeding, where such behavior
directly tends to interrupt the proceedings or to impair the respect
due to his authority.

2. Breach of the peace, noise or other disturbance directly
tending to interrupt his official proceedings.

3. Resistance wilfully offered in his presence to the execution
of his lawful mandate.

He has not power to punish for a criminal contempt in any other
case.

[Code, § 2870, without change. ]

§ 20, Punishment for contempt. Punishment for contempt speci-
fied in the last section may be by fine not exceeding twenty-five
dollars or by imprisonment in the county jail not exceeding five
days, or both, in the discretion of the justice. Where a person
is committed to prison for the non-payment of such a fine he must
Justice Court Act 921

be discharged at the expiration of ten days; but where he is also
committed for a definite time the ten days must be computed
from the expiration of the definite time.

[Code, § 2871, without change. ]

§ 21. Offender to be heard. A person shall not be punished by
a justice of the peace for a contempt until an opportunity has
been given him to be heard in his defence. And for that purpose
the justice must issue a warrant directed generally to any constable
of the county, requiring the constable to bring the offender before
him.

[Code, § 2872, without change. ]

§ 22. Record of conviction. A justice who convicts a person of
a contempt must within ten days after the conviction make up,
subscribe and file in the county clerk’s office a record thereof
stating therein the particular circumstances of the offence and the
punishment awarded by him upon the conviction.

[Code, § 2873, without change. ]

§ 23. Requisities of commitment. A warrant of commitment
for a contempt must set forth the particular circumstances of the
offence, otherwise it is void.

[Code, § 2874, without change. ]

§ 24, Fine to be paid to overseer or superintendent of the poor.
An officer who collects or receives a fine imposed by a justice of
the peace for a contempt, must, within ten days thereafter, pay
the money for the benefit of the poor to the overseer or superin-
tendent of the poor of the town, city or district wherein the fine
was imposed; or, where there is no such officer, to the officer or
officers performing corresponding functions under another name,
unless the board of supervisors has directed the payment of fines
and penalties to the supervisor of the town in a case where it is
authorized by law so to do.

[Code, § 2875, without change. ]
922 Revorr or Joinr Legisiative ComMMrIrree

Section 30.
31.
32.
33.

34.
35.
36.
37.
38.
389.
40,
41.
42,

43.
44,
45.
46.
47.
48.

ARTICLE 2
PARTIES TO ACTION

Who may be joined as plaintiffs.

Who may be joined as defendants.

Party in interest to sue; trustee may sue alone.

Actions and proceedings by and against married
women.

Parties severally liable.

Joinder does not affect other relief.

Right of infant to bring action.

Parties may appear in person or by attorney.

Who may be attorney.

Authority of attorney ; how proved.

Guardian ad litem for infant plaintiff.

Guardian ad litem for infant defendant.

Application for leave to prosecute or defend as a
poor person.

Contents of petition.

When and how leave granted.

Not liable for costs and fees.

When leave may be revoked.

Costs in favor of petitioner.

Appeal, how affected by order.

§ 30. Who may be joined as plaintiffs. All persons having an
interest in the subject of the action and in obtaining the judgment
demanded may be joined as plaintiffs, except as otherwise expressly
prescribed in this act.

[Code, § 446, made applicable to justice court practice by Code,
§ 3347, subd. 3.] ,

§ 31. Who may be joined as defendants. Any person may be
made a defendant who has or claims an interest in the controversy
adverse to the plaintiff, or who is a necessary party defendant
for the complete determination or settlement of a question involved

therein.

[ Code, §

447, first sentence. This section is not expressly made

applicable to justice’s court practice by § 3247, subd. 3. In terms,
Justice Court Act 923

however, it applies to justice’s court practice and is therefore
included in this law. |

§ 32. Party in interest to sue; trustee may sue alone. Every
action must be prosecuted in the name of the real party in interest,
except that an executor or administrator, a trustee of an express
trust, or a person expressly authorized by statute, may sue without
joining with him the person for whose benefit the action is prose
cuted. A person with whom or in whose name a contract is made
for the benefit of another is a trustee of an express trust within
the meaning of this section.

[Code, § 449, without change; made applicable to justice court
practice by Code, § 3347, subd. 3.]

§ 33. Actions and proceedings by and against married women.
In an action or special proceeding a married woman appears,
prosecutes or defends alone or joined with other parties as if she
was single. It is not necessary or proper to Join her husband with
her as a party in any action or special proceeding affecting her
separate property. The husband is not a necessary or proper party
to an action or special proceeding to recover damages to the person,
estate or character of his wife. The husband is not a necessary or
proper party to an action or special proceeding to recover damages
to the person, estate or character of another on account of the
wrongful acts of his wife committed without his instigation.

[Code, § 450, without change; made applicable to justice
court practice by Code, § 3347, subd. 3. ]

§ 34, Parties severally liable. Two or more persons severally
liable upon the same written instrument, including the parties to
a bill of exchange or a promissory note, whether the action is
brought upon the instrument or by a party thereto to recover
against other parties liable over to him, may, all or any of them, be
included as defendants in the same action at the option of the
plaintiff.

[Code, § 454, without change; made applicable to justice court
practice by Code, § 3347, subd. 3.]

§ 35, Joinder does not affect other relief. The joinder of a

person as defendant in an action with another person, as pre
scribed in the last section, does not affect his right to any order or
924 Revorr or Jorinr Leatsuarive ComMirrEE

other relief to which he would have been entitled if he had been
separately sued in the action.

[Code, § 455, without change; made applicable to justice court
practice by Code, § 3347, subd. 3.]

§ 36. Right of infant to bring action. Where an infant has a

right of action he is entitled to maintain an action thereon, and
the same shall not be deferred or delayed on account of his infancy.

[Code, § 468, without change; made applicable to justice court
practice by Code, § 3347, subd. 3.]

§ 87, Parties may appear in person or by attorney. A party to
an action before a justice of the peace, who is of full age, may
appear and prosecute or defend the same in person or by attorney
at his election unless. he has been judicially declared to be incom-
petent to manage his affairs.

[Code, § 2886, without change. ]

§ 38. Who may be attorney. Subject to the provisions of sec-
tions two hundred and seventy-one and two hundred and seventy-
two of the penal law, any person, other than the constable who
served the summons or the venire or the law partner or clerk of
the justice, may be the attorney for a party to an action before a
justice of the peace.

[Code, § 2889, without change. ]

§ 39, Authority of attorney; how proved. [The attorney’s
authority may be conferred orally or in writing; but the justice
shall not suffer a person to appear as an attorney, unless his
authority is admitted by the adverse party, or proved by the affi-
davit or oral testimony of himself, or another.J] The justice shall
not permit a person to appear as attorney unless his authority
is proved by the affidavit or oral testimony of himself or another
or admitted by the adverse party. Such authority may be con-
ferred orally or im writing.

[Code, § 2890, rewritten, but without intended change of
substance. |

§ 40. Guardian ad litem for infant plaintiff. Before a summons
is issued in behalf of, or an issue is joined without summons by,
Justicz Courr Act 925

an infant plaintiff, the justice must appoint a competent and
résponsible person, nominated by the plaintiff or his general guar-
dian, to appear as his guardian for the purpose of the action. The
written consent of the person so appointed must be filed with the
Justice before his appointment. The guardian so appointed is
responsible for the costs.

[Code, § 2887, without change. |

§ 41. Guardian ad litem for infant defendant. After the service
and return of a summons against an infant defendant, no other
proceeding shall be taken in the action, until a person has been
appointed to appear as his guardian for the purpose of the action.
Upon the nomination of the defendant the justice must appoint
a proper person for that purpose. If the defendant does not appear
upon the return of the summons, or if he neglects or refuses to
nominate, the justice may, on the application of the plaintiff,
appoint any proper person as his guardian. The written consent
of the person so appointed must be filed with the justice before
his appointment. The guardian so appointed is not responsible
for any costs.

[Code, § 2888, without change. ]

§ 42. Application for leave to prosecute or defend as a poor person.
A person who alleges that he has a cause.of action against another
person, or an interest in property which is the subject of an
action, may apply by petition to the justice before whom the
action is pending, or before whom it is intended to be brought,
for leave to prosecute or defend as a poor person.

[Code, § 458, rewritten. This and the following sections in
this article are condensed from Code, §§ 458 to 467, inclusive.

By subdivision 3 of § 3347 the provisions of the code relating
to actions by poor persons are made applicable to all courts. The
subject has been transferred to this law so as to include the whole
scheme of procedure applicable to justices’ courts. Some pro-
visions, however, in the existing sections relating to this subject
have been omitted here, because not deemed practicable in justices’
court procedure. ]

§ 43, Contents of petition. The petition must state:

1. The nature of the action brought or intended to be brought,
and the interest of the petitioner therein.
926 Revorr or Joint Lecisuarive COMMITTEE

2. That the applicant is not worth one hundred dollars besides
the wearing apparel and furniture necessary for himself and
his family, and the subject-matter of the action.

It must be verified by the applicant or, if he is under the age
of fourteen years, by his guardian ad litem, and must be sup-
ported by a certificate of a registered attorney to the effect that
he has examined the case and is of the opinion that the applicant
has a good cause of action or defense.

[Code, § 459, last paragraph rewritten, but without intended
change in substance. The clause “and the interest of the peti-
tioner therein ” has been added at the end of subdivision 1.]

§ 44, When and how leave granted. The justice to whom the
petition is presented, if satisfied of the truth of the facts alleged,
and that the applicant has a good cause of action or defense, may
by order admit him to prosecute or defend as a poor person.

[Code, § 460, rewritten, without intended change in sub-
stance, except that the provision for the assignment of an attorney
has been omitted. ]

§ 45. Not liable for costs and fees. A person so admitted may
prosecute or defend his action without paying fees to any officer
or juror; and he shall not be prevented from prosecuting or
defending the same by feason of his being liable for the costs of
a former action between the same parties. A judgment rendered
against him shall not include costs.

[Code, § 461, rewritten, but without intended change in sub-
stance. |

§ 46. When leave may be revoked. If the person so admitted
is guilty of improper conduct in the prosecution or defense of
the action or of wilful or unnecessary delay, the justice may in
his discretion revoke the order admitting him to prosecute or
defend as a poor person; and he shall thereafter be deprived of
all the privileges conferred thereby.

[Code, § 462, rewritten, without change in substance. ]

§ 47, Costs in favor of petitioner. Where costs are awarded to
a person who has been admitted to prosecute or defend as a
Justice Court Act 927

poor person, and collected from the adverse party, they must

be paid over to the officer or juror entitled thereto as prescribed
in this act.

[Code, § 467, rewritten, but without intended change in. sub-
stance. |

§ 48. Appeal, how affected by order. A party cannot take or
maintain an appeal as a poor person, but where an appeal is
taken by the adverse party, an order under this article is appli-
cable in favor of the petitioner as respondent on the appeal.

[Code, § 466, rewritten, but without intended change in sub-
stance. |

ARTICLE 3
COMMENCEMENT OF ACTION

Section 55. Action; how commenced.

56. Contents of summons.

57. Summons, when returnable.

58. Complaint may accompany summons.

59. Service of summons.

60. Indorsement upon summons.

61. Service of summons on a domestic municipal corpo
ration.

62. Service on other corporations.

63. Service on a person or partnership doing business
in a county other than that of residence.

64. Service upon railroad corporations.

65. Service on express, insurance and telegraph com-
panies.

66. Last two sections qualified.

67. Second and third summons; effect thereof.

68. Where name of defendant is unknown.

69. Return of summons.

70. Designation for service when person absent.

§ 55. Action; how commenced. An action is commenced before
a justice of the peace: [, either by the voluntary appearance
928 Reporr or Joinr LeGisLaATivE COMMITTEE

and the joinder of issue by the parties, or by the service of a
summons]

1. By the service of a summons; or

2. By the voluntary appearance of the parties and the filing
of the complaint, either with or without a joinder of wssue.

[Code, § 2876, rewritten and amended as indicated. The
requirement that issue be joined has been omitted. Under this
section, as amended, the action is deemed to be commenced if
the parties actually appear before the justice, and the plaintiff
files his complaint, whether the defendant interposes an answer
or not. His voluntary appearance is deemed to confer juris-
diction with the same effect as if a summons had been served.

This does not, however, permit the plaintiff to take judgment
by default without proof, either by a verified complaint in the
cases authorized or on the production of evidence to sustain his
complaint, if not verified. ]

§ 56, Contents of summons. The summons must be directed
generally to any constable of the county where the justice resides;
and it must command him to summon the defendant to appear
before the justice at a place specified therein to answer the com-
plaint of the plaintiff in a civil action. [[Where the summons
is accompanied with an order to arrest the defendant, it must
be made returnable immediately upon the arrest of the defendant,
within twelve days after the day when it was issued; in every
other case, it must be returnable at a time therein specified, not
less than six nor more than twelve days after the day when it

was issued. A summons shall not be made returnable on a legal
holiday.J

[Code, § 2877, first sentence, without change. ]

§ 57. Summons, when returnable. A summons must be made
returnable at a time therein specified, not less than six nor more
than twelve days after the day of its issue; except that where
It 18 accompanied with an order to arrest the defendant, it must
be made returnable immediately upon his arrest, and within
twelve days after the day of its issue. A summons shall not be
returnable on a legal holiday.

[Code, § 2877, last two sentences rewritten, without intended
change of substance. ]
Justics Court Act 929

§ 58. Complaint may accompany summons. A copy of the com-
plaint may be served with the summons.

[ New. ]

§ 59. Service of summons. Pergonal service of the summons
must be made by delivering a copy thereof to the defendant;
except where it is specially prescribed in [this chapter] this act
that personal service may be made by delivering a copy to another
person. Where service of a summons is personal, it must be
made at least six days before the time of appearance specified
therein ; except where it is accompanied with an order of arrest.

[Code, § 2878, without change. ]

§ 60. Indorsement upon summons. In an action to recover a
penalty or forfeiture, given by a statute, if a copy of the com-
plaint is not delivered to the defendant with a copy of the sum-
mons, a general reference to the statute must be indorsed upon
the copy of the summons so delivered in the following form:
“According to the provisions of,” ete.; adding such a description
of the statute as will identify it with convenient certainty, and
also specifying the section, if penalties or forfeitures are given
in different sections thereof, for different acts or omissions.

[Code, § 1897, without change. ]

§ 61. Service of summons on a domestic municipal corporation.
Personal service of a summons on a domestic municipal corpo-
ration must be made by delivering a copy thereof anywhere
within the state as follows:

1. If the action is against a city, to the mayor, comptroller,
treasurer, counsel, attorney or clerk; or if the city lacks either of
those officers, to the officer performing corresponding functions
under another name.

2. If the action is against a village, to the president, clerk,
or any trustee thereof.

3. If the action is against a county, to the chairman or clerk
of the board of supervisors.

4. If the action is against a town, to the supervisor, town
clerk, or any justice of the peace thereof.

30
9380 Revort or Jornr Leaisuative ComMMITrer

5. If the action is against a school district, to any member of
the board of education, any trustee, the secretary or clerk.

[Code, § 431, in part, extended. Subdivision 1 is a combi-
nation of subdivisions 1 and 2 of § 431. Subdivisions 2, 3, 4
and 5 are new in terms. }

§ 62. Service on other corporations. Where the defendant to
be served is a corporation other than a domestic municipal corpo-
ration, personal service of the summons must be made by deliver-
ing a copy thereof anywhere within the state, as follows:

1. If the defendant be a domestic corporation, to the president
or other head of the corporation, the secretary or clerk; the
cashier, treasurer, a managing agent, or any director or trustee,
by whatever official title he is called.

2. If the defendant be a foreign corporation, to the president,
treasurer or secretary; or, if the corporation lacks either of these
officers, to the officer performing corresponding functions under
another name; or, to the cashier, a director or managing agent
of the corporation; or, to a person designated for the purpose as
provided in section 16 of the general corporation law.

[Code, § 481, subdivision 3; § 482, subdivisions 1, 2 and
3 and § 2879, in so far as it applies to corporations, rewritten
and combined without intended change of substance. By the
terms of subdivision 3 of § 432, service on the cashier or a
director or managing agent of a foreign corporation cannot be
made if a designation filed with the secretary of state of a
person upon whom process may be served is in force, but this
limitation as to process of a justice court is superseded by
§ 2879, which expressly permits service on a director, managing
agent or trustee, in case a corporation does business in a county
other than that in which it resides, which, of course, is the case
of all foreign corporations. The last paragraph of § 432 per-
mitting service on the secretary of state in certain cases, added
by L. 1909, chapter 65, has not been extended to justice court
practice. ]

§ 63, Service on a person or partnership doing business in a county
other than that of residence. Where the defendant to be served
is a person, or an unincorporated company or partnership, doing
business in a county other than in which such person resides, or
Justice Court Act 931

in which such company or partnership has its principal place
of business, personal service of the summons may be made by
delivering a copy thereof anywhere within the state to.a manag-

ing agent of such person, partnership or company, by whatever
official title called.

[Code, § 2879, in so far as it applies to a person, unincorpo-
rated company or partnership, rewritten. The section is obscure.
It may have been intended to apply only to a managing agent
within the county wherein process is issued, but in terms it
applies to a managing agent in any part of the state, the only
condition being that the person, company or partnership shall
do business in a county other than of residence, ]

§ 64, Service upon railroad corporations. Where the defendant
in the county to whom a copy of the summons may be delivered
to be served is a railroad corporation and no officer thereof resides
as prescribed in the foregoing sections of this article [last section],
it may be personally served by delivering a copy thereof to a local
superintendent of repairs, freight agent, agent to sell tickets, or
station keeper of the corporation, residing in the county; unless,
at least thirty days before it was issued, the corporation had filed
in the office of the clerk of the county a written instrument desig-
nating a person residing in the county upon whom process to be
issued by a justice of the peace against it may be served; in which
ease, the summons may be personally served by delivering a copy
to the person so designated.

[Code, § 2880, without change. ]

§ 65. Service on express, insurance and telegraph companies.
Where the defendant to be served is a corporation, association,
partnership or person doing business in the state as an express
company, an insurance company, or a telegraph company, and
no person resides in the county to whom a copy of the summons
may be delivered, as prescribed in the foregoing sections of this
article, it may be personally served on the express company by
delivering a copy thereof to any local or general agent to receive
freight or parcels, route agent, or messenger of the defendant,
residing in the county, and on any insurance company by deliver-
ing a copy thereof to any local or general agent of the defendant,
residing in the county, and on any telegraph company by deliver-
ing a copy thereof to any office manager of the defendant, residing
932 Report or Jornt Legisuative COMMITTEE

in the county; unless at least thirty days before it was issued, the
defendant had filed in the office of the clerk of the county a written
instrument designating a person residing in the county upon whom
process to be issued by a justice of the peace against the defendant
may be served; in which case the summons may be personally
served by delivering a copy thereof to the person so designated.

[Code, § 2881, without change. ]

§ 66. Last two sections qualified. Where a person has been
designated, as prescribed in either of the last two sections, and
the designation has been revoked, or it appears, by affidavit or the
return of the constable to whom a summons has been duly delivered
for service that the person designated is dead, or has ceased to
reside within the county, or that he cannot, after due diligence,
be found within the county so as to deliver a copy of the summons
to him; the original summons, or the second or third summons,
issued as prescribed in the next section, may be served as if the
designation had not been made. Such a designation may be
revoked by a writing, executed and filed in like manner as required
for the purpose of making the designation.

[Code, § 2882, without change. ]

§ 67. Second and third summons; effect thereof. Where it
appears, by the return of the constable to whom a summons has
been duly delivered for service that it was not served for any
cause, a second summons may be issued by the same justice, in
the same action within twenty days after the first summons was
issued; and, upon the like return thereof, a third summons may
be issued within twenty days after the second was issued. The
second or the third summons, as the case may be, relates back to the
time when the first summons was issued; and, with respect to
all proceedings before actual service, the service thereof has the
same effect as if the first summons had been seasonably served.
For the purpose of issuing a new summons, as prescribed in this
section, a previous summons may be returned upon the sixth or
any subsequent day before the return day thereof.

[Code, § 2883, without change. ]

§ 68. Where name of defendant is unknown. Where the plain-
tiff is ignorant of the name, or part of the name, of a defendant,
Justice Court Act 933

that defendant may be designated in the summons, and in any
other process or proceeding in the action by a fictitious name, or by
so much of his name as is known, adding a description identifying
the person intended. The person so designated must thereupon
be regarded as a defendant in the action and as sufficiently
described therein for all purposes. When his mame, or the
remainder of his name, becomes known, the justice before whom
the action is pending must amend the proceedings already taken
by the insertion of the true or full name in place of the fictitious
name, or part of a name; and all subsequent proceedings must be
taken under the name so inserted.

[Code, § 2884, without change. ]

§ 69. Return of summons. A constable who serves a summons,
or a summons and complaimt, must, at or before the time when
the summons [same] is returnable, make and deliver to the jus-
tice a written return thereof under his hand stating the time when,
and the manner in which such service was made [, he served it].
A constable who fails seasonably to serve a summons, or @ swm-
mons and complaint, delivered to him for service must make a
written return thereof under his hand stating such failure [that
it was not served], and the reason thereof [why he failed to
serve it].

[Code, § 2885, amended as indicated to include a case where
a complaint is served with the summons. ]

§ 70, Designation for service when person absent. An adult

resident of the state may execute and acknowledge, in the manner
required by law to entitle a deed to be recorded, a written designa-
tion of another resident of the state as a person on whom to serve
a summons or any process or other paper for the commencement
against him of a civil action or special proceeding during the
absence from the United States of the person making it; and may
file the same with the written consent of the person so designated,
executed and acknowledged in the same manner, in the office of
the clerk of the county where the person making the designation
resides. The designation must specify the residence of the person
making it, and also of the person designated, and, it remains in
force during the period specified therein, if any, or if no period
is specified, for three years after the filing thereof, but it is
revoked earlier by the death or legal incompetency of either of
934 Report or Joint Lecistative ComMMItTTEE

the parties thereto, or by the filing of a revocation thereof, or of
the consent, executed and acknowledged in like manner. The
clerk must file and record such a designation, consent or revoca-
tion, and must note on the record of the original designation the
filing and recording of a revocation.

While the designation remains in force a summons or any
process or other paper for the commencement of a civil action
or special proceeding against such person may be served on the
person so designated in like manner and with like effect as if it
was served personally on the person making the designation.

[Code, § 480, rewritten with verbal changes, but without
intended change of substance. It seems by its terms to apply to
a justices’ court and is a part of the justices’ court law by refer-
ence from subdivision 2, § 2906, of the Code. ]

ARTICLE74
ORDER OF ARREST

Section 80. Order of arrest; in what cases it may be granted.
81. In what actions.
82. On what papers.
838. Contents of order.
84. Copy of order and other papers to be served.
85. Duty of constable.
86. Return; when plaintiff notified must appear.
87. Constable to keep defendant in custody.
88. Motion to discharge from arrest.
89. Basis of application.
90. When defendant to be discharged.
91. Effect of discharging defendant.
92. When plaintiff must prove extrinsic facts.
93. Privilege from arrest.

§ 80. Order of arrest; in what cases it may be granted. At
the time when the summons is issued, in an action specified in
the next section, the justice who issues the summons must, upon
the application of the plaintiff and upon compliance by him with
the provisions of this article, grant an order for the arrest of the
defendant in either of the following cases:

1. Where the defendant to be arrested is not a resident of the
county.
Justice Court Act 935

2. Where the plaintiff is not a resident of the county; or, if
there are two or more plaintiffs, where all are non-residents thereof.

3. Where it appears to the satisfaction of the Justice, by the
affidavit of the plaintiff or another person, that the defendant is
about to depart from the county with intent not to return thereto.

But such an order cannot be granted where the defendant
against whom it is applied for is a female.

[Code, § 2894, without change. ]

§ 81. In what actions. An order of arrest can [shall not] be
granted only in an[[, except where the] action [is] brought for
one or more of the following causes:

1. To recover a fine or penalty.

2. To recover damages for a personal injury of which a justice
of the peace has jurisdiction; an injury to property including the
wrongful taking, detention or conversion of personal property;
misconduct or neglect in office or in a professional employment ;
fraud; or deceit. But this subdivision does not apply to a claim
for damages in an action to recover a chattel.

3. To recover for money received, or to recover a chattel where
it appears that the money was received, or that the chattel was
embezzled or fraudulently misapplied, by a public officer, or by
an attorney, solicitor or counsellor, or by an officer or agent of
a corporation or banking association in the course of his employ-
ment, or by a factor, agent, broker or other person in a fiduciary
capacity. :

[Code, § 2895, with slight verbal changes, as indicated. ]

§ 82. On what papers. Where it appears to the justice, by the
affidavit of the plaintiff or another person, that a sufficient cause
of action exists against the defendant and that the case is within
the provisions of the last two sections, he must grant the order of
arrest. But before granting it he must require a written under-
taking to the defendant on the part of the plaintiff with ono or
more sureties, approved by the justice, to the effect that, if the
defendant recovers judgment, the plaintiff will pay all costs which
may be awarded to the defendant and all damages which he may
sustain by reason of the arrest, not exceeding the sum specified
in the undertaking which must be at least one hundred dollars.

[Code, § 2896, without change. ]
9386 Report or Joint Leqistative ComMirrrer

§ 83. Contents of order. The order must be subscribed by the
justice and indorsed upon or attached to the summons. It must
briefly recite the ground of arrest, and it must direct the constable
who serves the summons to arrest the defendant, to bring him
forthwith before the justice, and to notify the plaintiff of the
arrest if he can do so with reasonable diligence.

[Code, § 2897, without change. ]

§ 84, Copy of order and other papers to be served. A copy of
the order of arrest and the papers on which it was granted and

of the undertaking must be delivered by the constable to the
defendant when the arrest is made.

[New.]

§ 85. Duty of constable. The constable must at the time of
serving the summons execute the order of arrest by arresting the
defendant and taking him forthwith before the justice. If the
justice is absent or unable to try the action, the constable must
forthwith take the defendant before another justice of the same
town or city who must take cognizance of the action and proceed
therein as if the summons had been issued and the order of arrest
had been granted by him.

[Code, § 2898, without change. ]

§ 86. Return; when plaintiff notified must appear. The con-
stable executing the order of arrest must forthwith deliver to the
justice the order, and a written return thereto, under his hand,
stating the manner in which he has executed it, and either that he
has notified the plaintiff or that he could not do so with reasonable
diligence. If he returns that he has notified the plaintiff, the
latter must appear within one hour after the defendant is brought
before the justice; otherwise judgment of nonsuit must be rendered
against him.

[Code, § 2899, without change. ]

§ 87. Constable to keep defendant in custody. The constable
executing the order, or another constable, by direction of the jus-
tice, must keep the defendant in custody until he is discharged by
the order of the justice, or judgment is rendered in his favor;
but the detention shall not, in any case, exceed twelve hours from
Justice Court Act 937

the time when the defendant is brought before the justice, unless
within that time a venire is issued or the trial of the action is com-

menced, or unless either is delayed with the express assent of the
defendant.

[Code, § 2900, without change. ]

§ 88. Motion to discharge from arrest. A defendant may apply
to the justice for an order discharging him from arrest:

1. Without notice, on the appearance of the plaintiff.

2. At any time afterwards before judgment, on two days’ writ-
ten notice served personally on the plaintiff, or on his agent or
attorney who appear for him.

[Code, § 2901, first sentence, rewritten, without change of
substance. |

§ 89. Basis of application. If the application be made on the
return of the order, it must be founded on the complaint, if any,
and the papers on which the order was granted. If the application
be made on notice, it may also be founded on proof by affidavit
on the part of the defendant, and if the defendant present such
proof, it may be opposed by new proof by affidavit on the part of
the plaintiff tending to sustain any ground of arrest recited in
the order, but no other. An affidavit on behalf of the defendant,
intended to be used by him on the application, must be served
with the notice thereof.

[Code, § 2901, in part, rewritten, by providing that the appli-
cation for discharge may be made not only on the plaintifi’s papers,
but also on proof on behalf of the defendant. The present law
seems to permit him only to attack the regularity, validity or suf-
ficiency of the plaintiff’s papers. ]

§ 90, When defendant to be discharged. The justice must grant
the application where it appears that the case is not one in which
an order of arrest is authorized by this article [within the pro-
visions of sections twenty-eight hundred and ninety-four and
twenty-eight hundred and ninety-five of this act]. The justice must
also on the defendant’s application grant an order discharging him
from arrest, if the plaintiff fails to take out from the justice an
execution on a judgment in his favor before the expiration of one
hour after he is entitled thereto.

[Code, § 2901, last two sentences, without change. ]
938 Revort or Jornt LecistativE ComMMItrrEer

§ 91. Effect of discharging defendant. The discharge of the
defendant from arrest before judgment, as prescribed in the last
section, or in section [twenty-nine hundred and sixty-three]
two hundred and twenty-four of this act, does not affect the juris-
diction of the justice over the action which must proceed as if it
had been commenced in the ordinary manner. Tis discharge
from arrest after judgment, as prescribed in the last section, does
not affect the execution.

[Code, § 2902, without change. ]

§ 92. When plaintiff must prove extrinsic facts. Where an order
of arrest has been granted and executed, in a case specified in
subdivision third of section [twenty-eight hundred and ninety-
five] eighty-one of this act, the plaintiff cannot recover upon a
default, and the defendant is entitled to judgment upon a trial,
unless the plaintiff establishes all the matters of fact which are
required, by that subdivision to entitle him to an order of arrest.

[Code, § 2903, without change. ]

§ 93, Privilege from arrest. This article does not abridge or
otherwise affect a privilege from arrest given by law, or a right of
action for the breach thereof. A privileged person is entitled to
be discharged from arrest by the order of the justice before whom
he is brought, upon proof by affidavit of the facts entitling him
to a discharge; or he may apply for and obtain an order for his
discharge [as prescribed in section five hundred and sixty-four
of this act. from the county judge of the county where the arrest
was made. The order must be made, upon proof by affidavit of
the facts entitling the applicant to the discharge; and the arrest
and discharge are not a bar to a new arrest after the privilege has
ceased. The court or judge may make the order without notice.
or may require notice to be given to the constable, or to the plain-
tiff, or to both.

[Code, § 2904. The italicized words are intended to supply the
omitted reference in the text to Code, § 564.]
Justice Court Act 939

ARTICLE 5
ATTACHMENT OF PROPERTY

Section 100. In what actions warrant of attachment may be
granted.
101. What must be shown to procure a warrant.
102. Warrant; form and contents thereof.
103. Undertaking.
104. Warrant; how executed.
105. Sale of perishable property.
106. Service of papers on defendant.
107. Undertaking by defendant; redelivery to him.

108. Claim by third person; bond and delivery thereon.
109. Action on bond.

110. When defendant may prosecute bond.

111. Return of warrant.

112. Motion to vacate or modify warrant.

113. Effect of vacating warrant.

114. Proceedings where summons not personally ‘served.

§ 100. In what actions warrant of attachment may be granted.
In an action brought before a justice of the peace a warrant of
attachment against the property of one or more defendants must
be granted upon the application of the plaintiff, as prescribed
in this article, where the action is brought upon a judgment, or
to recover for one or more of the following causes:

1. Breach of a contract, express or implied.

2. Wrongful conversion of personal property.

3. Any other injury to personal property in consequence of
negligence, fraud, or other misconduct.

[Code, § 2905, without change. ]

§ 101. What must be shown to procure a warrant. To entitle
the plaintiff to such a warrant he must show by affidavit to the
satisfaction of the justice as follows:

1. That a sufficient cause of action exists against the defendant
to recover damages for one or more of the causes specified in the
last section. If the action is on a judgment, or to recover for
breach of a contract, the affidavit must show that the plaintiff is
940 Report or Joint LEGISLATIVE COMMITTEE

entitled to recover a sum stated therein, over and above all
counterclaims known to him.

2. That the defendant is a foreign corporation; or

3. Not a resident of the state; or

4. If the defendant is a natural person and a resident of the
state, that he has departed or is about to depart from the county
where he last resided, with intent to defraud his creditors or
avoid service of a summons, or keeps himself concealed with the
like intent; or

5. If the defendant is a natural person, that he has removed
or is about to remove property from the county where he last
resided, or from the county in which the action is brought, with
intent to defraud his creditors, or has assigned, disposed of or
secreted, or is about to assign, dispose of or secrete property with
the like intent; or

6. If the defendant is a domestic corporation, that it has
removed or is about to remove property from the county where
it last kept its principal office, or from the county in which the
action is brought, with intent to defraud its creditors, or has
assigned, disposed of or secreted, or is about to assign, dispose of
or secrete property with the like intent; or

7. If the defendant is an adult natural person and a resident
of the state, that he has been continuously without the United
States during the six months immediately before the application,
and that he has not made a designation of a person on whom to
serve a summons in his behalf as prescribed in section 70, or that
service on the person so designated cannot be made with due
diligence in the county where the person making the designation
resides.

The affidavit must be filed with the justice when the warrant
is granted.

| Code, § 2906. Subdivision 2 has been rewritten and put into
subdivisions for more convenient reference, but without intended
change of substance. }

§ 102. Warrant; form and contents thereof. The warrant must
be granted by the justice who issues the summons at the time
when the summons is issued, and it must be indorsed there
upon or annexed thereto. It must be subscribed by the justice,
and must briefly recite the ground of the attachment. It must
require the constable to whom the summons is delivered to attach,
Justices Court Act 941

on or before a day specified therein which must be at least six
days before the return day of the summons, and safely to keep
as much of the defendant’s goods and chattels, within his county,
as will satisfy the plaintiff’s demand with the costs and expenses,
and to make return of his proceedings thereon to the justice at
the time when the summons is returnable. The amount of the

plaintif’s demand must be specified in the warrant as stated in
the affidavit.

[Code, § 2907, without change. ]

§ 103, Undertaking. Before granting the warrant the justice
must require a written undertaking to the defendant on the part
of the plaintiff, with one or more sureties approved by the justice,
to the effect that, if the defendant recovers judgment or the
warrant of attachment is vacated, the plaintiff will pay all costs
which mav be awarded to the defendant and all damages which
he may sustain by reason of the attachment, not exceeding the
sum specified in the undertaking, which must be at least two
hundred dollars; and that if the plaintiff recovers judgment, he
will pay to the defendant all money received by him from prop-
erty taken by virtue of the warrant of attachment, or upon any
bond given therefor, over and above the amount of the judgment,
and interest thereupon.

[Code, § 2908, without change. ]

§ 104. Warrant; how executed. The constable to whom the
warrant of attachment is delivered must execute it at least six
days before the return day of the summons by levying upon and
taking into his custody so much of the goods and chattels of the
defendant, not exempt from levy and sale by virtue of an exe
cution, including money and bank notes, which he finds within
his county, as will satisfy the plaintiff’s demand, with the costs
and expenses. He must safely keep the property attached, to be
disposed of as prescribed in this article, and must immediately
make an inventory thereof, stating therein the estimated value of
each item or article.

[Code, § 2909, first part, without change. ]

§ 105. Sale of perishable property. If property attached is
perishable, the justice who issued the warrant may, by an order
949 Report or Jorvr Legistative CoMMITTEE

made and entered upon his docket, and with or without notice as
the urgency of the case in his opinion requires, direct the con-
stable to sell such property at public auction, and thereupon the
constable must sell it accordingly. A certified copy of the order
directing the sale shall be delivered to such constable. Such
order must prescribe the time and place of the sale, and notice
thereof must be given in such manner and for such time as
directed by the order. The constable shall retain in his hands
the proceeds of such sale until the final determination of the
action.

[Code, § 2909, last part, without change. ]

_ § 106. Service of papers on defendant. The constable must,
immediately after making the inventory and at least six days
before the return day of the summons, serve the summons,
together with the warrant of attachment and inventory, upon the
defendant by delivering to him personally a copy of each if he
can, with reasonable diligence, be found within the county; or,
if he cannot be so found, by leaving a copy of each, certified by
the constable, at the last place of residence of the defendant in
the county with a person of suitable age and discretion; or, if
such a person cannot be found there, by posting it on the outer
door, and.also depositing another copy in the nearest post-office,
inclosed in a sealed post-paid wrapper, directed to the defendant
at his residence; or, if the defendant has no place of residence
in the county, by delivering it to the person in whose possession
the property attached is found.

[Code, § 2910, without change. ]

§ 107. Undertaking by defendant; redelivery to him. The
defendant, or his attorney or agent in his behalf, may, at anv
time before judgment is rendered in the action, execute and
deliver to the constable an undertaking to the plaintiff in a sum
specified therein at least twice the value of the property attached
as stated in the inventory, with one or more sureties approved by
the constable or by the justice who issued the warrant, and to the
effect that, if judgment is rendered against the defendant and
an execution is issued thereupon, within six months after the
giving of the undertaking, the property attached shall be pro-
duced to satisfy the execution. Thereupon the constable must
redeliver the property to the defendant.

[Code, § 2911, without change. ]
Justice Courr Act 9438

§ 108. Claim by third person; bond and delivery thereon. If a
person not a party to the action claims any property attached
which is not reclaimed by the defendant, as prescribed in the
last section, he may, at any time after the seizure and before
execution is issued upon a judgment rendered in .the action,
execute and file with the justice a bond to the plaintiff, with one
or more sureties approved by the constable or by the justice, in
a penalty at least twice the value of the property claimed, and
conditioned that, in an action upon the bond, to be commenced
within three months thereafter, the claimant will establish that
he was the general owner of the property claimed at the time of
the seizure; or, if he fails so to do, that he will pay to the plaintiff
the value thereof, with interest. The constable must thereupon
redeliver the property claimed to the claimant.

[Code, § 2912, without change. ]

§ 109. Action on bond. A judgment for the plaintiff, in an
action upon a bond, given as prescribed in the last section, must
award to him the value of the property seized and delivered to
the claimant, with interest thereupon from the time of the
delivery. If the amount so recovered exceeds the amount which
the plaintiff recovers in the action in which the warrant of attach-
ment was issued, he is liable to the defendant in that action for
the excess.

[Code, § 2913, without change. ]

§ 110. When defendant may prosecute bond. If the warrant of
attachment is vacated or annulled, the defendant may maintain
an action upon the bond specified in the last two sections, in his
own name, in the same manner and with the like effect as the
plaintiff might have done if the warrant had remained in full
force.

[Code, § 2914, without change. ]

§ 111. Return of warrant. The constable executing the warrant
of attachment must, at the time when and place where it is return-
able, make a return thereto, under his hand, stating all his pro-
ceedings thereupon. He must deliver to the justice, with the
return, each bond or undertaking delivered to him, pursuant to
any of the foregoing provisions of this article, and a certified
copy of the inventory of the property attached. The return must
944 Report or Joint Lue@isuative CoMMITTEE

state the manner in which the warrant and inventory were served,
and, if they were served otherwise than by delivering a copy
thereof to the defendant personally, the reason therefor, and the
name of the person to whom the copy was delivered, unless his
name is unknown to the constable; in which case, the return must
describe him so as to identify him, as nearly as may be.

[Code, § 2915, without change. ]

§ 112. Motion to vacate or modify warrant. A defendant whose
property has been attached may, upon the return of the sum-
mons, apply to the justice who issued the warrant of attachment,
to vacate or modify it, or to increase the plaintiff’s security.
Such an application may be founded upon the papers upon which
the warrant was granted, or upon proof by affidavit on the part
of the defendant, or upon both. If it is founded upon proof on
the part of the defendant, it may be opposed by new proof by
affidavit upon the part of the plaintiff tending to sustain any
ground for the attachment recited in the warrant, but no other.
The justice may, upon the return of the summons or at any other
time to. which the action is adjourned, vacate the warrant of
attachment upon his own motion, if he deems the papers upon
which it was granted insufficient to authorize it.

[Code, § 2916, without change. ]

§ 113. Effect of vacating warrant. Vacating the warrant of
attachment does not affect the jurisdiction of the justice to hear
and determine the action where the defendant has appeared
generally in the action; or where the summons was personally
served upon him; or where judgment may be taken against him
as being indebted jointly with another defendant who has been
thus summoned or has thus appeared. In every other case, the
Justice who vacates a warrant of attachment against the property
of a defendant must dismiss the action as to him.

[Code, § 2917, without change. ]

§ 114. Proceedings where summons not personally served. Where
the defendant has not appeared, and the summons has not been
personally served upon him, and property of the defendant has
been duly attached by virtue of a warrant which has not: been
vacated, the justice must proceed to hear and determine the
Justice Court Act 945

action; but, in an action subsequently brought, the judgment is
only presumptive evidence of indebtedness and the defendant is
not barred from any counterclaim against the plaintiff. The
execution issued upon a judgment so rendered must require the
eonstable to satisfy it out of the property so attached without
containing a direction to satisfy it out of any other property.

[Code, § 2918, without change. ]

Section 120.
121.
122.
123.
124.
125.

126.
127.
128.
129.

130.
131.
132.
133.
134.
135.
136.

137.

138.
139.
140.
141.
142.
143.

ARTICLE 6
REPLEVIN

When action for a chattel may be brought.

When it cannot be maintained.

After judgment against the plaintiff.

By an assignee.

Joinder of action with others.

Plaintiff may procure replevin; affidavit and
undertaking.

Affidavit.

Where several chattels are to be replevied.

Plaintiff's undertaking for replevin.

When agent may make affidavit for replevin or
return.

Requisition.

How chattel to be replevied.

Chattel; how taken from a building.

Service of papers on defendant.

Replevied chattel; how kept.

Return of constable.

Defendant may except to sureties; proceedings
thereon.

Defendant may reclaim chattel; proceedings
thereon.

Claim of title by third person.

Action against constable upon such claim.

Indemnity to constable against such action.

Justification of sureties.

Damages when chattel is injured by defendant.

When and to whom constable must deliver.
946 Report or Jornr LEGISLATIVE COMMITTEE

Section 144. Penalty for wrong delivery by constable.
145. Defendant may demand judgment for return.
146. Verdict.
147. Substitute in certain cases for finding as to value.
148. Final judgment.
149. Execution in replevin.
150. Constable’s power to take chattel.
151. Action on undertaking.
152. Constable’s return as evidence.
153. Injury no defense.
154. Proceedings when summons not personally served.
155. When action not affected by failure to replevy.

§ 120. When action for a chattel may be brought. Ax action to
recover a chattel, with or without damages for the wrongful
taking, withholding or detention thereof, can be brought before a
justice of the peace of the county in which the chattel is found,
[in a case, and subject to the qualifications, specified in sections
sixteen hundred and eighty-nine, sixteen hundred and ninety,
sixteen hundred and ninety-one, and sixteen hundred and ninety-
two, and subdivision seventh of section twenty-eight hundred and
sixty-two of this act.] as provided in this act.

[Code, § 2919, without change, except omission of references,
as indicated. ]

§ 121. When it cannot be maintained. An action to recover a
chattel cannot be maintained in either of the following cases:

1. Where the chattel was taken by virtue of a warrant against
the plaintiff for the collection of a tax, assessment or fine issued
in pursuance of a statute of the state or of the United States,
unless the taking was, or the detention is, unlawfull[, as speci-
fied in section sixteen hundred and ninety-five of this act].

2. Where it was seized by virtue of an execution, or a warrant
of attachment, against the property of the plaintiff, unless it was
legally exempt from such seizure or is unlawfully detained[[, as
specified in section sixteen hundred and ninety-five of this act].

3. Where it was seized by virtue of an execution, or a warrant
of attachment, against the property of a person other than the
plaintiff, and at the time of the commencement of the action
the plaintiff had not the right to reduce it into his possession.

[Code, § 1690, without change, made applicable to justice
court practice by Code, § 2919.]
Justice Court Act 947

§ 122, After judgment against the plaintiff. Where a chattel
is replevied in an action to recover the same and a final judgment
awarding the possession thereof to the defendant is rendered, a
subsequent action to recover the same chattel cannot be main-
‘ tained by the plaintiff for the same cause of action. But the
judgment does not affect his right to maintain an action to recover
damages for taking or detaining the same or any other chattel
unless it was rendered against him upon the merits.

[Code, § 1691, without change, made applicable to justice
court practice by Code, § 2919.]

§ 123. By an assignee. An action to recover a chattel, the title
to which has been transferred to the plaintiff since the wrongful
taking, or during the wrongful detention thereof, with or with-
out the damages sustained by the taking, withholding,-or deten-
tion, may be maintained in any case, where, except for the trans-
fer, such an action might be maintained, by the person from or
through whom the plaintiff derives title; but not otherwise.

[Code, § 1692, without change; made applicable to justice
court practice by Code, § 2919. ]

§ 124, Joinder of action with others. Nothing in this [title]
article is to be [so] construed [as] to prevent the plaintiff from
uniting in the same complaint two or more causes of action in

any case specified in section [four hundred and eighty-four] one
hundred and sixty-five of this act.

[Code, § 1689; without change, made applicable to justice
court practice by Code, § 2919.]

§ 125, Plaintiff may procure replevin; affidavit and undertaking.
The plaintiff may, at the time when the summons is issued,
but not afterwards, require the chattel to be replevied, as
prescribed in this article. For that purpose he must deliver to
the justice an affidavit and an undertaking, [similar, in all
respects, to the affidavit and undertaking required to be delivered
to a sheriff,J as prescribed [[in sections sixteen hundred and
ninety-five, sixteen hundred and ninety-seven, sixteen hundred
and ninety-nine, and seventeen hundred and twelve of this act;]
in this article [except that], the sureties in the undertaking
[must] to be approved by the justice.

[Code, § 2920, omitting the references to sections, which are
re-enacted herein, post. ]
948 Reporr or Jornt Lua@isuative ComMirrer

§ 126. Affidavit. The affidavit, to be delivered to the [sheriff,]
justice as prescribed in the last section, must particularly describe
the chattel to be replevied, and must contain the following alle
gations:

1. That the plaintiff is the owner of the chattel, or is entitled ;
to the possession thereof, by virtue of a special property therein ;
the facts with respect to which must be set forth.

2. That it is wrongfully detained by the defendant.

3. The alleged cause of the detention thereof according to the
best knowledge, information and belief of the person making the
affidavit.

4, That it has not been taken by virtue of a warrant against the
plaintiff for the collection of a tax, assessment or fine issued in
pursuance of a statute of the state or of the United States; or, if it
has been-taken under color of such a warrant, either that the tak-
ing was unlawful, by reason of defects in the process or other
causes specified, or that the detention is unlawful, by reason of
facts specified which have subsequently occurred.

5. That it has not been seized by virtue of an execution or war-
rant of attachment against the property of the plaintiff or of any
person from or through whom the plaintiff has derived title to the
chattel since the seizure thereof; or, if it has been so seized, that
it was exempt from the seizure, by reason of facts specified, or that
its detention is unlawful, by reason of facts specified which have
subsequently occurred. _

6. Its actual value.

[Code, § 1695, without change, except as indicated; made
applicable to justice court practice by Code, § 2920.]

§ 127. Where several chattels are to be replevied. Where the
affidavit describes two or more chattels of the same kind, it must
state the number thereof, and where it describes a chattel in bulk,
it must state the weight, measurement or other quantity. Where
it describes two or more chattels to be replevied, it may, at the
election of the plaintiff, state the aggregate value of all; or, sepa-
rately, the value of any chattel or of any class of chattels, and the
ageregate value of the remainder, if any. Where it states sepa-
rately the value of one or more chattels or classes of chattels, the
defendant may require, as prescribed in the following provisions
of this article, the return of any or all of the chattels or classes of
chattels, the value of which is thus stated, or of the portion thereof
Justice Court Act 949

which has been replevied. If he procures such a return, the
remainder must be delivered to the plaintiff, except as is otherwise
prescribed in ‘this article.

[Code, § 1697, without change, made applicable to justice court
practice by Code, § 2920.]

§ 128. Plaintiff’s undertaking for replevin. The undertaking
to be delivered to the [sheriff,] justice with a requisition to
replevy a chattel must be executed by at least two sureties.[, who
must be approved by the sheriff.J It must be to the effect that
the sureties are bound in a specified sum, not less than twice the
value of the chattel as stated in the affidavit, for the prosecution
of the action; for the return of the chattel to the defendant, if
possession thereof is adjudged to him, or if the action abates, or
is discontinued, before the chattel is returned to the defendant;
and for the payment to the defendant of any sum which the judg-
ment awards to him against the plaintiff.

[Code, § 1699, substituting “justice” for “ sheriff.” The
provision requiring approval omitted, because included in general
section on this subject, post, § 499. ]

§ 129. When agent may make affidavit for replevin or return.
The affidavit, to be delivered to the [sheriff] justice in behalf of
the plaintiff with a requisition to replevy a chattel, may be made
by the plaintiff’s agent or attorney, if the material facts are
within his personal knowledge; or if the plaintiff is not within
the county where the attorney resides or has his office, or is not
capable of making the affidavit. The affidavit, to be delivered
to the [sheriff,] justice either in behalf of the defendant, with a
notice that he requires the return of the chattel, or in behalf of a
person not a party who makes a claim [as prescribed in section
seventeen hundred and nine of this act,] thereto may be made
by an agent or attorney, if the material facts are within his per-
sonal knowledge, or if the defendant or claimant, as the case may
be, is not within the county where the property was replevied
and capable of making the affidavit. Where the affidavit is made
by an attorney or agent he must state therein what allegations,
if any, are made upon his information and belief; and he must
set forth therein the grounds of his belief as to all matters not
950 Report or Joint LeGisuatTiveE CoMMITTEE

stated upon his knowledge, and the reason why the affidavit is not
made by the party or the claimant.

[Code, § 1712, without change, except as to officers; made
applicable to justice court practice by Code, § 2920. ]

§ 130. Requisition. Upon receiving the affidavit and under-
taking the justice must indorse upon or attach to the affidavit a
written requisition, subscribed by him, requiring the constable
to whom the summons is delivered to replevy the property
described in the affidavit on or before a day specified in the
requisition which must be at least six days before the return day
of the summons. The affidavit and requisition must be delivered
to the constable with the summons.

[Code, § 2921, without change. ]

§ 131. How chattel to be replevied. If any chattel described
in the affidavit is found in the possession of the defendant, or
of his agent, the [sheritf,] constable to whom an affidavit,
requisition and [undertaking] summons are delivered, as
prescribed in the foregoing sections of this article, must forth-
with replevy it by taking it into his possession. [He must there
upon, without delay, serve on the defendant a copy of the affidavit,
requisition, and undertaking, by delivering the same to him per-
sonally, if he can be found within the county; or, if he cannot
be so found, to his agent, if any, from whose possession the chattel
is taken; or, if neither can be found within the county, by leav-
ing the copy at the usual place of abode of either, with a person
of suitable age and discretion. ]

[Code, § 1700, omitting last sentence; made applicable to
justice court practice by Code, § 2922.]

§ 132, Chattel; how taken from a building. If any chattel
described in the affidavit is secured or concealed in a building or
inclosure, the [sheriff] constable must publicly demand its de-
livery. If it is not delivered pursuant to the demand, he must
cause the building or inelosure to be broken open and must take
the chattel into his possession.

[ Code, § 1701, without change except as to officers; made ap-
licable to justice court practice by Code, § 2922.]
Pp Pp 2
Justice Court Act 951

§ 138. Service of papers on defendant. The constable must
immediately after he replevies the property, and at least six days
before the return day of the summons, serve the summons, aff-
davit, requisition and undertaking on the defendant by deliver-
ing to him personally a copy of each, if he can with reasonable
diligence be found within the county; or if he cannot be so found,
by leaving a copy of each, certified by the constable, at the last
place of residence of the defendant in the county with a person
of suitable age and discretion; or if such person cannot be found
there, by posting it on the outer door; and also depositing another
copy in the nearest post-office inclosed in a sealed post-paid
wrapper directed to the defendant at his residence; or if the
defendant has no place of residence in the county, by delivering

it to the person in whose possession the property replevied is
found.

[Based on Code, § 2910. See § 29292.]

§ 134, Replevied chattel; how kept. A [sheriff,] constable
who has replevied a chattel must retain it in his possession, keep-
ing it in a secure place, until the person who is entitled to the
possession thereof is ascertained, as prescribed in this article.
He must then deliver it to that person, upon request and payment
of his lawful fees, and necessary expenses for taking and keeping
it, as taxed by a judge of the court, or the county judge of the
county where the chattel was replevied, upon such a notice as
the judge deems proper.

[Code, § 1702, without change, except as to officers, made
applicable to justice court practice by Code, § 2922. ]

§ 135, Return of constable. The constable must, on or before
the return day of the summons, make a return to the requisition
under his hand stating all his proceedings thereupon, and file it
with the affidavit and requisition with the justice. The return
must state the manner in which the summons, affidavit and
requisition were served; and, if they were served otherwise than
by delivering the requisite copies to the defendant personally, the
reason therefor, and the name of the person to whom the copies
were delivered, unless his name is unknown to the constable; in
which case, the return must describe him so as to identify him,
as nearly as may be.

[Code, § 2923, without change. ]
952 Revort or Joint LeGisLative CoMMITTEE

§ 136. Defendant may except to sureties; proceedings thereon.
At any time after the chattel has been replevied and at least two
days before the return day of the summons, the defendant, unless
he requires a return of the chattel, may serve upon the plaintiff,
or upon the constable, a written notice that he excepts to the
plaintiff’s sureties; otherwise he is deemed to have waived all
objections to them. If such a notice is served, the sureties
must justify upon the return of the summons; or the plaintiff
must then give a new undertaking to the same effect as the
original undertaking, with other sureties, who must then appear
and justify before the justice.

[Code, § 2924, without change. ]

§ 137. Defendant may reclaim chattel; proceedings thereon. At
any time before the return day of the summons the defendant
may, if he does not except to the plaintiff’s sureties, serve on the
justice a notice that he requires the return of the chattel replevied.
With the notice he must deliver to the justice the following
papers:

1. An affidavit containing an allegation either that the defend-
ant is the owner of the chattel, or that he is lawfully entitled to
the possession thereof by virtue of a special property therein, the
facts with respect to which must be set forth.

2. An undertaking executed by at least two sureties to the
effect that they are bound in a specified sum, not less than twice
the value of the chattel as stated in the affidavit of the plaintiff,
for the delivery thereof to the plaintiff if delivery thereof is
adjudged, and for the payment to him of any sum which the
judgment awards against the defendant. The sureties in the
undertaking must justify before the justice on the return of the
summons. If the plaintiff has stated separately in his affidavit
the value of one or more chattels or classes of chattels, as pre-
scribed in section [1697] one hundred and twenty-seven, the
defendant may require a delivery of part of the property replevied,
as prescribed in that section.

[Code, $§ 1704, 2925, combined, omitting provisions not appli-
cable to justices’ courts. ]

§ 138, Claim of title by third person. At any time before a
chattel which has been replevied is actually delivered to either
Justice Court Act 958

party, if a person, not a party to the action, claims, as against
the defendant, a right to the possession thereof existing at the
time when it was replevied, an affidavit may be made and
delivered to the [sheritf,] constable in his behalf, stating that
he makes such a claim; specifying the chattel or chattels to
which it relates, if two or more chattels have been replevied,
and the claim relates only to part of them; and setting
forth the facts upon which his right of possession depends. In
that case, the [sheriff] constable may in his discretion before he
delivers the chattel to the plaintiff serve upon the plaintiff per-
sonally or upon plaintiff’s attorney a copy of the affidavit with a
notice that he requires indemnity against the claim. If the
indemnity is not furnished within a reasonable time after the
plaintiff becomes entitled to the delivery of the chattel the
[sheriff] constable may in his discretion deliver it to the claim-
ant without incurring any liability to the plaintiff by reason of
so doing.

[Code, § 1709, without change, except as to officers; made
applicable to justice court practice by.Code, § 2929. ]

§ 139, Action against constable upon such claim. A person, not
a party to the action, who has served an affidavit, as prescribed
in the last section, may maintain an action against the [sheriff]
constable who has delivered the chattel to the plaintiff to recover
his damages by reason of the taking, detention or delivery of the
chattel. But the summons in such an action must be issued
within three months after the delivery of the chattel to the
plaintiff, and must be served within three months after it is
issued. An action cannot be maintained against a [sheriff,]
constable by a person so entitled to make a claim except as pre-
scribed in this section.

[Code, § 1710, without change, except as to officers; made
applicable to justice court practice by Code, § 2929. ]

§ 140. Indemnity to constable against such action. The indem-
nity to be furnished to the [sheriff] constable by the plaintiff,
as prescribed in the last section but one, must consist of a written
undertaking to him executed by at least two sureties to the effect
that they will indemnify him against any liability for damages,
costs or expenses to be incurred in an action brought against him
954 Report or Jornr Lecistative CoMMITTEE

by the claimant, or a person deriving title from or through the
claimant, by reason of the taking or detention of the chattel, or
its delivery to the plaintiff, not exceeding a sum to be specified in
the undertaking which must be [at least five hundred dollars,
and] not less than the actual value of the chattel claimed, and
two hundred and fifty dollars in addition thereto, except that,
im any case, it need not exceed three hundred dollars. Each of
the sureties, besides possessing the other qualifications required
by law, must be a freeholder or a householder of the [sheriff’s]
constable’s county. The [sheriff,] constable before delivering
the chattel may require the persons offered as sureties to submit
to an examination, before the officer who takes the acknowledg-
ment of the undertaking, as where persons are offered to him as
bail upon an arrest. The sureties are entitled to be substituted
as defendants in an action, brought as prescribed in the last sec-
tion, as if the chattel had been levied upon by virtue of an
execution.

[Code, § 1711, without change except as to officers, and the
limitation on the amount of the undertaking; made applicable to
justice court practice by Cede, § 2929.]

§ 141. Justification of sureties. [Except as otherwise expressly
prescribed in this article, the examination and qualifications of
the sureties, and the allowance of the undertaking, upon a justi-
fication pursuant to either of the last two sections, must be the
same as upon a justification of bail, as prescribed in sections five
hundred and seventy-nine, five hundred and eighty, and five hun-
dred and eighty-one of this act, substituting the justice for the
judge; but after such allowance, the undertaking must be filed
with the justice] The examination of the sureties on a justifi-
cation pursuant to the provisions of this article, must be on five
days’ notice to the persons who: executed the undertaking. For
the purpose of justification, each of the sureties must attend
before the justice at the time and place mentioned in the notice,
and be examined on oath touching his sufficiency, in such manner
as the justice thinks proper. If the justice finds the sureties
sufficient, he must annex the examination to the undertaking and
endorse his allowance thereon, and file them in his office. The
constable is thereupon exonerated from liability.

[Substitute for Code, § 2926. ]
Justice Court Act 955

§ 142. Damages when chattel is injured by defendant. Where
the plaintiff recovers a chattel which was injured, or otherwise
depreciated in value, while it was in possession or under the
control of the defendant, under such circumstances that the
plaintiff might recover damages for the injury or depreciation in
an action brought against the defendant therefor, he may recover
the same damages in an action brought as prescribed in this
article. In that case, he must set forth the facts in his complaint
and demand judgment for damages accordingly.

[Code, § 1722, without change; made applicable to justice
court practice by Code, § 2931.]

§ 143. When and to whom constable must deliver. If the defend-
ant neither excepts to the plaintiffs sureties nor requires the
return of the chattel within the time prescribed for that purpose,
or if he fails to procure the allowance of his undertaking, or if
the plaintiff, after the defendant has excepted to his sureties,
duly procures the allowance of his undertaking, the constable must,
except in the case specified in [the next] section [but one] one
hundred and thirty-eight, immediately deliver the chattel to the
plaintiff. If the plaintiff, after the defendant has excepted to his
sureties, fails to procure the allowance of his undertaking, or if
the defendant, after he has required the return of the chattel,
procures the allowance of his undertaking, the constable must
immediately deliver the chattel to the defendant.

[Code, § 2927, without change. ]

§ 144. Penalty for wrong delivery by constable. A constable
who delivers to either party, without the consent of the other,
a chattel replevied by him, except as prescribed in the last sec-
tion, or, by virtue of an execution issued upon a judgment in the
action, forfeits to the party aggrieved the sum of one hundred
dollars; and is also liable to him for’ all damages which he
sustains thereby.

[Code, § 2928, without change. ]

§ 145. Defendant may demand judgment for return. Where a
chattel has been replevied and the defendant has not required the
return thereof pending the action, as prescribed in the foregoing
sections of this article, he may in his answer demand judgment
956 Report or Jornt Leaisuative Commirrer

for the return thereof either with or without damages for the
taking, withholding or detention.

[Code, § 2930, without change. ]

§ 146. Verdict. The verdict[[, report, or judgment [decision]
must fix the damages, if any, of the prevailing party. Where
it awards to the plaintiff a chattel which has not been replevied, or
where it awards to the prevailing party a chattel which has been
replevied and afterwards delivered by the [sheriff] constable to
the unsuccessful party or to a person not a party, it must also,
except in a case specified in the next section, fix the value of the
chattel at the time of the trial.

[Code, § 1726, without change, except as to officers, and sub-
stituting “ judgment” for “report or decision”; made applicable
to justice court practice by Code, § 2931.]

§ 147, Substitute in certain cases for finding as to value. A
verdict, report, or judgment [decision] in favor of the defend-
ant shall not fix the value of the chattel in either of the following
cases :

1. Where the plaintiff is the general owner of the chattel; but
it was rightfully distrained doing damage, and its value is greater
than the damages sustained by the defendant, by the injury for
which it was distrained; in which case, those damages must be
fixed.

2. Where the plaintiff is the general owner of the chattel, but
the defendant had a special property therein, and the value of
the chattel is greater than the value of the special property, or
the sum charged upon the chattel by reason thereof; in which
case, the value of the special property, or the sum so charged,
must be fixed.

In either of the cases specified in this section, the verdictff,
report, or judgment [decision] must set forth the reason why
the value of the chattel is not fixed.

[Code, § 1727, without change, except substituting “ judg-
ment” for “report or decision”; made applicable to justice court
practice by Code, § 2931.]

§ 148. Final judgment. Final judgment for the plaintiff in
replevin must award to him possession of the chattel recovered by
Justice Court AotT 957

him with his damages, if any. If a chattel recovered was not
veplevied, or if, after it was replevied, it was delivered to the
defendant, or to a person not a party, as prescribed in this article,
the final judgment must also award to the plaintiff the sum fixed
as the value thereof, to be paid by the defendant if possession
thereof is not delivered to the plaintiff. If the defendant has
demanded judgment for the return of a chattel which was
replevied and afterwards delivered to the plaintiff, or to a person:
not a party, as prescribed in this article, final judgment in his
favor therefor must award to him possession thereof with his
damages, if any; and it must also award to him the sum fixed as
the value thereof, to be paid by the plaintiff if possession is not
delivered to the defendant. But if the case is one [of those
specified in section seventeen hundred and twenty-seven of this
act,] where the verdict or judgment is not required to fix the
value of the chattel, final judgment in favor of the defendant
must award to him the sum fixed as therein specified, and, if it
is not collected, the delivery of the chattel; or, if the chattel has
uot been replevied or has been returned to him after replevin,
that he is entitled to possession thereof until the sum so awarded
is collected, or otherwise paid. [The judgment may be docketed,
and the docket thereof creates a lien, as if it was a judgment for
the full amount of the money, including costs, which it awards,
either absolutely or conditionally.]

[Code, § 1730, without change, except in phraseology, as indi-
eated and omitting the last sentence; made applicable to justice
court practice by Code, § 2931.]

§ 149. Execution in replevin. An execution for the delivery of
[the possession of real property, or] a chattel must particularly
describe the property and designate the party to whom the judg-
ment awards the possession thereof; and it must substantially
require the [sheriff,] constable to deliver the possession of the
property within his county to the party entitled thereto. If a
sum of money is awarded by the same judgment, it may be col-
lected by virtue of the same execution; or a separate execution
may be issued for the collection thereof, omitting the direction to
deliver possession of the property. If one execution is issued for
both purposes, it must contain, with respect to the money to be
collected, the same directions as an execution against property, or
against the person, as the case requires. An execution for the
958 Rervort or Jornr Leaisiative CoMMIrrer

delivery of the possession of a chattel and to satisfy, out of the
property of the judgment debtor, a sum of money contingently
awarded against him, must contain, in addition to the other
matters prescribed by law, the following directions:

1. Where the judgment is rendered in favor of the defendant
in a case specified in section [seventeen hundred and twenty-
seven] one hundred and forty-seven of this act, the execution
‘must require the [sheriff] constable to deliver possession of the
chattel to the defendant, unless the plaintiff, before the delivery,
pays to him the sum of money awarded to the defendant with
interest and the [sheriff’s] constables’s fees; and, in case the
chattel cannot be found within his county, then to satisfy that
sum out of the property of the plaintiff.

2. In any other case, where the judgment awards a sum of
money, if possession of the chattel is not delivered to the pre-
vailing party, the execution must require the [sheriff,] constable,
if the chattel cannot be found within his county, to satisfy the
sum so awarded with interest and his fees out of the property of
the party against whom the judgment is rendered. A direction
to satisfy a sum of money out of property, as prescribed in this
section, must be in the form required by law for a like direction,
where an execution against property is issued upon a judgment
for a sum of money.

[ Code, §§ 1873 and 1731 combined, without change, except as
to officers; made applicable to justice court practice by Code,
§ 2931.]

§ 150, Constable’s power to take chattel. For the purpose of
taking pussession of a chattel by virtue of [such] an execution,
the powers of the [sheriff] constable are the same as where he is
required to replevy a chattel.

[Code, § 1732, without change except as to officer; made
applicable to justice court practice by Code, § 2931. ]

§ 151, Action on undertaking. A plaintiff who has recovered
a final judgment cannot maintain an action against the sureties
in an undertaking given in behalf of the defendant to procure a
return of the chattel [or against the bail of a defendant, who has
been arrested,] until after the return, wholly or partly unsatis-
fied or unexecuted, of an execution in his favor for the delivery
of the possession of the chattel, or to satisfy a sum of money out
Justicr Courr Act 959

of the property of the defendant, or for both purposes, as the case
requires. A defendant who has recovered a final judgment cannot
maintain an action against the sureties in the plaintiff’s under
taking given to procure a replevin until after a like return of a
similar execution against the plaintiff.

[Code, § 1733, without change except as indicated; made
applicable to justice court practice by Code, § 2931. ]

§ 152. Constable’s return as evidence. In [such] an action against
the sureties in an undertaking given in replevin the [sheriff’s]
constable’s return to the execution is presumptive evidence of a
failure to deliver, or to return a chattel, or to pay a sum of money,
according to the terms of the undertaking.

[ Code, § 1734, without change except as to officer; made appli-
cable to justice court practice by Code, § 2931.]

§ 153, Injury no defense. It is not a defense to [such] an
action on the undertaking in replevin that the chattel was injured
or destroyed after it was replevied, unless the injury or destruc-
tion was effected by the act, or with the consent of the plaintiff in
the action, or occurred after the chattel was taken by virtue of
the execution.

[Code, § 1735, without change; made applicable to justice
court practice by Code, § 2931.]

§ 154, Proceedings when summons not personally served. Where
the defendant does not appear, and the summons has not been
personally served upon him, and a chattel, or part of a chattel,
to recover which the action is brought, has been replevied, and
the proceedings thereupon have been duly taken, as prescribed in
this article, the justice must proceed to hear and determine the
action, with respect to that chattel or part of a chattel; or, if the
action is brought to recover two or more chattels, with respect to
those which have been replevied, in like manner and with like
effect as if the summons had been personally served.

[Code, § 2932, without change. ]

§ 155. When action not affected by failure to replevy. Where
the summons has been personally served upon the defendant, or
960 Report or Jornt LEGISLATIVE COMMITTEE

where he appears, the justice must proceed to hear and determine
the action, although the plaintiff has not required the chattel to
be replevied, or the constable has not been able to replevy it.

[Code, § 2933, without change. ]

Section 160.
161.
162.
168.
164.
165.
166.
167.
168.
169.
170,
171.
172.
173.
174,
175.
176.
177.

178.

179.
180.
181.
182.
183.
184.
185.
186.
187.
188.
189.

ARTICLE 7
PLEADING

When issue to be joined.

Pleadings.

General rules of pleading.

First pleading to be complaint.

Complaint.

What causes of action may be joined.

Defendant must demur or answer.

When he may demur.

Demurrer to complaint must specify objection.

Demurrer and answer to same complaint.

Decision on demurrer.

Answer to verified complaint.

Answer to unverified complaint.

Counterclaim.

Rules respecting allowance of counterclaim.

Consequence of neglect to plead counterclaim.

The last section qualified.

Counterclaim when defendant is sued in a repre-
sentative capacity.

Counterclaim when plaintiff is an executor or
administrator.

When plaintiff may demur to answer.

Demurrer to counterclaim.

Demurrer to counterclaim must specify stlection:

When objection may be taken by answer.

Objection; when deemed waived.

Account, or instrument for payment of money.

When complaint may be verified.

When answer to be verified.

Requirements concerning verified pleadings.

Verification; how and by whom made.

Form of affidavit of verification.
Justice Courr Act 961

Section’190. Remedy for defective verification, or want of veri-

fication.

191. When allegations deemed admitted.

192. Amendment of pleadings.

193. Account; how pleaded; bill of particulars.

194, Private statute; how pleaded.

195. Pleading mitigating circumstances in action for a
wrong.

196. Judgments; how pleaded.

197. Conditions precedent; how pleaded.

198. Pleadings to be liberally construed.

199. Material variances; how provided for.

200. Immaterial variances; how provided for.

201. What to be deemed a failure of proof.

202. Partial defenses.

203. When defendant to demand affirmative judgment.

204. When pleadings admit part of plaintiff’s claim to
be just, action may be severed.

205. Complaint in actions by or against corporations.

206. Misnomer, when waived.

§ 160. When issue to be joined. Pleadings must be made and
issue joined :

1. At the place and within one hour after the time specified
in the summons for the return thereof; or

2. Where an order of arrest has been executed, within twelve
hours after the defendant is brought before the justice; or

3. Where no summons is issued, within one hour after the
time when the parties voluntarily appear for the purpose of com-
mencing an action, unless the defendant within such time files
with the justice a stipulation that the plaintiff may take judg-
ment as therein stated.

Where both parties appear on the return of the summons, an
issue must be joined before an adjournment is had, except when
the defendant refuses or neglects to plead.

[First part of Code, § 2934, rewritten, without intended
change of substance, except that in subdivision 3 a provision
is added dispensing with an answer if the defendant stipulates
a judgment. The remainder of the existing § 2934 is omitted on
the ground that it is a local provision applicable only in the
former city of Brooklyn. The courts to which it refers -were
abolished by § 1350 of the Greater New York charter. ]

31
962 Revorr or Joint LEGISLATIVE COMMITTEE

§ 161. Pleadings. The pleadings in a justice’s court are:

1. The plaintiffs complaint;

2. The defendant’s answer;

3. The defendant’s demurrer to the complaint, or to one or
more distinct causes of action, separately stated therein ;

4, The plaintiff’s demurrer to the answer, or to one or more
defenses or counterclaims stated in the answer.

[Code, § 2935, without change, except that the plaintifi’s
right to demur is extended to any defense or counterclaim. |

§ 162. General rules of pleading. A pleading, except as other-
wise prescribed in section [twenty-nine hundred and fifty-one]
two humdred and ten of this act, may he oral or written. If it
is oral the substance thereof must be entered by the justice in
his docket-book, if it is written it must be filed by him and a
reference to it made in his docket-book. A pleading is not re
quired to be in any particular form; but it must be so expressed
as to enable a person of common understanding to know what is
intended,

[Code, § 2940, without change. ]

§ 163, First pleading to be complaint. The first pleading on the
part of the plaintiff is the complaint. :

[Code, § 478, without change. ]

§ 164. Complaint. The complaint must state in a plain and
direct manner the facts constituting the cause of action. [In an
action arising on contract for the recovery of money only, or on
an account, the plaintiff or his agent, at or before the time of the
issuing of the summons, may make a written complaint as above
provided, specifying the amount actually due the plaintiff from
the defendant, and praying judgment for the amount so due,
which said complaint shall be signed by the plaintiff or his agent
and verified in the manner and as provided bv section five hun-
dred and twenty-six of this code. Said summons and complaint
shall be attached and shall be served upon the defendant by
delivering to and leaving with him, personally, true copies thereof,
not less than six nor more than twelve days before the return
day of said summons; and the official certificate of the constable
making such service shall be sufficient evidence thereof. ]

[ Code, § 2936, first sentence. The remainder of the section is
covered by § 185, post, and other provisions hereof. ]
Justice Courr Act 963

§ 165, What causes of action may be joined. The plaintiff may
unite in the same complaint two.or more causes of action where
they all arise out of:

1. The same transaction or transactions connected with the
same subject of action; or

2. Contract, express or implied; or

8. Personal injuries, and injuries to property, or either.

But it must appear upon the face of the complaint that all the
causes of action so united belong to one of the foregoing sub-
divisions of this section; that they are consistent with each other;
that they require the same judgment; and, except as otherwise
prescribed by law, that they affect all the parties. [[Where a
cause of action, for which a defendant might be arrested, is
united with a cause of action, for which he cannot be arrested,

an execution against the person of the defendant cannot be issued
upon the judgment.]

[ Code, § 2937, without change, except that the last sentence is

omitted here and transferred to the article on executions.
§ 364.]

See
§ 166. Defendant must demur or answer. The only pleading on
the part of the defendant is either a demurrer or an answer.

[Code, § 487, without change. ]

§ 167. When he may demur. The defendant may demur to the
complaint where one or more of the following objections thereto
appear upon the face thereof:

1. That the court has not jurisdiction of the person of the
defendant.

2. That the court has not jurisdiction of the subject of the
action.

3. That the plaintiff has not legal capacity to sue.

4, That there is another action pending between the same
parties for the same cause.

5. That there is a misjoinder of parties plaintiff.

6. That there is a defect of parties, plaintiff or defendant.

7. That causes of action have been improperly united.

8. That the complaint does not state facts sufficient to con-
stitute a cause of action.

[Code, § 488, without change. ]
964 Report or Jormnr Leaisiative Commitrrer

§ 168, Demurrer to complaint must specify objection. The
demurrer must distinctly specify the objections to the com-
plaint; otherwise it may be disregarded. An objection taken
under subdivisions one, two, three, four or eight of the last section
may be stated in the language of the subdivision; an objection
taken under either of the other subdivisions must point out
specifically the particular defect relied on.

[Code, § 490, without change. ]

§ 169, Demurrer and answer to same complaint. The defendant
may demur to the whole complaint or to’ one or more separate
causes of action stated therein. In the latter case he may answer
the causes of action not demurred to.

[Code, § 492, without change. ]

§ 170. Decision on demurrer. [In a case specified in subdi-
vision third or fourth of section twenty-nine hundred and thirty-
five of this act, a party may demur to the pleading of the adverse
party, or, if it is a complaint, to one or more distinct and separate
causes of action, where it is not sufficiently explicit to be under-
stood; or where it does not state facts sufficient to constitute a
cause of action, or counterclaim, as the case may be.}~ If the
court deems the demurrer well founded, it must permit the plead-
ing to be amended; and if the party fails so to amend, the defect-
ive pleading, or part of a pleading, demurred to must be disre-
garded. If the court deems the demurrer not well founded, it must
permit the party making it to plead over, at his election.

[Code, § 2939, last two sentences, without change. The grounds
of demurrer are fully stated in § 167, ante, and omitted here. |

§ 171, Answer to verified complaint. [The] Jf the complaint is
verified, the answer of the defendant must contain:

1. A general or specific denial of each material allegation of
the complaint controverted by the defendant, or of any knowledge
or information thereof sufficient to form a belief ;

2. A statement of any new matter constituting a defense or
counterclaim in ordinary and concise language without repetition.

[Code, § 500, without change, except that it is limited to veri-
fied complaints. |
Justics Court Act 965

§ 172, Answer to unverified complaint. [The] If the complaint
ts not verified, the answer may contain a general denial of each
allegation of the complaint or a specifie denial of one or more of
the material allegations thereof. It may also set forth in a plain
and direct manner new matter constituting one or more defenses
or counterclaims. [In case the defendant appears and answers
in an action in which a verified complaint has been served, his
answer shall be in writing and shall be verified as above provided
for the verification of the complaint.J

[Code, § 2938, first two sentences, without change, except lim-
ited to answers to unverified complaints. The last sentence is
covered by § 186, post. ]

§ 173. Counterclaim. [The] A counterclaim[,, specified in the
-last section, J must tend in some way to diminish or defeat the
plaintiff's recovery and must be one of the following causes of
action against the plaintiff, or, in a proper case, against the person
whom he represents, and in favor of the defendant, or of one or
more defendants, between whom and the plaintiff a separate judg-
ment may be had in the action:

1. A cause of action arising out of the contract or transaction
set forth in the complaint as the foundation of the plaintiff’s
elaim or connected with the subject of the action.

2. In an action on contract, any other cause of action on con-
tract existing at the commencement of the action.

[Code, § 501, without change of substance; made applicable to
justice court practice by Code, § 2945. ]

§ 174. Rules respecting allowance of counterclaim. But the
counterclaim, specified in subdivision second of the last section,
is subject to the following rules:

1. If the action is founded upon a contract which has been
assigned by the party thereto other than a negotiable promissory
note or bill of exchange, a demand, existing against the party
thereto, or an assignee of the contract, at the time of the assign-
ment thereof, and belonging to the defendant in good faith before
notice of the assignment, must be allowed as a counterclaim to the
amount of the plaintiff’s demand, if it might have been so allowed
against the party or the assignee while the contract belonged to
him.
966 Report or Jormnt Leaisnatrve ComMMITTEE

2. If the action is upon a negotiable promissory note or bill of
exchange which has been assigned to the plaintiff after it became
due, a demand, existing against a person who assigned or trans-
ferred it after it became due must be allowed as a counterclaim
to the amount of the plaintiff’s demand, if it might have been so
allowed against the assignor while the note or bill belonged to him.

3. If the plaintiff is a trustee for another or if the action is in
the name of a plaintiff who has no actual interest in the contract
upon which it is founded, a demand against the plaintiff shall not
be allowed as a counterclaim; but so much of a demand existing
against the person whom he represents, or for whose benefit the
action is brought, as will satisfy the plaintiff’s demand must be
allowed as a counterclaim, if it might have been so allowed in an
action brought by the person beneficially interested.

4. The court must have jurisdiction of a cause of action founded
on the counterclaim.

[Code, § 502, without change. Subd. 4 is the last sentence of
Code, § 2945. Code, § 502, is made applicable to justice court
practice by Code, § 2945.]

§ 175. Consequence of neglect to plead counterclaim. Where the
defendant in an action to recover damages upon or for breach of a
contract neglects to interpose a counterclaim consisting of a cause
of action in his favor to recover damages for a like cause which
might have been allowed to him upon the trial of the action, he,
and every person deriving title thereto through or ‘from him, are
forever thereafter precluded from maintaining an action to recover
the same or any part thereof.

[Code, § 2947, without change. ]

§ 176, The last section qualified. But the prohibition contained
in the last section does not extend to either of the following cases:

1. Where the amount of the counterclaim is two hundred dol-
lars more than the judgment which the plaintiff recovers;

2. Where the counterclaim consists of a judgment rendered
before the commencement of the action in which it might have
been interposed ;

8. Where the counterclaim consists of a claim for unliquidated
damages ;

4. Where the counterclaim consists of a claim upon which
Justice Courr Act 967

another action was pending at the time when the action was com-
menced ;

5. Where judgment is taken against the defendant without
personal service of the summons upon him or an appearance by
him.

[Code, § 2948, without change. ]

§ 177. Counterclaim when defendant is sued in a representative
capacity. In an action against an executor or an administrator,
or other person sued in a representative capacity, the defendant
may set forth as a counterclaim a demand belonging to the
decedent, or other person whom he represents, where the person
so represented would have been entitled to set forth the same in
an action against him.

[Code, § 505, without change; made applicable to justice court
practice by Code, § 2946. This and the following section’ also
cover in effect the limitation of amount of counterclaim in § 2946. ]

§ 178. Counterclaim when plaintiff is an executor or adminis-
trator. In an action brought by an executor or administrator in
his representative capacity, a demand against the decedent, belong-
ing at the time of his death to the defendant, mav be set forth
by the defendant as a counterclaim as if the action had been
brought by the decedent in his life time; and, if a balance is
found to be due to the defendant, judgment must be rendered
therefor against the plaintiff in his representative capacity. Exe
cution can be issued upon such a judgment only in a case where
it could be issued upon a judgment in an action against the
executor or administrator.

[Code, § 506, without change; made applicable to justice court
practice by Code, § 2946. ]

§ 179. When plaintiff may demur to answer. The plaintiff may
demur to a counterclaim or a defense consisting of new matter
contained in the answer on the ground that it is insufficient in law
on the face thereof.

[Code, § 494, without change. ]

§ 180, Demurrer to counterclaim. The plaintiff may also demur
to a counterclaim on which the defendant demands an affirmative
968 Report or Joint Leaistative COMMITTEE

judgment where one or ‘more of the following objections thereto
appear on the face of the counterclaim:

1. That the court has not jurisdiction of the subject thereof ;

2. That the defendant has not legal capacity to recover on the
same ;

3. That there is another action pending between the same parties
for the same cause;

4, That the counterclaim is not of the character specified in
section [501] one hundred and seventy-three.

5. That the counterclaim does not state facts sufficient to con-
stitute a cause of action.

[Code, § 495, without change. ]

§ 181. Demurrer to counterclaim must specify objection. A
demurrer taken under the last section must distinctly specify the
objections to the counterclaim; otherwise it may be disregarded.
The mode of specifying the objections is the same as where a
demurrer is taken to a complaint.

[Code, § 496, without change. ]

§ 182. When objection may be taken by answer. Where any
of the matters enumerated in section [488] one hundred and
sixty-seven as grounds of demurrer do not appear on the face of
the complaint the objection may he taken by answer.

[Code, § 498, without change. ]

§ 183, Objection; when deemed waived. If such an objection
is not taken either by demurrer or answer, the defendant is deemed
to have waived it; except the objection to the jurisdiction of the
court, or the objection that the complaint does not state facts
sufficient to constitute a cause of action.

[Code, § 499, without change. ]

§ 184, Account, or instrument for payment of money. For the
purpose of setting forth a cause of action, defense or counterclaim
founded on an account, or an instrument for the payment of money
only, it is sufficient for the party to deliver the instrument or a
copy of the account to the court, and to state that there is due to
him thereon from the adverse party a specified sum which he
Justice Courr Aor 969

claims to recover or to set off; or he may set forth a copy of the.
instrument and state that there is due to him thereon from the
adverse party a specified sum which he claims. Such an allegation
- equivalent to setting forth the instrument according to its legal
elfect.

[Code, § 584 and § 2941 combined. ]

§ 185. When complaint may be verified. In an action arising
on contract for the recovery of money only, or on an account, the
complaint may be verified and served with the summons.

[Code, § 2936, in part, without change of substance.]

§ 186, When answer to be verified. When a verified complaint
authorized by the last section is served with the summons, the
answer must also be verified.

[Code, § 2938, last sentence, without change of substance. ]

§ 187. Requirements concerning verified pleadings. The allega-
tions or denials in a verified pleading must in form be stated to.
be made by the party pleading. Unless they are therein stated to
be made on the information and belief of the party, they must be
regarded, for all purposes, including a criminal prosecution, as
having been made on the knowledge of the person verifying the
pleading. An allegation that the party has not sufficient knowledge
or information to form a belief with respect to a matter must,
for the same purposes, be regarded as an allegation that the person
verifying the pleading has not such knowledge or information.

[Code, § 524, without change. ]

§ 188. Verification; how and by whom made. The verification
must be made by the affidavit of the party, or, if there are two
or more parties united in interest and pleading together, by at
least one of them who is acquainted with the facts, except as
follows:

1. Where the party is a domestic corporation, the verification
must be made by an officer thereof.

2. Where the people of the state are, or a public officer in their
behalf is, the party, the verification may be made by any person
acquainted with the facts.
970 Report or Jormnt Lea@isLaTiIvE CoMMITTEE

3. Where the party is a foreign corporation ; or where the party
is not within the county where the attorney resides, or, if the
latter is not a resident of the state, the county where he has his
office and capable of making the affidavit; or, if there are two
or more parties united in interest and pleading together, where
neither of them, acquainted with the facts, is within that county
and capable of making the affidavit; or where the action or defense
is founded on a written instrument for the payment of money
only, which is in the possession of the agent or the attorney; or
where all the material allegations of the pleading are within the
personal knowledge of the agent or the attorney; in either case
the verification may be made by the agent of or the attorney for
the party.

[ Code, § 525, without change. ]

§ 189. Form of affidavit of verification. The affidavit of verifica-
tion must be to the effect that the pleading is true to the knowledge
of the deponent except as to the matters therein stated to be alleged
on information and belief, and that as to those matters he believes
it to be true. Where it is made by a person, other than the party,
he must set forth in the affidavit the grounds of his belief as to
all matters not stated upon his knowledge and the reason why
it is not made by the party.

[Code, § 526, without change; made applicable to justice court
practice by Code, § 2936. ]

§ 190. Remedy for defective verification, or want of verification.
The remedy for a defective verification of a pleading is to treat
the same as an unverified pleading. Where the copy of a pleading
is served without a copy of a sufficient verification, in a case
where the adverse party is entitled to a verified pleading, he may
treat it as a nullity, provided he gives notice with due diligence
to the adverse party, or his attorney, that he elects so to do.

[Code, § 528, without change, except that notice must also
be given to the party or his attorney instead of to his attorney
only, as in the Supreme Court. ]

§ 191. When allegations deemed admitted. Each material alle-

gation of the complaint not controverted by the answer must for
the purposes of the action be taken as true; but an allegation
Justice Court Act 971

of new matter in the answer shall be deemed controverted by the
adverse party by traverse or avoidance as the case requires.

[Code, § 522, rewritten, omitting provisions specially applicable
to courts of record. ]

§ 192, Amendment of pleadings. The court must upon appli-
cation allow a pleading to be amended at any time before the trial,
or during the trial, or upon appeal, if substantial justice will be
promoted thereby. Where a party amends his pleading after
joinder of issue, or pleads over upon the decision of a demurrer,
and it is made to appear to the satisfaction of the court, by oath,
that an adjournment is necessary to the adverse party in conse-
quence of the amendment or pleading over, an adjournment must
be granted. The court may also in its discretion require, as a
condition of allowing an amendment, the payment of costs to the
adverse party.

[Code, § 2944, without change. ]

§ 193. Account; how pleaded; bill of particulars. It is not
necessary for a party to set forth in a pleading the items of an
account or demand therein alleged; but the court may on the
request of either party, made when issue is joined, require the
adverse party to exhibit his account or demand or to state the
nature thereof, so far as it is in his power so to do, at that or
another specified time. The court may also direct the party to
deliver a further account where the one delivered is defective
and may in any case direct a bill of the particulars of the claim of
either party to be delivered to the adverse party. If the pleading
is verified, the account or bill of particulars must also be verified
in the same manner as a pleading. Ifa party fails to deliver an
account or bill of particulars as directed, the court may preclude
him from giving evidence of the parts of his account or demand
not so exhibited or stated.

[Code, §§ 531 and 2942, combined and rewritten. The existing
rules on this subject contained in § 2942 are not materially
changed, but some provisions have been added from the Supreme
Court practice as set forth in § 531 of the Code. ]

§ 194, Private statute; how pleaded. In pleading a private
statute, or a right derived therefrom, it is sufficient to designate
972 Report or Joint Leaistative CoMMIrrer

the statute by its chapter, year of passage and title, or in some
other manner with convenient certainty, without setting forth
any of the contents thereof.

[Code, § 530, without change. ]

§ 195, Pleading mitigating circumstances in action for a wrong.
Tn an action to recover damages for a personal injury or an injury
to property, the defendant may prove at the trial facts not amount-
ing to a total defense tending to mitigate or otherwise reduce the
plaintifi’s damages, if they are set forth in the answer, either with
or without one or more defenses to the entire cause of action.

[ Code, § 536, omitting provision “in actions for breach of
promise to marry ”, and also omitting last sentence. 1

§ 196. Judgments; how pleaded. In pleading a judgment or
other determination of a court or officer of special jurisdiction,
it is not necessary to state the facts conferring jurisdiction ; but the
judgment or determination may be stated to have been duly given
or made. If that allegation is controverted the party pleading
must on the trial establish the facts conferring jurisdiction.

[ Code, § 532, without change. ]

§ 197. Conditions precedent; how pleaded. In pleading the per-
formance of a condition precedent in a contract it is not necessary
to state the facts constituting performance; but the party may
state generally that he or the person whom he represents duly
performed all the conditions on his part. If that allegation is
controverted he must on the trial establish performance.

[Code, § 533, without change. ]

§ 198, Pleadings to be liberally construed. The allegations
of a pleading must be liberally construed with a view to substantial
justice between the parties.

[ Code, § 519, without change. ]

§ 199. Material variances; how provided for. A variance
between an allegation in a pleading and the proof is not material:
unless it has actually misled the adverse party to his prejudice in
maintaining his action or defense on the merits. Ifa party insists
that he has been misled, that fact, and the particulars in which
he has been misled, must be proved to the satisfaction of the court,
Justice Court Act 973

Thereupon the court may in its discretion order the pleading to
be amended on such terms as it deems just.

[Code, § 539, without change. Covers also § 2943.]

§ 200, Immaterial variances; how provided for. Where the vari-

ance is not material, as prescribed in the last section, the fact
may be found according to the evidence, or the court may order an
immediate amendment, without costs.

[Code, § 540, without change in substance, but omitting pro-
vision for direction of verdict. ]

§ 201. What to be deemed a failure of proof. Where, however,
the allegation to which the pioof is directed is unproved, not in
some particular or particulars only but in its entire scope and

meaning, it is not a case of variance within the last two sections,
but a failure of proof.

[Code, § 541, without change. ]

§ 202. Partial defenses. A partial defense may be set forth,
but it must be expressly stated to be a partial defense to the entire
complaint, or to one or more separate causes of action therein
set forth. On a demurrer thereto the question is whether it is
sufficient for that purpose. Matter tending only to mitigate or
reduce damages in an action to recover damages for a personal
injury, or an injury to property, is partial defense within the
meaning of this section.

[Code, § 508, without change, except the omission of the pro-
vision relative to actions for breach of promise to marry, of which
a justice has no jurisdiction. ]

§ 203. When defendant to demand affirmative judgment. here
the defendant deems himself entitled to an affirmative judgment
against the plaintiff by reason of a counterclaim interposed by
him, he must demand the judgment in his answer.

[Code, § 509, without change. |

§ 204, When pleadings admit part of plaintiff's claim to be just,
action may be severed. Where the answer of the defendant
expressly or by not denying admits a part of the plaintiff’s claim
974 Report or Joint LEGISLATIVE CoMMITTEE

to be just, the court on the plaintiff’s motion may in its discretion
order that the action be severed; that a judgment be entered for
the plaintiff for the part so admitted; and, if the plaintiff so
elects, that the action be continued with like effect as to the subse-
quent proceedings as if it had been originally brought for the
remainder of the claim. The order must prescribe the time and
manner of the plaintiff’s election. If the plaintiff elects to con-
tinue the action, his right to costs on the judgment is the same
as if it was taken in an action brought for only that part of the
claim. If the plaintiff does not elect to continue the action, costs
must be awarded as on final judgment in any other cause.

[Code, § 511, without change. ]

§ 205. Complaint in actions by or against corporations. In an
action brought by or against a corporation, the complaint must
aver that the plaintiff, or the defendant, as the case may be, is a
corporation ; must state whether it is a domestic corporation or a
foreign corporation ; and, if the latter, the state, country or govern-
ment by or under whose laws it was created. But the plaintiff
need not set forth, or specially refer to, any act or proceeding by
or under which the corporation was created.

[Code, § 1775, without change. ]

§ 206. Misnomer, when waived. In an action or special pro-
ceeding brought by or against a corporation, the defendant is
deemed to have waived any mistake in the statement of the corpo-
rate name, unless the misnomer is pleaded in the answer or other

pleading in the defendant’s behalf.
[Code, § 1777, without change. ]

ARTICLE 8
ANSWER OF TITLE

Section 210. Answer of title.
211. Undertaking.
212. In what court new action to be brought.
213. When action before justice to be discontinued.
214. Effect of failure to give undertaking.
Justice Courr Act 975

Section 215. When title comes in question on plaintiff’s own
showing.
216. Pleadings in new action.
217. Answer of title as to one of several causes of action.

§ 210. Answer of title. The defendant, either with or without
other matter of defense, may set forth in his answer facts showing
that the title to real property will come in question in the action.
Such an answer must be in writing, signed by the defendant, his
attorney or agent, and must be verified if a verified complaint
was served as authorized by the last article. The answer must
be delivered to the justice who must immediately countersign and
deliver it to the plaintiff.

[Code, § 2951, rewritten, without change of substance, except
as to the provision requiring a verified answer, which is new. |]

§ 211. Undertaking. The defendant must also deliver to the.
justice with the answer a written undertaking to the effect that
if the plaintiff within twenty days thereafter deposits with the
justice a summons and complaint in a new action for the same
cause, to be brought in the proper court, the defendant will within
twenty days after the deposit give a written admission of the
service thereof. If the defendant was arrested in the action before
the justice, the undertaking must also provide that he will at all
times render himself amenable to any mandate which may be
issued to enforce a final judgment in the action so to be brought.
If the defendant fails to comply with the undertaking, his sureties
are liable thereon to an amount not exceeding two hundred dollars.

[Code, § 2952, rewritten, but without intended change of
substance. |

§ 212. In what court new action to be brought. A new action
as prescribed in the last section must be brought in the supreme
court, or the county court of the justice’s county, at the plaintiff’s
election.

[Code, § 2953, rewritten, without change of substance, except
that the provision relating to the superior court of Buffalo is
omitted, as that court was abolished by the constitution of 1894. ]

§ 213. When action before justice to be discontinued. Upon
the delivery of the undertaking to the justice, the action before
976 Report or Joint Lecistative ComMitrrEer

him is discontinued and each party must pay his own costs. The
costs so paid by either party must be allowed to him, if he recovers
costs in the new action, to be brought as prescribed in the last
two sections. If the plaintiff fails to deposit with the justice a
summons and complaint in the new action before the expiration
‘of twenty days after the delivery of the undertaking, the defendant
‘may maintain an action against the plaintiff to recover his costs
before the justice.

[Code, § 2954, without change. ]

_ § 214, Effect of failure to give undertaking. If the undertaking

is not delivered to the justice, he has jurisdiction of the action and
must proceed therein; and the defendant is precluded in his
defense from drawing the title in question.

[Code, § 2955, without change. ]

Ԥ 215, When title comes in question on plaintiffs own showing.
If, however, it appears, upon the trial from the plaintiff's own
showing that the title to real property is in question and the title
is. disputed by the defendant, the justice must dismiss the com-
plaint with costs and render judgment against the plaintiff
accordingly.

'" [Code; § 2956, without change. ]

§ 216, Pleadings in new action. In the new action, to be brought
after an action before a justice is discontinued, by the delivery
of an answer and .an undertaking, as prescribed in the last six
sections of this act, the plaintiff must complain for the same cause
of action only upon which he relied before the justice; and the
defendant’s answer must set up the same defense only which he
-made before the justice. If the action is to recover a chattel
which, was replevied in the justice's court, each undertaking given
in the justice’s court continues to be valid in, and is applicable to,
the new action.

» [Code, § 2957, without change. ]

» & 217. Answer of title as to one of several causes of action.
Where, in an action before a justice, the plaintiff has two or more
causes of action and the defense that the title to real property
will come in question is interposed as to one or more, but not as
Justice Court Act 977

to all of them, the defendant may deliver an answer and under-
taking, as prescribed in this article [sections twenty-nine hundred
and fifty-one and twenty-nine hundred and fifty-two of this act],
with respect to the cause or causes of action only in which title
will so come in question. Whereupon the justice must discontinue
the action as to those causes of action only; the plaintiff may
commence a new action therefor in the proper court; and the
original action must proceed as to the other causes.

[Code, § 2958, without change. ]

ARTICLE 9
ADJOURNMENTS

Section 220. Adjournment by justice.

221. -Adjournment on application of plaintiff.

222, Adjournment on application of defendant.

223. Undertaking on adjournment.

224. Undertaking to. procure discharge of defendant
from custody.

225. When defendant to be discharged.

226. Subsequent adjournments.

227. Justice may impose conditions upon adjournment.

228. Adjournment when warrant to attach absent witness
is issued.

229. Adjournment not to exceed ninety days.

§ 220, Adjournment by justice. The justice on his own motion
may adjourn the trial of the action or proceeding not more than
eight days in either of the following cases, but at no other time:

1. On the return of a summons;

2. On the joinder of issue on a voluntary appearance without
the service of a summons, or on the filing of a complaint on such
appearance and the failure of the defendant to file a stipulation
for judgment.

But the justice cannot adjourn the trial on his own motion
where the defendant has been arrested.

[Code, § 2959, rewritten but without intended change of
substance, except to provide regulations concerning adjournments
on a voluntary appearance without process, and also applying the
rule to proceedings.}
978 Report or Jornt Leaisyative ComMMIrrer

§ 221, Adjournment on application of plaintiff. At the time
of the return of a summons, or of the joinder of issue without
process, the justice must, upon the application of the plaintiff,
adjourn the trial of the action, not more than eight days, to a
time fixed by the justice. But such an adjournment shall not
be granted unless the plaintiff or his attorney, if required by the
defendant, makes oath that the plaintiff cannot, for want of some
material testimony or witness specified by him, safely proceed to
trial.

[Code, § 2960, without change. ]

§ 222, Adjournment on application of defendant. At the time
of the joinder of issue, the justice must, upon the application of
the defendant, adjourn the trial of the action upon his complying
with the following requirements:

1. The defendant or his attorney must, if required by the
plaintiff, or by the justice, make oath that he verily believes that
the defendant has a good defense to the action, and that he cannot
safely proceed to trial for want of some material testimony or
witness specified by him.

2. If required by the plaintiff, and the defendant has not been
arrested in the action, an undertaking must be given to the plain-
tiff in behalf of the defendant, as prescribed in the next section.
But such an undertaking need not be given where the action is to
recover a chattel.

Such an adjournment must be for such a reasonable time, fixed
by the justice, as will enable the defendant to procure the testimony
or witness.

[Code, § 2961, without change. |

§ 223. Undertaking on adjournment. Such an undertaking
must be to the effect that if judgment is recovered by the plaintiff,
and an execution thereon is returned wholly or partly unsatisfied.
the sureties will on demand pay the amount due on the judgment,
if before the expiration of ten days after the plaintiff becomes
entitled to an execution, the defendant removes, secretes, assigns
or otherwise disposes of any part of his property liable to levy
or sale by virtue of an execution, except for the necessary support
of himself and his family.

[Code, § 2962, rewritten, but without intended change of
substance. |
Justice Court Acr 979

§ 224. Undertaking to procure discharge of defendant from
custody. Where the defendant has been arrested, the trial must
be adjourned upon his application upon the same terms and in
the same manner as where he has not been arrested; except that
the undertaking prescribed in the last section need not be given.
A defendant who procures such an adjournment must continue,
during the time of adjournment, in the custody of the constable;
unless he gives an undertaking to the plaintiff, with one or more
sureties, approved by the justice, to the effect that, if the plaintiff
recovers judgment in the action, and if an execution is issued
thereupon against the person of the defendant within ten days
after the plaintiff is entitled to the same, and if a return is made
thereto on or after the return day thereof that the defendant cannot
be found, the sureties will pay to the plaintiff the amount due
upon the judgment. If such an undertaking is given, the defeud-
ant must be discharged from custody.

[Code, § 2963, without change. ]

§ 225. When defendant to be discharged. If the trial of an
action in which the defendant has been arrested is adjourned with
the consent of both parties, or upon the application of the plaintiff,
the defendant must be discharged from custody.

[Code, § 2964, without change. ]

§ 226, Subsequent adjournments. The justice must, upon the
application of the defendant, grant a second or subsequent adjourn-
ment of the trial of the action upon the defendant’s giving security,
if required, as prescribed in the foregoing provisions of this article
where he applies for a first adjournment, and upon his proving
by his own oath or otherwise to the satisfaction of the justice that
he cannot safely proceed to trial for want of some material testi-
mony or witness, and that he has used due diligence to obtain
the testimony or witness. But if the defendant has given an
undertaking upon a former adjournment, a new undertaking need
not be given unless it ts required by the justice or by the sureties
in the former undertaking.

[Code, § 2965, without change. |

§ 227, Justice may impose conditions upon adjournment. Upon
granting the defendant’s application for an adjournment where
980 Rerort or Joint LeaisLativE CoMMITrTEer

the trial has been once adjourned, or where the plaintiff is a non-
resident of the county, the justice may, in his discretion, upon
the plaintiff's application, direct that any witness on the part of
the plaintiff who is in attendance be then examined under oath
before the justice. Thereupon the testimony of the witness must
be reduced to writing, certified by the justice, and retained by
him, to be read upon the trial, with the same effect, and subject
to the same objections as if it was then given orally by the
witness.

[Code, § 2966, without change. |

§ 228, Adjournment when warrant to attach absent witness is
issued. Where upon a trial a warrant of attachment is issued to
compel the attendance of a witness who has failed to appear in
obedience to a subpoena, the justice may in his discretion adjourn
the trial for such a time as he deems necessary for the return of
the warrant, not exceeding five days.

[Code, § 2967, without change. ]

§ 229, Adjournment not to exceed ninety days. The trial of
an action shall not be adjourned to a time beyond ninety days
from the joinder of issue without the consent of both parties,
except in one of the following cases:

1. Where a venire has been duly issued, but a jury has not
been procured, so that it is necessary to issue a new venire, or
to summon one or more talesmen, the trial may be adjourned, not
more than two days beyond the ninety days, in order to enable the
jury to be procured.

2. Where a jury has not been able to agree upon a verdict and
is discharged, the trial may be adjourned a sufficient time beyond
the ninety days to enable a new jury to be procured as prescribed
in [title fifth of this chapter.] this act.

3. Where a warrant of attachment has been issued to compel
the attendance of a witness, as prescribed in the last section, or a
warrant has been issued to commit a recusant witness, as pre
scribed in [title fifth of this chapter,] his act, an adjournment
made thereupon, as prescribed by law, is not deemed a part of the
ninety days.

[Code, § 2968, without change. ]
Justice Courr Act 981

ARTICLE 10
PROCURING TESTIMONY

Section 235. When justice may issue subpoena.
236. Subpoena; how served.
237. Warrant of attachment against defaulting witness.
238. Attachment; how executed; fees thereupon.
239. Attachment; when witness is in adjoining county.
240. Fine for refusing to attend, or to testify.
241. Fine; how imposed.
242. Minute of conviction.
243. Execution thereupon.
244. Money collected; how applied.
245. Defaulting witness liable for damages.
246. Production of book of account.
247. Commission to examine witness upon interroga-
tories.
245. Commission without interrogatories.
249. When and how granted.
250. Adjournment.
251. How deposition taken.
252. Execution and return of commission.
253. Certificate of execution.
254, Certificate a sufficient return.
255. Receipt of deposition by justice.
256. Powers of commissioners.
257. When deposition may be suppressed.
258. Deposition as evidence.

§ 235. When justice may issue subpoena. A justice of the peace
may issue a subpoena to compel a witness to attend in the county
where the justice resides or in an adjoining county, but not
otherwise, for the purpose of testifying upon the trial of an
action pending before himself or before another justice. The
subpoena may require the witness, except as otherwise expressly
prescribed by law, to bring with him any book or paper relating
to the merits of the action. But a justice shall not issue a sub-
poena to compel the attendance of a witness before another
justice, unless the person applying therefor proves, by his own
982 Report or Joint LeGisLaTiveE CoMMITTEER

oath or the oath of another person, that an action is actually
pending before the other justice.

[Code, § 2969, without change. ]

§ 236, Subpoena; how served. A subpoena may be served by
a constable or by any other person. It must be served by read-
ing it, or stating its contents, to the witness and by paying or
tendering to him his lawful fee for one day’s attendance as a
witness. Where it is served by a constable, his return thereto,
stating the manner of service and the sum paid, is presumptive
evidence of the facts therein stated.

[Code, § 2970, without change. ]

§ 237. Warrant of attachment against defaulting witness. Where
it is made to appear to the satisfaction of the justice by affidavit
or other proof that a person, duly subpoenaed to attend before
him in an action, has refused or neglected to attend as a witness
in obedience to the subpoena, and no just cause for the neglect
or refusal is shown to exist, and the party in whose behalf the
witness was subpoenaed, or his attorney, makes oath that the
testimony of the witness is material, the justice must issue a
warrant of attachment directed generally to any constable of the
county for the purpose of compelling the attendance of the
witness.

[Code, § 2971, without change. ]

§ 238, Attachment; how executed; fees thereupon. Such a war-
rant of attachment must be executed in the same manner as an
order of arrest. The fees of the justice and constable for issuing
and serving it must be paid by the person against whom it is
issued, unless he shows a reasonable excuse, to the satisfaction
of the justice, for his omission to attend; in which case, the
party procuring the warrant must pay them and, if he recovers
costs, the amount thereof must be allowed to him as part of his
costs.

[ Code, § 2972, without ‘change. ]
§ 239, Attachment; when witness is in adjoining county. Where

the delinquent witness is within an adjoining county, the con-
stable to whom the warrant of attachment is directed may arrest
JusTIcE Court Act 983

the witness in that county and bring him before the justice. The
constable, while he is within the adjoining county for that purpose,
has all the powers of a constable of that county with respect to
the warrant so issued to him.

[ Code, § 2973, without change. ]

§ 240. Fine for refusing to attend, or to testify. A person duly
subpoenaed as a witness who, without a reasonable excuse proved
by his oath or the oath of another person, fails to attend, or,
attending, refuses to testify, must be fined by the justice before
whom the action is pending for each non-attendance or refusal
such a sum, not less than one dollar uor more than ten dollars, as
the justice thinks it reasonable to impose upon him as a fine
therefor.

[Code, § 2974, without change. ]

§ 241, Fine; how imposed. The fine may be summarily imposed
by the justice upon the application of the party in whose behalf
the witness was subpoenaed at any time during the trial when
the defaulting witness is present and has an opportunity to be
heard. If it is not imposed during the trial, the justice, at any
time within five days after judgment is rendered, must, upon the
application of the party, issue a warrant directed generally to
any constable of the county commanding him to arrest the default-
ing witness and to bring him before the justice at a time and
place therein specified, the time to be not more than twelve days
after issuing the warrant, to show cause why a fine should not be
imposed upon him.

[Code, § 2975, without change. ]

§ 242. Minute of conviction. The justice imposing the fine
must enter in his docket-book a minute of the conviction, of the
cause thereof, of the amount of the fine, and of the costs. The
minute is deemed a judgment against the delinquent in favor of
the officer to whom fines are directed to be paid by section
[twenty-eight hundred and seventy-five] twenty-four of this act.

[Code, § 2976, without change. ]

§ 943, Execution thereupon. If the whole amount of the fine
and costs is not forthwith paid to the justice, he must issue an
984 Report or Joint LEGISLATIVE COMMITTEE

execution, directed generally to any constable of the county,
commanding the constable to collect the sum remaining unpaid
of the goods and chattels of the delinquent within the county and,
for want thereof, to take him and convey him to the jail of the
county, there to remain until he pays that sum, not exceeding
thirty days. Upon the delinquent being committed to jail the
keeper thereof must keep him in close custody therein until he
is entitled to a discharge as specified in the execution.

(Code, § 2977, without change. |

§ 244, Money collected; how applied. The money collected by
virtue of the execution must be forthwith paid by the constable
to the justice. The justice must, within ten days after he receives
a fine, or any part thereof, from the constable or the delinquent,
pay the money to the officer to whom the fines are directed to be
paid by section [twenty-eight hundred and seventy-five] twenty-
four of this act for the use of the poor.

[Code, § 2978, without change. ]

§ 245, Defaulting witness liable for damages. A person sub-
poenaed as prescribed in this article who neglects or refuses to
obey the subpoena or to testify, is also liable to the party in
whose behalf he was subpoenaed for all damages which the party
sustains by reason of his neglect or refusal.

[Code, § 2979, without change. ]

§ 246. Production of book of account. A person shall not be
compelled to produce upon a trial or hearing a book of account
otherwise than by an order requiring him to produce it or a
subpoena duces tecum. Such a subpoena must be served at least
five days before the day when he is required to attend. At any
time after service of such a subpoena or order the witness may
obtain, upon such a notice as the [judge, referee, or other officer]
justice prescribes, an order relieving him wholly or partly from
the obligations imposed upon him by the subpoena or the order
for production upon such terms as justice requires touching the
inspection of the book or any portion thereof, or taking a copy
thereof or extracts therefrom, or otherwise. [An order may be
made, as prescribed in this section by a judge of the court, or
in a special proceeding pending out of court before an officer,
Justicr Court Aot » 985

by the officer, or, in either case, by a referee duly appointed in
the cause, and authorized to hear testimony. A justice of the
peace, or other judge of a court not of record,] The justice may
make such an order [in an action brought in his court,]] at any
time after the commencement [thereof.] of the action.

[Code, § 867, so far as applicable to justice court practice. |

§ 247, Commission to examine witness upon interrogatories.
Where the defendant has neglected to appear upon the return
of a summons or has failed to answer the complaint or where
an issue of fact has been joined in an action and it appears
by affidavit upon the application of either party that a witness,
not within the county where the action is pending or ‘an adjoin-
ing county is material in the prosecution or defense of the action,
the justice may award a commission to one or more competent
persons authorizing them, or either of them, to examine the
witness under oath upon interrogatories to be settled by the
justice or by the written agreement of the parties and indorsed
upon or annexed to the commission, to take and certify the
deposition of the witness, and to return the same by mail,
addressed to the justice.

[Code, § 2980, without change. ]

§ 248. Commission without interrogatories. If both parties
expressly. consent, a commission granted as- prescribed in this
article may issue without written interrogatories and the deposi-
tion may be taken upon oral questions. In that case, [section
nine hundred of this act] section two hundred and fifty-one
applies to the execution of the commission, and a copy of that
section must be annexed thereto. Notice of the time or place of
the examination of a witness by virtue thereof need not be given.

[Code, § 2981, without change. ]

§ 249, When and how granted. The commission may be
granted by the justice without notice upon the application of the
plaintiff made at the return of the summons, or upon the appli-
cation of either party made at the time of the joinder of issue.
It may also be granted at any time after the joinder of issue upon
the application of either party, accompanied with proof by
affidavit that six days’ written notice of the application has been
986 Report or Joint LEGISLATIVE COMMITTEE

served upon the adverse party either personally or by service
upon the attorney who appeared for him before the justice.

[Code, § 2982, without change. ] -

§ 250, Adjournment. Where a commission is granted upon the
application of the plaintiff, he is entitled to one or more adjourn-
ments of the trial as may be necessary to procure the commission
to be executed and returned, not exceeding the length of time for
which the trial might be adjourned upon the application of the
defendant.

[Code, § 2983, without change. ]

§ 251. How deposition taken. Upon the examination of a wit-
ness, without written interrogatories, by virtue of a commission,
or of an order to take depositions, the commissioner, or the per-
son before whom the deposition is taken, must take down, or
cause to be taken down, as prescribed in the next section, the sub-
stance of the witness’s testimony; unless he is directed, in the
commission or the order, or required by the person appearing
for either party, to insert in the deposition any or all of the
questions or answers, word for word. Unless the commission or
order otherwise directs, the person appearing for either party
may ask any question which he deems proper, and the witness’s
answer must be taken accordingly, the objections thereto being
reserved without being specified at the time of examination. A
copy of this section must be annexed to each commission to take
testimony without written interrogatories and to each certified
copy of an order to take a deposition.

[Code, § 900, without change; made applicable to justice
court practice by Code, § 2981. ]

§ 252, Execution and return of commission. The person to
whom a commission is directed or before whom a deposition is
taken, unless otherwise expressly directed in the commission or
in the order for taking the depositions, must execute and return
the commission, or the order, as follows:

1. He must publicly administer to each witness examined an
oath or affirmation to testify the truth, the whole truth, and noth-
ing but the truth, as to the matters respecting which the witness
is to be examined.

2. He must reduce the examination of each witness to writing,
Justice Court Act 987

or cause it to be reduced to writing by a disinterested person.
After it has been carefully read to or by the witness it must be
subscribed by the witness.

3. If an exhibit is produced and proved, the exhibit, or, if the
witness or other person having it in his custody does not sur-
render it, a copy thereof, must be annexed to the deposition to
which it relates, subscribed by the witness proving it and num-
bered or otherwise identified in writing thereupon by the com-
missioner or person taking the deposition who must subscribe
his name thereto.

4. The commissioner or person taking the deposition must
subscribe his name to each half sheet of the deposition; he must
annex all the depositions and exhibits to the commission, or to a
certified copy of the order for taking the deposition, with the
certificate specified in the next section; and he must close them
up under his seal, and address the packet to the clerk of the
court at his official residence.

5. If there is a direction on the commission or in the order to
return the same through the post-office, he must immediately
deposit the packet so addressed in the post-office and pay the
postage thereon.

6. If there is a direction on the commission or in the order
to return the same by an agent of the party at whose instance it
was issued or granted, the packet so addressed must be delivered
to the agent.

4. Where a commission is directed to two or more persons, one
or more of them may execute it. [as prescribed in this and the
next section. ]

A copy of this section except subdivision six and of the next
section must be annexed to each commission or order to take
depositions authorized by this article.

[Code, § 901, without change; Code, § 2984 by which § 901
is made applicable to justice court practice. ]

§ 253. Certificate of execution. The commissioner or other per-
son before whom one or more depositions are taken must sub
scribe and annex to each deposition a certificate, substantially
in the following form, the blanks being properly filled up:

“ State (or territory) of ....-.-- se eee eee eee eee
County (or parish) of ......-..++++ +e eee

1,2 patie ones ee , do certify that .......... , the witness,

personally appeared before me on the ...... day of ........ , at

ss.°
988 Report or Joint Lea@isLativeE ComMMITrEE

canara o'clock in the wesdaeut M00H, at the couieease to sym
the state (or territory) Of 2vsscsecsewscnaadsadsaeee ss - and
after, being sworn (or affirmed, as the case may be), to testify
the truth, the whole truth, and nothing but the truth, did
depose to the matters contained in the foregoing deposition, and
did, in my presence, subscribe the same, and indorse the exhibits
annexed thereto. And I further certify that I have subscribed
my name to each half-sheet thereof, and to each exhibit. And I
further certify that av iia. cae ... appeared in behalf of the
Suse Cie Otateacs 5 ON TEE aa cgn oss s cae Appeared im belalt
OP Ue gegen ye aneve 2

[Code, § 902, without change; made. erry to justice
court practice by Code, § 2986.]

§ 254, Certificate a sufficient return. The certificate specified
in the last section is a sufficient return to a commission.

[Code, § 903, without change; made applicable to justice
court practice by Code, § 2986. ]

§ 255. Receipt of deposition by justice. The justice to whom
the package containing the commission is transmitted by mail
must receive it from the post-office and open and file it, indorsing
thereupon the date of his so doing. Jt must remain on file with
him until the trial; but either party is entitled to inspect it on
file.

[Code, § 2985, without change. ]

§ 256. Powers of commissioners. Where the commission is
executed within the state, the commissioner, or, if there are two
or more, a majority of them shall have the same power to issue a
subpoena, to swear a witness, and to compel his attendance, that
a justice of the peace has in an action pending before him.

[Code, § 2987, without change. ]

§ 257, When deposition may: be suppressed. Where it appears
by affidavit that a deposition has been improperly or irregu-
larly taken or returned, or that the personal attendance of the
witness on the trial could have been procured with due diligence
by a subpoena, or that the attorney for either party has practiced
Justice Court Act 989

any fraud or unfair or overreaching conduct to the prejudice
of the adverse party in the course of the proceedings, an order
for the suppression of the deposition may be made by the court on
the application of the party aggrieved on notice to the adverse
party.

[Code, § 910, without change. ]

§ 258. Deposition as evidence. A deposition taken and returned
as prescribed in this article or an exemplified copy thereof, if
the original is filed in another county, may, unless it is sup-
pressed, as prescribed in the last section, be read in evidence
by either party. It has the same effect and no other as the oral
testimony of the witness would have; and an objection to the
competency or credibility of the witness or to the relevancy or
substantial competency of a question put to him or of an answer
given by him may be made as if the witness was then personally
examined and without being noted upon the deposition.

(Code, § 911, without change; made applicable to justice
court practice by Code, § 2986.]

ARTICLE 11
TRIAL AND INCIDENTS

Section 265. Justice to wait one hour.
266. When plaintiff must prove his case.
267. Effect of failure of defendant to appear.
268. When justice to try issue of fact.
269. Defendant’s offer to compromise.
270. General jury list for courts not of record.
271. Jury list.
272. Jury; how constituted.
273. Preparation of ballots; original box.
274. Second box.
275. Demanding jury trial.
276. Drawing jurors.
277. Prepayment of fees.
278. Venire.
279. Return of venire.
280. Punishment of juror for default.
990 Report or Jornr LeaisuativeE ComMIrrEeE

Section 281.
282.
283.
284.
285.
286.
287.
288.
289,
290.
291.
292.
293.
294.
295.
296.
297.
298.
299.

300.

3801.

302.
303.
304.
805.
306.
307.
308.
309.

Ballots, how prepared.

Drawing jurors.

Jurors in default.

New venire.

Additional jurors.

Peremptory challenges.

Challenges in actions by or against municipality.

Challenge for special cause.

Challenge, how tried.

Disqualification of juror related to a party.

Juror’s oath.

Jury to hear proofs.

Witness’s oath.

Mode of swearing.

Kissing the gospels.

Affirmation.

Other modes of swearing.

Swearing persons not Christians.

Justice may examine witness.

Recalcitrant witness.

Contents of warrant; imprisonment of recusant
witness.

Adjournment thereupon.

Ex parte affidavit; when evidence.

When proof of corporate existence unnecessary.

Competency of witness; how determined.

Constable to keep jury; his oath.

Rendition of verdict; plaintiff need not be called.

No verdict can be taken after-a party’s death.

Jury when to be discharged; new venire.

§ 265, Justice to wait one hour. On the return of a summons
duly served the justice must wait one hour after the time specified
therein for its return, unless the parties sooner appear.

[Code, § 2893, without change. ]

§ 266. When plaintiff must prove his case. The plaintiff cannot
recover without proving his case:

1. Where the defendant fails to appear and answer after the
service of a summons, except as provided in section [315] three
hundred and fifteen;
Justice Courr Acr 991

2. Where on the voluntary appearance of the parties without
the service of summons, the defendant fails to file a stipulation for
judgment within one hour after the complaint is filed.

[Code, § 2891, without change of substance, except to require

proof on a voluntary appearance where no stipulation for judg-
ment is filed. ]

§ 267. Effect of failure of defendant to appear. Where the
defendant makes default in appearing or pleading upon the return
of a summons which has been duly served as prescribed in this
[chapter] act, the justice must hear the allegations and proof of
the plaintiff and render judgment according to law and equity, as
the very right of the case appears, except in an action commienoed
by the service of a summons and verified complaint as provided
by section [twenty-nine hundred and thirty-six] one hundred and
eighty-five of this [code,] act, in which case judgment may be
entered as provided by section [twenty-eight hundred and ninety-
one] three hundred and fifteen of this [code.] act.

[Code, § 2988, without change. ]

§ 268. When justice to try issue of fact. Where an issue of
fact has been joined, if neither party demands a trial by jury,
the justice must try the issue, hear the allegations and proofs of
the parties, and render judgment as prescribed in the last section.

[Code, § 2989, without change. ]

§ 269. Defendant’s offer to compromise. Except in an action
to recover a chattel, the defendant may, upon the return of the
summons and before answering the original or amended complaint,
file with the justice a written offer to allow judgment to be taken
against him for a sum therein specified, with costs. If there are
two or more defendants, and the action can be severed, a like offer
may be made by one or more of the defendants against whom a
separate judgment may be taken. If the plaintiff thereupon,
before taking any other proceeding in the action, files with the
justice a written acceptance of the offer, the justice must render
judgment accordingly. If an acceptance is not filed, the offer
cannot be given in evidence upon the trial; but, if the plaintiff
fails to obtain a more favorable judgment, he cannot recover
992 Revort or Joinr LEGISLATIVE CoMMITTEE

costs from the time of the offer, and must pay the defendant’s
costs from that time.

[Code, § 2892, without change, except to give the right to
make the offer after an amendment of the complaint. ]

§ 270. General jury list for courts not of record. A general jury
list for the courts subject to the provisions of this act consists of:

1. In a county which ‘has no commissioner of jurors, the list
of jurors filed with the clerk.of the town or city by the officers
thereof ;

2. In a county which has a commissioner of jurors, the list
so filed by him.

If in a city, lists of jurors for more than one ward or district
thereof. are filed with the city clerk, the aggregate lists so filed
shall constitute the general list.

[New. The judiciary law contains provisions for the prepara-
tion and filing of jury lists and declares their effect as to courts
of record. This section makes the same lists the basis of the jury
system for courts not of record. ].

§ 271. Jury list. Within ten days after a jury list is filed with
the town or city clerk, he shall deliyer a certified copy thereof
to each justice in his town or city, or in any village any part of
which is in such town, except that if the jurisdiction of the justice
is limited to territory less than the whole of such town, city or
village, then the certified copy shall contain only the names of
residents of such territory. The clerk is entitled to a fee of one
dollar for each copy so delivered, which is a town or city charge.
A clerk who shall neglect: to deliver such a copy within the time
herein prescribed, shall forfeit ten dollars for each failure, to be
sued for and recovered by the overseers of the poor for the use of
the poor of the town or city.

[Code, § 2990, last part rewritten and extended to include any
justice subject to the provisions of this act, intending to pro
vide a jury list for all courts not of record. The “ i udiciary
Law” contains provisions for the preparation of jury lists and
the filing of them with the town and city clerks. The justices’
code begins at that point with the lists so filed. The provision
making the fee of the clerk a town or city charge is new. The
reference to villages is intended to include cases where a police
justice has been chosen with separate jurisdiction and is especially
Justicr Court Act pa 993

applicable to villages which include parts of two or more towns.
Jurors should be residents of the village, and in this class of

villages the jury list will necessarily be composed of lists furnished
by different town clerks. ] .

§ 272, Jury; how constituted. A jury for the tria: of an action
or proceeding by any justice or court subject to the provisions of
this act shall be drawn from the jury list filed with the justice
as herein provided. If more than one list is filed with the justice
the aggregate lists so filed shall constitute one ‘jury list for the
purposes of this act.

[New. The last sentence refers to cases of villages which
include parts of two or more towns, and where a jury list must
necessarily be made up of partial lists furnished by the different
town clerks. ]

§ 273, Preparation of ballots; original box. Within teu days
after the jury list is delivered to the justice, he must prepare
suitable ballots by writing on a separate piece of paper the name
of each person included in the list who resides in the town, village,
city or other district to which the jurisdiction of the justice is
limited, or in which he is authorized to hold a court, with the place
of residence of such person and other additions. The ballots
must be uniform as nearly as may be in appearance; and the
justice must deposit them in the box kept for that purpose. Such
a box is known as the original box.

[Adapted from Code, § 1038. ] oi

§ 274, Second box. The justice shall also keep in hs office
another box to .be known as: the second box, in which shall be
deposited, after each trial. by jury, the. ballots containing the
names of persons who attended and served as jurors on such
trial.

[Mostly new, but adapted in part from provisions contained in
Code, § 2991. ]

§ 275, Demanding jury trial. At the time when an issue of
fact is joined either party may demand a trial by jury, and unless
then demanded, a jury trial is waived.

[Code, § 2990, first sentence rewritten, without change of

substance. ]
ao
994 Report or Jornr Leas ative’ ComMirrEer

§ 276, Drawing jurors. ‘When a trial by jury is duly demanded,

the justice must first fix a day for trial, which shall not be less
than three nor more than eight days after the joinder of issue,
unless the parties consent to a longer adjournment, which consent
shall be entered in the justice’s minutes. The justice must then
forthwith openly draw from the original box twelve ballots ccn-
taining the names of ‘persons required to atten] as jurors to uy
such, cause.
. The justice may excuse any juror entitled to be spends
section 544 of. the judiciary law, and he may ‘also set aside a
juror who, in his opinion, resides more than three miles from the
place of trial.

The ballots containing the names of jurors who did not appear
and serve, or who were. sct aside or excused, must on the final
adjournment of the court on the trial be returned to the original
box. If a sufficient number of qualified jurors cannot be obtained
from the origina] box, the justiee must draw from the second box.

When the ballots-are all drawn from the original box, they shall
be again deposited therein, and :juries shall be drawn therefrom
until the ballots,are again all drawn, or a new jury list is filed
with the justice.. yi

[Adapted from Cone § 2991, 1) nf

" § O77, pepe of fees. The ee a uaies a trial by
jury shall thereupon pay to the justice the statutory fees: for the
attendance of each person to be summoned, and for the jurors who
serve on the trial, and also the fees to which the constable is
entitled for notifying the jurors to attend. The fees so deposited
shall be delivered by the justice to the constable serving the venire,
and by him shal] be paid out as required by law. In default of
such deposit the justice shall proceed as if no demand for trial
had been made. :

ee § 2990, in part, without change of substance. ]

'g 278, Venire. The itches — include the names of ‘the
jurors so drawn in a venire and deliver it to a constable of the
county disinterested between the partics. ‘ The constable must, at
least three days before the day therein named, notify each person
whose name is included iy a venire by reading it or stating: its
substance to him.

[Code, § 2993, first part rewritten. |
Justice Courr Act 095

§ 279, Return of venire. The constable must make his return
on a venire, certifying that he has personally served it on each
of the jurors whose names are included therein, and if any were
not served, stating the reason for such omission. Any constable
making a false return of such venire is guilty of a misdemeanor.

[Code, § 2993, second part rewritten. ]

§ 280, Punishment of juror for default. A person. so served
who does not attend at the time and place fixed for the trial of the
eause, or, attending, refuses to serve without a reasonable excuse,
proved by his own oath or the oath of another person. is guilty
of a contempt of court, punishable by a fine not exceeding ten
dollars, which the justice may impose forthwith by an entry in
his minutes. Sueh fine shall be collected by an execution issued
by the justice as upon a judgment, with costs of the levy, and
paid to the overseer of the poor of the town for the use of the
poor thereof; but on the presentation of a satisfactory excuse by
or on behalf of the person so fined, the justice may at any time
remit such fine or any part thereof.

[Code, § 2993, last part, and § 3009 combined. ]

§ 281. Ballots, how prepared. For the purpose of procuring a
jury to try the action the justice must prepare or cause to be
prepared ballots, uniform as nearly as may be in appearance, by
writing the name of each person returned who attends upon
a separate piece of paper. The justice must roll up or fold each
ballot in the same manner, as nearly as may be, so as to resemble
the others, and so that the name is not visible. The ballots must
be deposited in a box or other convenient receptacle.

[Code, § 2994, without change, except that the justice, instead
of the constable, is charged with the duty of preparing the ballots. ]

§ 282, Drawing jurors. The justice must then openly draw
out one after another six of the ballots. If a person whose name
is drawn is challenged and set aside, or is excused, another ballot
must be drawn, and so on successively until the required number
of jurors.is obtained. The parties may elect to try the cause by.
less than six jurors. The persons so selected as herein provided
constitute the jury to try the action.

[Code, § 2995, without change, except that the right to try
the case before less than six jurors is made general, instead of
being limited to a time before a witness is sworn. ]
996 Report or Jornt Learst.attve’ Commirren

§ 283. Jurors in default. If a sufficient number of competent
jurors do not attend, the justice shall issue an attachment against
all defaulting jurors, and shall place the same in the hands of the
officer who summoned the same, commanding him forthwith to
attach such jurors and to bring them before him at a time specified
not more than thirty-six hours thereafter, to which the cause must
be adjourned. The juror or jurors so attached shall, in addition to
the fine specified in section [twenty-nine hundred and ninety-
three] two hundred and eighty of this act, be required to pay the
expense of the attachment and service thereof; which shall be the
officer’s fees, together with all necessary expense incurred by him
in serving said attachment, to be audited and fixed, to be enforced
in the same manner, and when collected to be paid to the officer or
the party who has paid the same. Any person so attached and
disobeying or resisting the service of said attachment is guilty of
a misdemeanor.

[Code, § 2996, without change. ]

§ 284. New venire. If the constable to whom the venire is
delivered does not return it as required thereby or it is for any
reason set aside, the justice must proceed to draw another jury
in the manner prescribed in the foregoing sections of this [title]
article which shall be summoned in like manner as the first jury.

[Code, § 2997, first sentence, without change. |

§ 285, Additional jurors. If a full jury drawn from those
returned as prescribed in the foregoing sections cannot be ob-
tained, the justice may by order entered in his minutes direct the
constable to require the attendance forthwith, or at such time as
he may designate, not longer than twenty-four hours after such
order is made, of such a number of talesmen from the by-standers
or from the town qualified to serve as jurors as the justice deems
sufficient for the purpose; or he may from time to time draw from
the jury box double the number of jurors needed to complete the
jury, in the manner prescribed by the foregoing sections, who
shall be summoned in like manner as the first jury, except that the
venire may be made returnable forthwith.

[Code, § 2997, second part rewritten, without intended change
of substance, except that a provision has been inserted requiring
the order for talesmen to be entered in the minutes. The last
Justicy: Courr Acr 997

clause in the section is intended to give the justice the right to
make the new venire returnable immediately.

The last sentence of § 2997 relating to adjournments has been
omitted. It seems unnecessary. ]

§ 286, Peremptory challenges. Each party may peremptorily
challenge not more than three of the persons drawn as jurors for
the trial.

[Code, § 1176, omitting portions specially applicable to courts
of record. ]

§ 287, Challenges in actions by or against municipality. In an
action in a iustice’s court wherein a city, town or county is a party
it is not a good cause of challenge to a trial juror or to an officer
who notified the trial jurors that the juror or the officer is liable
to pay taxes in a city, town or county which may be benefited by
the recovery.

[Code, § 1179, so far as it applies to justices’ courts. ]

§ 288, Challenge for special cause. The fact that a juror is
in the employ of a party to the action, or, if a party to the action
is a corporation, that he is an employee thereof or a shareholder or
stockholder therein, or in actions for damages for injuries to per-
son or property, that he is a shareholder, stockholder, director,
officer or employee, or in any manner interested, in any insurance
company issuing policies for protection against liability for dam-
ages for injury to person or property, shall constitute a good
ground for a challenge to the favor as to such juror.

[Code, § 1180, in part, without change. ]

§ 289. Challenge, how tried. An objection to the qualifications
of a juror is available onlv upon a challenge. A challenge of a
juror, or a challenge to the panel or array of jurors, must be
tried and determined by the justice only. His determination is
subject to review on appeal.

[Code, § 1180, first part, adapted to justice court practice. ]
§ 290. Disqualification of juror related to a party. Persons shall

be disqualified from sitting as jurors if related by consanguinity
or affinity to a party to the issue in the same cases in which judges
998 Report or Jormnt LeGisuativE CoMMITTEE

are disqualified. The party related to the juror must raise the
objection before the case is opened; but any other party to the
issue may raise the objection within six months from the date of
verdict.

[Code, § 1166, in part, without change; made applicable to
justice court practice by Code, § 3347, subd. 14.]

§ 291, Juror’s oath. The justice must administer an oath or
affirmation to each juror, well and truly to try the matter in dif-
ference between .......-.00045 , plaintiff, and . ..62seaeeee es
defendant, and, unless discharged by the justice, a true verdict
to give, snoned ae to the Seieieune:

[Code, § 2998, without change. ]

§ 292. Jury to hear proofs. After the jurors have been duly
sworn, they must sit together and hear the allegations and proofs
of the parties which must be made publicly in their presence.

[Code, § 2999, without change. ]

§ 293, Witness’s oath. A person offered as a witness must,
before any testimony is given by him, be duly sworn or affirmed
to the effect that the evidence which | he shall give, relating to the
matter in difference between ......... : plaintif, and cd A aa alistai ;
defendant, shall be the truth, the whole truth, and nothing but the
truth.

[Code, § 3000, without change. ]

§ 294, Mode of swearing. [Except as otherwise specially pre-
scribed in this article, wJWhen an oath is administered, the wit-
ness shall lay his hand on the gospels and express assent to the
oath, and it shall be according to the practice except that the wit-
ness need not kiss the gospels.

[Code, § 845, without change. ]

§ 295, Kissing the gospels. The oath must be administered
in the following form, to a person who so desires, the laying of the
hand upon the gospels heing omitted: ‘“ You do swear, in the
presence of the everliving God.” While so swearing he may or
may not hold up his hand, at his option.

Code, § 846, without change. ]
)
Justice Courr Act ve 999

',§.296. Affirmation. A solemn declaration or affirmation, ‘in the
following form, must be administered toa person, who declares that
he has conscientious scruples against taking an oath, or swearing
in any form: ‘ You do solemnly, sincerely, and truly, declare
and affirm.”

(Code, § 847, without change. ]

§ 297. Other modes of swearing. If the court or officer before
which or whom a person is offered as a wittiess is satisfied that any
peculiar mode of swearing in lieu of, or in addition to laying the
hand upon the gospels is, in his opinion, more solemn and obliga-
tory, the court or officer may in its or his discretion adopt that
mode of swearing the witness.

[Code, § 848, without change. ]

§ 298, Swearing persons not Christians. A person believing in
a religion other than the Christian may be sworn according to the
peculiar ceremonies, if any, of his religion instead of as prescribed
in [section eight hundred and forty-five or section eight hundred
and forty-six] in the preceding. sections of this act.

[Code, § 849, without change. ]

§ 299, Justice may examine witness. The [court or officer]
justice may examine an infant or a person apparently of weak
intellect produced before [it or]: him as a witness to ascertain
his capacity and the extent of his knowledge; and may inquire
of a person produced as a witness what peculiar ceremonies in
swearing he deems most obligatory. —

[Code, § 850, without change. ]

§ 300, Recalcitrant witness. Where a witness attending before
a justice in an action refuses to be sworn or affirmed in the. form
prescribed by law, or to answer a pertinent and proper question,
or neglects or refuses to produce a book or paper which he has
been duly subpoenaed to produce, as prescribed in section [twenty-
nine hundred and sixty-nine] two hundred and thirty-five of this
act, or duly required to produce by an order made as prescribed
in section [eight hundred and sixty-seven] two hundred and forty-
siz of this act, and the party at whose instance he attended makes
oath that the testimony of the witness or that the book or paper
1000 Reporr or Jornr LeGistative ComMMITTrEer

is so'far material that without it he cannot safely proceed with
the trial of the action, the justice may by warrant commit the
witness to the jail of the county.

§ 801. Contents of warrant; imprisonment of recusant witness.
The warrant must specify the cause for which it is issued. If it
is issued for refusing to answer a question, the question must be
specified therein; if for neglecting or refusing to produce a book
or paper, the same must be described with convenient certainty.
The recusant witness must be closely confined, by virtue of the
warrant, until he submits to be sworn or affirmed or to answer
or to produce the book or paper required, as the case may be, or is
otherwise discharged according to law.

[Code, § 3002, without change. ] é

§ 302, Adjournment thereupon. The justice must thereupon,
from time to time, at the request of the party in whose behalf the
witness attended, adjourn the trial until the witness testifies, or
produces the book or paper required, or dies, or becomes a lunatic,
or is discharged according to law.

[Code, § 3003, without change. ]

§ 303. Ex parte affidavit; when evidence. An ex parte affidavit
shall not be received in evidence upon a trial without the consent
of both parties, except in a case where it is specially allowed by
law.

[Code, § 3004, without change. ]

§ 304. When proof of corporate existence unnecessary. In an
action brought by or against a corporation the plaintiff need not
prove upon the trial the existence of the corporation, unless the
answer is verified and contains an affirmative allegation that the
plaintiff, or the defendant, as the case may be, is not a corporation.

[ Code, § 1776, without change. ]

§ 305, Competency of witness; how determined. An objection
to the competency of a witness-must be tried and determined by
the justice. Where the ground of the objection depends upon a
matter of fact, evidence may be given thereupon as upon any
Justice Court Act 1001

other question of fact; except that, if the witness is examined

thereupon by the party objecting, no other testimony shall be
received from either party as to his competency.

[Code, § 3005, without change. ]

§ 306. Constable to keep jury; his oath. After hearing the
allegations and proofs the jury must be kept together in a private
and convenient place under the charge of a constable until they
all agree upon their verdict; and, for that purpose, the justice shall
administer to the constable the following oath: ‘“ You swear in
the presence of Almighty God, that you will, to the utmost of
your ability, keep the persons sworn as jurors upon this trial
together, in a private and convenient place, without any meat or
drink, except such as shall be ordered by me; that you will not
suffer any communication to be made to them, orally or otherwise ;
that you will not communicate with them yourself, orally or other-
wise, unless by my order, or to ask them whether they have agreed
upon their verdict, until they are discharged; and that you will
not, before they render their verdict, communicate to any person
the state of their deliberations, or the verdict they have agreed
upon.”

[Code, § 3006, without change. ]

§ 307. Rendition of verdict; plaintiff need not be called. When
the jurors have agreed upon their verdict, they must publicly
deliver it to the justice who must enter it in his docket-book. It
is not necessary to call the plaintiff before receiving the verdict;
and the plaintiff cannot submit to a nonsuit or withdraw the action
after the cause has been committed to the jury.

[Code, § 8007, without change. ]

§ 308. No verdict can be taken after a party’s death. This
act does not authorize the entry of a judgment against a party
who dies before a verdict is actually rendered against him. In
that case the verdict is absolutely void.

[Code, § 765, without change, except to strike out the words

“report or decision,” because not applicable to justice’s court. ]

§ 3809, Jury when to be discharged; new venire. Where the
justice is satisfied that the jurors cannot agree upon a verdict
1002 Report or Jomnt Leorsiatiye Commitrrer

‘after having been out a reasonable time he may discharge them and
issue a new venire, returnable within forty-eight hours; unless
the parties consent, and their consent is entered in the justice’s
docket-book, that the justice may render judgment upon the evi-
dence already before him; which he may do in that case.

. [Code, § 3008, without change. ]

ARTICLE 12
JUDGMENTS

Sention 315. Judgment by default.
316. Judgment on stipulation.
.817. Judgment by confession.
318, Mode of confessing judgment.
. 819. When judgment by confession void.
320. Judgment upon counterclaim.
321. Affirmative relief.
é 322. Judgment, where counterclaim only is interposed for
less than plaintiffs claim.
323. Judgment when accounts exceed four hundred
dollars. a
324, Judgment of nonsuit.
325. Judgment upon verdict.
326. When judgment to be rendered.
327. Remitting part of verdict.
328. Filing iraneetipt of judgment.
329, When execution may issue against person.
330. Docketing judgment in another county.
331. Justice may give transcript after. expiration of his
term.
332, Judgment for or against a married woman.
333. Judgment to bear interest.

§ 3815, Judgment by default. If a verified complaint has been
served with the summons in a case authorized by this act
and the defendant fails to answer such complaint at the time of
the return of the summous, he shall be deemed to have admitted
_the allegations of the complaint as true, and the court, on filing
the summons and complaint with due proof of the service thereof,
shall forthwith enter judgment for the plaintiff and against the
Justice Court Act 1003

defendants for the amount demanded in the complaint, with
costs, without further proof.

[Code, § 2891, in part, without change of substance, being
the provisions of former law 1881, chapter 414, scction 4, as
amended by chapter 472, laws of 1889. ]

§ 316, Judgment on stipulation. Where the parties voluntarily
appear before a justice without the service of a summons and the
plaintiff files a verified complaint in a case authorized by this
act, the defendant may file a stipulation that judgment may be
rendered against him for the amount therein stated, with costs.
Judgment must forthwith be rendered accordingly without
further proof.

[ New. ]

§ 317. Judgment by confession. A justice of the peace may
enter a judgment upon the confession of the defendant in any
case where the amount confessed does not exceed the sum of five
hundred dollars with such a stay of execution, if any, as is agreed
upon by the parties to the judgment.

[Code, § 3010, without change. ]

§ 318. Mode of confessing judgment. A judgment upon con-
fession shall not be rendered unless the following requisites are
complied with:

1. The defendant must personally appear before the justice.

2. The confession must be in writing, signed by the defendant,
and filed with the justice.

3. If the judgment is confessed for a sum exceeding fifty dol-
lars, the confession must be accompanied with the affidavit of the
defendant and of the plaintiff stating that the defendant is
honestly and justly indebted to the plaintiff in the sum specified
therein over and above all just demands which the defendant
has against the plaintiff, and that the confession is not made or
taken with intent to defraud any creditor.

[Code, § 3011, without change. ]

§ 319. When judgment by confession void. A judgment con-
fessed, otherwise than as prescribed in the last section, is void as
against every person, except a purchaser in good faith of property,

real or personal, thereunder and the defendant making the con-
fession.

[Code, § 3012, without change. |
1004 Report or Joint LearsiativeE ComMirrre

§ 320, Judgment upon counterclaim. Where a counterclaim is
established which equals the plaintiff’s demand, the judgment
must be in favor of the defendant. Where it is less than the
plaintiff’s demand, the plaintiff must have judgment for the
residue only. Where it exceeds the plaintiff's demand, the
defendant must have judgment for the excess, or 30 much thereof
as is due from the plaintiff, unless it is more than the sum of
two hundred dollars. Jf it is more than two hundred dollars, or if
no part of it is due from the plaintiff, the justice must, at the
election of the defendant, either:

1. Set off so much of the counterclaim as is sufficient to satisfy
the plaintiff’s demand, and render judgment for the defendant
for his costs; in which case the defendant may maintain an action
for the residue; or,

2. Render a judgment of discontinuance with costs; in which
ease the defendant may thereafter maintain an action for the
whole.

Where part of the cxzess is’ not due from the plaintiff, the
judgment does not prejudice the defendant’s right to recover
from another person so much thereof as the judgment does not
eancel.

[Code, § 2949, without change. ]

§ 321. Affirmative relief. In a case not specified in the last
section, where a counterclaim is established which entitles the
defendant to an affirmative judgment demanded in the answer,
judgment must be rendered for the defendant accordingly.

[Code, § 504, without change. ]

§ 322. Judgment, where counterclaim only is interposed for less
than plaintiff’s claim. Jn an action upon contract, where the com-
plaint demands judgment for a sum of money ouly, if the defend
ant by his answer does not deny the plaintiff's claim but sets up
a counterclaim amounting to less than the plaintiff's claim, the
plaintiff on filing with the court an adinission of the counterclaim
may take Judgment for the excess as upon a default for want of
an answer.

[Code, § 512, without change, except that “ clerk“ is changed
to “court ’’; and the last sentence is omitted as inapplicable to
justices’ court. |
Justics Court Act 1005

§ 323, Judgment when accounts exceed four hundred dollars.
Where upon the trial of an action the sum total of the accounts of
both parties, proved to the satisfaction of the justice, exceeds four
hundred dollars, judgment of discontinuance must be rendcred
against the plaintiff, with costs.

[Code, § 2950, without change. ]

§ 324, Judgment of nonsuit. Judgment of nonsuit, with costs,
must be rendered against a plaintiff prosecuting an action before
a justice of the peace, in either of the following cases:

1. If he discontinues or withdraws the action;

2. If he fails to appear within one hour after the summons is

returnable, or within one hour after the time to which the trial
has been adjourned ;

3. If he is nonsuited upon the trial.
[Code, § 3013, without change. ]

§ 325. Judgment upon verdict. Where a verdict, or the decision
of the justice upon a trial without a jury, is rendered in favor of
either party, the justice must render judgment against the adverse
party in conformity thereto, with costs, except as is otherwise
specially prescribed by law.

[Code, § 3014, without change. ]

§ 326. When judgment to be rendered. The justice must forth-
with render judgment and enter it in his docket book in either
of the following cases:

1. Where the plaintiff is nonsuited, or discontinues or with-
draws the action;

2. Where judgment is confessed ;

3. Where a verdict is rendered ;

4, Where the defendant is in custody at the close of the trial;

5. Where the plaintiff is entitled to the judgment by default
as provided in section [315] three hundred and fifteen;

6. Where the defendant stipulates a judgment as provided in
section [316] three hundred and sixteen.

In every otlier case the justice must render judgment and enter
it in his docket book within four days after the case has been
finally submitted to him.

[Code, § 3015, rewritten; without intended change of substance,
except that subdivisions 5 and 6 are new. ]
1006 Rereortr or Joiny Lecisnarive COMMITYEE

§ 327, Remitting part of verdict. Where a verdict, or the
decision of the. justice upon a trial without a jury, is rendered
in favor of either party for a sum of money, ‘the prevailing party
may remit any portion thereof and take judgment for the residue.

[Code, § 3016, without change. ]

§ 398, Filing transcript of judgment. A justice of the peace
who renders a judgment must on the application of the judgment
creditor and the payment of the fee therefor deliver to him a
transcript of the judgment. If the judgment is for a chattel
which has been delivered to the unsuccessful party, or for the
value thereof in case a return thereof cannot be had, and such
value exceeds twenty-five dollars, the transcript must state the
particulars of the judgment, and whether the summons was per-
sonally served. A transcript may be filed in the office of the
clerk of the county in which the judgment was rendered
at any time within six years after its rendition. The county
clerk on the presentation ofthe transcript and payment of the
fees therefor, must endorse thereon ‘the date of its receipt, file it
in his office and docket the judgment as of that date, in a book
kept by him for that purpose, in the same manner as a judgment
in an-action brought in the county court, and enter therein the
particulars of the judgment as stated in the transcript. From
the time of filing such transcript the judgment is deemed the
judgment of the county court of that county, and must be
enforced accordingly, except that an execution can be issued
thereon only by the county clerk as prescribed in section [3043]
three hundred and forty-one and also except that the judgment is
not a lien on real property unless it is for twenty-five dollars or
more, exclusive of costs.

[Code, §§ 3017 and 3019 combined and rewritten, but with-
out intended change of substance, except that a transcript may be
given in any case, and the transcript in an action for a chattel
is limited to six ‘years..] :

§ 329, When execution may issue against person. If the action
in which the judgment is rendered is one of the actions specified
in subdivision one or two of section [twenty-eight hundred and
ninety-five] eighty-one of this act, or if an order of arrest was
granted and was executed in a case specified in subdivision three
of that section, and, in either case, if the defendant is a male
person, the justice must insert in each transcript given by him,
Justice Cotrr Act - 100%

as prescribed in the last section, the words “ defendant Hable to
execution against his person”; an liké note must also be made
in the docket of the judgment made by. the county clerk.

[Code, § 3018, without change]

§ 330, Docketing judgment in another county. The clerk with
whom a transcript given by a justice is filed, as prescribed in
this article [either of the foregoing sections of this title,] must
furnish to any person applying ieietos and paying the fees
allowed by law one or more tr anscripts of the docket of the judg-
ment attested by his signature. <A county clerk to whom such a
transcript is presented must, upon payment of the fees therefor,
immediately file it, and docket the judgment in the appropriate
docket-book kept in his office in like manner as the judgment was
docketed by the first county clerk. The judgment, when docketed
as prescribed in this section, has the like effect, with respect to
the enforcement thereof, or any proceedings thereunder, or by
virtue thereof, in the county where it was so docketed, as if it
was rendered by a justice of the peace of that county, and
docketed upon filing his transcript; except that where an applica-
tion for leave to issue an execution is necessary, it must be made
to the county court of the county where the judgment was ren-

dered.
[Code, § 3022, without change.] 7

Pty

§ 331. Justice may give transcript after expiration of his term.
A justice of the peace whose term: of office has expired may make
a transcript of a judgment rendered by him,’ as prescribed in
either of the foregoing sections of this article [title].

[Code, § 8028, without change.]

§ 339. Judgment ‘for. or “against a ‘ marriéd” woman. eT udgment

for or against a married woman may, be rendered “and enforced
as if she were single, ee! get. Fa

[Domestic Relations Law, § Bh ainitiangs reference to courts,
as unnecessary.in-this-ach} 0° anh f 6 tet ude

§ 333, Judgment to bear interest. A judgment for a sum of
money bears interest from the time it is entered.

[Code, § 1211, so far as its provisions seem applicable to
justices’ ecurts. |
1008 Report or Jormnt Legisuarive CoMMITTER

ARTICLE 13
EXECUTIONS

Section 340. When justice may issue execution.
341. Execution upon judgment docketed with county
clerk.
342, Execution on filing transcript.
343. General requisites of execution.
344, Execution upon judgment for money.
345. Execution in replevin.
346. Time of receipt to be indorsed on execution.
347. Renewal of execution.
348. Priority of execution.
349. Property exempt from execution.
350. Indorsement, of levy; notice of sale.
351. Sale on execution.
852. Penalty for taking down or defacing notice of sale.
353. Validity of sale.
854, Certain purchases prohibited.
355. Personal property bound by execution.
356. Title of bona fide purchaser before levy.
357. Levy upon current money.
358. Levy upon evidences of debt.
359. Interest of bailor in goods. pledged.
360. Sale of personal property.
361. Return of execution.
362. Garnishee proceedings.
363. Execution against the person; imprisonment of
judgment debtor.
364. When execution against a person cannot issue.
365. Execution against a woman.
“366. When judgment debtor to be discharged.
367. Affidavit for discharge.
368. Penalty -for not discharging,
369. Affidavit a defense to action for escape.
870. Discharge not to affect judgment.
371. Execution upon judgment in action for a chattel.
372, Action against constable for not returning exe-
ahs cution.
Justice Courr Act 1009

Section 373. Constable not to act under execution after return
day.
374. Action against constable for money collected.
3875. Duty of constable whose term of office has expired.

§ 340. When justice may issue execution. At any time within
five years after entry of a judgment, the justice of the peace who
rendered it, being in office, may issue an execution thereupon,
unless it has been docketed in the county clerk’s office.

[Code, § 3024, without change. ]

§ 341. Execution upon judgment docketed with county clerk.
Where a judgment rendered by a justice of the peace has been
docketed with a county clerk, upon the filing either of a transcript
from the justice’s docket or of a transcript from the clerk’s
docket of another county, the execution, to be issued thereupon
by the county clerk, must be in the same form and executed in
the same manner as an execution issued upon a judgment of the
county court; except as otherwise prescribed in the next section
[thirteen hundred and sixty-seven of this act]; and except, also,
that where the judgment is for a sum less than twenty-five dollars,
exclusive of costs, the direction to satisfy the judgment out of the
real property of the- judgment debtor must be omitted. In that
case the provisions [of this act. relating to the satisfaction of an
execution out of the judgment debtor's real property are not appli-
cable thereto.

[Code, § 3043, without change. ]

Ԥ 342. Execution on filing transcript. Where an execution is
issued out of a court other than that in which the judgment was
rendered, upon filing a transcript of the judgment rendered in
the latter court, it must also specify the clerk with whom the
transcript is filed and the time of filing; and it must be made
returnable to that clerk; [If the judgment was rendered in a
justice’s court,] it must also specify the justice’s name[[;] and
[it must] ‘omit the specification respecting the filing of the
judgment-roll.

[Code, § 1867, without change; made applicable to justice
court practice hy Code, § 3043, ]
1010 Reporr or Jomvy Leaistarive ComMirrer

§ 345, General requisites of execution. An execution issued
by a justice must be directed generally to any constable of the
same county. It must intelligibly describe the judgment, stating
the names of the parties in whose favor, and against whom, the
time when, and the name of the justice by whom, the judgment
was rendered; and’it must be made returnable to the justice,
within sixty days after its date. —

[Code, § 3025, without t change

§ 344, Execution upon judgment for money. An execution
issued upon a judgment for a sum of money must specify in the
body thereof the sum recovered and the sum actually due upon
the judgment at the date of the execution; and, except in a case
where special provision is otherwise made by law, it must, sub-
stantially, require the constable to satisfy the judgment, together
with his fees, out of the personal property of the judgment debtor
within the county, not exempt from levy and sale by virtue of an
execution; and to bring the money before the justice, by the
return day of the execution, to be rendered by the justice to the
party who recovered the judgment. If the judgment was:
recovered against a male person, in either of the actions specified
in subdivision one or two of section [twenty-eight hundred and
ninety-five] ezghty-one of this act; or if an order of arrest was
granted, and was executed, in a case specified in subdivision three
of that section, the execution must also command the constable,
if sufficient personal property cannot be found to satisfy the judg-
ment, to arrest the judgment debtor, and to convey him to the
jail of the county, there to remain until he pays the judgment
or is discharged according to law. If the judgment was rendered
in an action to recover'a penalty or forfeiture given by a statute
of the state, the justice must indorse upon the execution a refer-
ence to the statute, as prescribed in section sixty [eighteen hun-
dred and ninety-seven of this act], with respect to a copy of the-
summons.

[ Code, § 3026, without change. ]

§ 345. Bueoulien in replevin. An execution for the” ‘delivery
of a chattel must particularly describe the property and designate
the party to whoin the judgment awards the possession thereof ;
and it must substantially require the constable to deliver the
possession of the property within his county to the party entitled
Justice’ Covrr Act 1011

thereto. If a sum of money is awarded by the same judgment,
it may be collected by virtue of the same execution; or a separate
execution may be issued for the collection thereof, omitting the
direction to deliver possession of the property. If one execution
is issued for both purposes, it must contain with respect to the
money to be collected the same directions as an execution against
property, or against the person, as the case requires.

[Code, § 1378, omitting reference to real property. ]

| § 346. Time of receipt to be indorsed on execution. The con-
stable to whom an execution is directed and delivered must on the
receipt. thereof indorse thereon a memorandum of the day, hour
and minute when he received it.

[Code, § 1863, without change, except that ‘‘sheriff” is
changed to “ constable.” ]

§ 347. Renewal of execution. After the return, wholly or
partly unsatisfied, of an execution issued by a justice of the peace,
he may, from time to time, within five years after the judgment
was rendered, issue a new execution or renew the former exe-
ention. An execution is renewed by a written indorsement there-
upon to that ctfect, signed by the justice and dated upon the day
when it is made. If part of the execution has been satisfied, the
indorsement must state the sum remaining due. Each indorse-
ment renews the execution for sixtv days from the date thereof.
A justice whose term of office has cxpired may thus issue or
renew an execution.

[Code, § 3027, without change. ] |

“g 348, Priority of execution. An execution issued out of a
court not of record, or a warrant of attachment granted im an
action pending in a court not of record, if sade levied, has
preference over another execution issued ott of any court, of
record or not of record, which has not been previously levied.

. [Code, § 1408, without change. ].

§ 349. Property exempt from execution. The same personal
property is exempt from levy and sale, by virtue of an execution
issued by a justice of the peace, which is exempt from levy and
sale by virtue of an execution issued out of the supreme court, and
1012 Report or Jornt LeGisuative ComMirrrer

in the like cases, and under the same cireumstances. [as pre-
scribed in sections thirteen hundred and eighty-nine, thirteen
hundred and ninety, thirteen hundred and ninety-one, thirteen
hundred and ninety-two, thirteen hundred and ninety-three, and
thirteen hundred and ninety-four of this act, and the other special
provisions of law, relating to such an exemption.]

| Code, § 3028, without change, except omission of reference to
the statute. |

§ £50. Indorsement of levy; notice of sale. A constable who
takes personal property into his custody by virtue of an execution
must indorse upon the execution the time of levying upon it. He
must immediately post conspicuously in at least three public
places in the city or town, in which the property was taken writ-
ten or printed notices, signed by him, describing the property and
specifying the place, within the same city or town, where, and the
time, not less than six days after the posting, when, it will be
exposed for sale.

[Code, § 3029, without change. ]

§ 351. Sale on execrtion. A sale of real or personal property,
by virtue of an execution, or pursuant to the directions contained
in a judgment, [or order,] must be made at public auction,
between the hour of nine o’clock in the morning and sunset. The
[sheriff] constable to whom an execution is issued shall at any
time before the sale of the personal property levied on by him, on
the written request of any person who is a creditor of the person
against whom the [writ] execution was issued under which the
[sheriff] constable levied upon the property, exhibit to such
creditor the personal property so levied upon under said [writ]
execution and permit an inspection thereof by such creditor or his
agent.

[Code, § 1384, without change, except as to officer; made.
applicable to justice court practice by Code, § 3030.]

§ 352, Penalty for taking down or defacing notice of sale. A
person who, before the time fixed for the sale, in a notice of the
sale of property, to be made by virtue of an execution, wilfully
takes down or defaces such a notice put up by the [sheriff] con-
stable or by his authority, forfeits fifty dollars to the judgment
Justice Court Act 1013

creditor, and the same sum to the judgment debtor; unless the
notice was defaced or taken down with the consent of the person

seeking to enforce the forfeiture or the execution was previously
satisfied.

[Code, § 1385, without change, except as to officer; made appli-
eable to justice court practice by Code, § 3030.]

§ 353, Validity of sale. An omission by the [sheriff] constuble
to give notice, as required by law, or the taking down or defacing
of a notice, when put up, does not affect the validity of a sale,

made by virtue of an execution to a purcliaser in good faith without
notice of the omission or offense.

[Code, § 1386, without change, except as to officer ; made appli-
cable to justice court practice by Code, § 3030. ]

§ 354, Certain purchases prohibited. The [sheriff,] constable
to whom an execution is directed [or the under sheriff or deputy
sheriff, holding an execution, and conducting a sale of property
by virtue thereof,] shall not, directly or indirectly, purchase any
of the property at the sale. A purchase made by him or to his use
is void.

[Code, § 1387, without change, except as to officer; made appli-
eable to justice court practice by Code, § 3030. ]

§ 355. Personal property bound by execution. The goods and
chattels of a judgment debtor not exempt by express provision of
law from levy and sale by virtue of an execution, and his other
personal property, which is expressly declared by law, to be sub-
ject to levy by virtue of an execution, are, when situated within
the jurisdiction of the officer to whom an execution against prop-
erty is delivered, bound by the execution from the time of the
before.

[Code, § 1405, without change; made applicable to justice
court practice by Code, § 3030. ]

§ 356, Title of bona fide purchaser before levy. The title to
personal property, acquired before the actual levy of an execution
by a purchaser in good faith, and without notice that the execution
has been issued, is not affected by an execution delivered, before
the purchase was made, to an officer, to be executed.

[Code, § 1409, without change; made applicable to justice
court practice by Code, § 3030. |
1014 Report or Jornt Leeisuative Commirrer

§ 357, Levy upon current money. The [officer,J constable to
whom an execution against property is delivered must levy upon
current money of the United States belouging to the judgment
debtor ; and must pay it over, as so much money collected, without
exposing it for sale; except that where it consists of gold coin,
he must sell it, like other personal property [unless he is other-
wise directed, by an order of a judge, or by the judgment in the
particular cause].

[ Code, § 1410, without change, except as to officer, and omitting
the last clause as indicated. ]

§ 358. Levy upon evidences of debt. The [Oofficer,] constable
to whom an execution against property is delivered, must levy
upon and sell, a bill, or other evidence of debt, belonging to the
judgment debtor, which was issued by a moneyed corporation to
circulate as money; or a bond, or other instrument for the pay-
ment of money, belonging to the judgment debtor, which was
executed and issued by a government, state, county, public officer,
or municipal or other corporation, and is in terms negotiable, or
payable to the bearer, or holder.

[Code, § 1411, without change, except as to officer; made appli-
cable to justice court practice by Code, § 3030. ]

§ 359. Interest of bailor in goods pledged. The interest of the
judgment debtor in personal property, subject to levy, lawfully
pledged for the payment of money, or the performance of a con-
tract or agreement, may be sold, in the hands of the pledgee, by
virtue of an execution against property. The purchaser at the
sale acquires all the right and interest of the judgment debtor,
and is entitled to the possession of the property, on complying
with the terms and conditions upon which the judgment debtor
could obtain possession thereof. This section does not apply to
property of which the judgment debtor is unconditionally entitled
to the possession. ,

[Code, § 1412, without change; made applicable to justice
court practice by Code, § 3030.]

§ 360, Sale of personal property. Personal property must be
offered for sale in such lots and parcels as are ealewlated to bring
the highest price. Except where the [officer] constable is
Justice Court Aor 1015

expressly authorized [by this article] to sell property not in his
‘possession, personal property shall not be offered for sale unless it
1s present and within the view of those attending the sale.

[Code, § 1428, without change except as.to officer; made appli-
cable to justice court practice by Code, § 3030. ]

8 361. Return of execution. The constable must return the
execution to the justice and pay to him the amount of the judg-
ment, with interest, or so much thereof as he has collected; return-

ing the surplus, if any, to the person from whose property it was
collected.

[Code, § 3031, without change. ]

§ 362, Garnishee proceedings. Where a judgment has been
recovered in a court not of record and where an execution issued
upon said judgment has been returned wholly or partly unsatis-
fied, and where any wages, debts, earnings, salary, income from
trust funds or profits are due and owing to the judgment debtor
or shall thereafter become due and owing to him, to the amount
of twelve dollars or more per week, the judgment creditor may
apply to a judge or justice of such court [the court in which said
judgment was recovered or the court having jurisdiction of the
same] without notice to the judgment debtor, and upon satisfac-
tory proof of such facts by affidavits or otherwise, the [court, if
a court not of record, a judge or justice thereof, must issue, -or if
a court of record, a] judge or justice[,J must grant an order
directing that an execution issue against the wages, debts, earn-

‘ings, salary, income from trust funds or profits of said judgment
debtor, and on presentation of such execution by the officer to
whom delivered for collection to the person or persons from whom
such wages, debts, earnings, salary, income from trust funds or
profits are due and owing, or may thereafter become due and owing
to the judgment debtor, said execution shall become a lien and a
continuing levy upon the wages, earnings, debts, salary, income
from trust funds or profits due or to become due to said judgment
debtor to the amount specified therein which shall not exceed ten
per centum thereof, and said levy shall be a continuing levy until
said execution and the expenses thereof are fully satisfied and
paid or until modified as hereinafter provided, but only one such

execution against the wages, debts, earnings, salary, income from
1016 Report or Jornt LecisnativE Commitrer

trust funds or profits of said judgment debtor shall be satisfied at
one time and where more than one such execution has been issued
or shall be issued pursuant to the provisions of this section or of
any other law against the same judgment debtor, they shall be
satisfied in the order of priority in which such executions are pre-
sented to the person or persons from whom such wages, debts, earn-
ings, salary, income from trust funds or profits are due and owing.

It shall be the duty of any person or corporation, municipal or
otherwise, to whom said execution shall be presented, and who shall
at such time be indebted to the judgment debtor named in such
execution, or who shall become indebted to such judgment debtor
in the future, and while said execution shall remain a lien upon
said indebtedness, to pay over to the officer presenting the same
such amount of such indebtedness as such execution shall prescribe
until said execution shall be wholly satisfied, and such payment
shall be a bar to any action therefor by any such judgment debtor.
If such person or corporation, municipal or otherwise, to whom
said execution shall be presented shall fail, or refuse to pay over to
said officer presenting said execution, the percentage of said indebt-
edness, he shall be liable to an action therefor by the judgment
creditor named in such execution, and the amount so recovered
by such judgment creditor shall be applied towards the payment of
said execution. Either party may apply at any time to the
[court from which such execution shall issue, or to anv] judge or
justice issuing the same, or to the county judge of the county,
and-in any county where there is no county judge, to any justice
of the city court upon such notice to the other party as such court,
judge, or justice shall direct for a modification of said execution,
and upon such hearing the said court, judge or justice may make
such modification of said execution as shall be deemed just, and
such execution as so modified shall continue in full foree and
effect until fully paid and satisfied, or until further moditied as
herein provided.

This section, so far as it relates to wages and salary, due and
owing or to beeome due and owing to the judgnent debtor, shall
not apply to judgments recovered more than ten years prior to
September [[t, 1908] first, nineteen hundred and eight, nor to
judement. heretofore or hereafter recovered upon such judements.
Fand any execution heretofore issued upon such judgments pur-
suant to an order heretofore granted under this section shall, when
this act takes effect, cease to be a lien and continuing levy upon
Justice Court Act 1017

wages and salary thereafter to become due and owing to the judg-
ment debtor. ]

[Code, § 1391, last part, so far as it relates to courts not of
record. |

§ 363. Execution against the person; imprisonment of judgment
debtor. For want of sufficient personal property. whereon to levy,
the constable must, if the execution requires it, arrest the judg-
ment debtor and convey him to the jail of the courty. The keeper
of the jail must thereupon keep the judgment debtor in custody,
in all respects as if the execution was issued out of the supreme
court, until the judgment and the fees of the constalle are paid;
or until the judgment debtor is thence discharged, in due course
of law; except that if the execution has an indorsement showing
that the judgment was rendered in an action for a penalty or
forfeiture given by a statute of the state, the sheriff shall not
admit the judgment debtor to the liberties of the jail.

[Code, § 3032, without change. ]

§ 364. When execution against a person cannot issue. Where
a cause of action for which a defendant might be arrested is united
with a cause of action for which he cannot be arrested, an execu-
tion against the person cannot be issued on the judgment.

[Code, § 2937, last sentence. It seems more appropriate in the
article on execution, and is therefore transferred here. ]

§ 365. Execution against a woman. An execution cannot be
issued under this act against the person of a woman.

[Code, § 1488, without change, except that the words “ under
this act ” are inserted and the clause unless, ete., is omitted. ]

§ 366. When judgment debtor to be discharged. A person com-
mitted to jail by virtue of an execution issued under this act,
who has a family within the state for which he provides, must be
discharged after remaining in custody thirty days; otherwise he
must be discharged after so remaining sixty days. <A person
admitted to the jail liberties is deemed in custody under this
section.

[Code, § 3033, rewritten, but without intended change of sub-
stance, except that the provisions relating to the municipal court of
Buffalo are omitted. ]
1018 Revorr or Jornr Lecistative ComMMrrrer

§ 367, Affidavit for discharge. In order to procure a discharge
at the expiration of thirty days, the prisoner must make and
deliver to the sheriff or jailer an affidavit stating the facts which
entitle him to such discharge according to the provisions of the
last section. The sheriff or jailer, on receiving such affidavit, must
forthwith discharge the prisoner from custody, and must there
upon deliver the affidavit to the clerk of the county who must file
it in his office without fee.

[Code, § 8034, rewritten, but without intended change of
substance. ]

§ 368, Penalty for not discharging. A sheriff or jailer who
refuses to discharge the prisoner upon receiving such an affidavit
forfeits twenty-five dollars for each day during which he detains
the prisoner, to be recovered by the latter, in addition to any
damages which he sustains by reason of the false imprisonment.

[Code, § 3035, without change. ]

§ 369, Affidavit a defense to action for escape. The receipt of
such an affidavit is a defense to an action brought against the
sheriff or jailer by reason of the prisoner’s discharge.

[Code, § 3036, without change. ]

§ 370. Discharge not to affect judgment. Notwithstanding the
discharge of a judgment debtor, as prescribed in the last four sec-
tions, the judgment remains valid as against his property; and a
new execution may be issued accordingly, as if he had not been
imprisoned.

[Code, § 3037, without change. ]

§ 371. Execution upon judgment in action for a chattel. In an
action for a chattel, the possession of which has not been delivered
to the prevailing party, an exccution, for the delivery of the posses-
sion thereof to him, as well as for any damages recovered by him,
may be is<ued by the justice; unless the judgment has been dock-
eted in the county clerk's offiee. [as prescribed in title sixth of this
chapter.J It must he to the same effeet, and exceuted in the same
manner, as a like execution issued upon a judgement rendered in
the supreme court; except that it must be directed generally to
any constable of the county; and that the direction to satisfy a
Justice Court Act 8 1019

sum of money out of the property of the judgment debtor must
be in the form prescribed in this article [title] for a like diree-
tion where an execution is issued by a justice of the peace upon a
judgment for a sum of money.

[Code, § 3038, without change. ]

§ 372. Action against constable for not returning execution. If
a constable fails to return an execution within five days after the
return day thereof, the party in whose favor it was issued may
recover, in an action against the constable, the amount of the
execution, if it was issued upon a judgment for a sum of money;
or if it was for the delivery of the possession of a chattel, the
value of the chattel, as specified in the judgment, together with
the damages and costs awarded thereby; and, in either case, with
interest from the time when the judgment was rendered.

[Code, § 3039, without change. ]

§ 378. Constable not to act under execution after return day.
A constable shall not levy upon or sell property, or arrest a defend-
ant, or take possession of a chattel, by virtue of an execution, after
the time limited therein for its return, unless the execution has
been renewed; nor shall he do any act under a renewed execution,
after the expiration of the time for which it has been renewed.

[Code, § 3040, without change. ]

§ 3874. Action against constable for money collected. Where
money, collected by a constable upon an execution, is not paid
over by him according to law, any person entitled thereto may
maintain an action in his own name upon the instrument of
security given by the constable and his sureties; and may recover
therein the sum so collected, with interest from the time when it
was collected.

[Code, § 3041, without change. ]

§ 375. Duty of constable whose term of office has expired. A
constable, to whom an excention is delivered, whose term of office
expires on or before the return day thereof, must proceed thereupon
in the same manner as if his term of office had not expired; and
he and his sureties are liable for any neglect of duty, with respect
1020 Report or Jotnr LeaqisuativeE CoMMITTEE

to the execution; or for money collected thereunder, or for dam-
ages sustained by reason of any act done by the constable, touching
the execution, in the same manner and to the same extent as if his
term of office had not expired.

[Code, § 3042, without change. ]

ARTICLE 14
COSTS

Section 880. When prevailing party to recover costs.
381. Security for costs where plaintiff is foreign corpora-
tion.
382. When neither party to recover costs.
383. Amount of costs limited.
384. Costs upon demurrer.
385. When defendant entitled to increased costs.
386. Costs in action on judgment of justice.
387. Taxation of costs.
388. Costs on judgment for one or more defendants.
389. Costs wrongfully collected may be recovered back.
390. Fees of justice of the peace in action.
391. Fees of justice of the peace in special proceedings
or action not before justice of peace.
392. Fees of constable.
393. Affidavit for traveling fees.
394. Costs of commission.
395. Juror’s fees.
396. Witness fees.
397. Prepayment of costs and fees.
398. Payment by adverse party of costs and fees.
399. Any person may subpoena witnesses.
400. Provision for fees applies to civil actions only.

§ 380, When prevailing party to recover costs. Except as other-
wise specially prescribed by law, a party who recovers judgment
in an action in a justice’s court, is entitled to costs; which must
be included in the judgment. Costs consist of the fees allowed
by law for serviecs necessarily rendered in the action at the
request of the party entitled to costs or paid by him, as prescribed
Justice Courr Act 1091

by law; and of such other expenses as a party is entitled to
include in his costs by express provision of law. [The defendant
In an action brought in a justice’s court may require security for
costs to be given, where the plaintiff is a foreign corporation. So
far as practicable, the provisions of title three of chapter twenty-
one of this act, shall apply to the proceedings for requiring such
security, the requisites of the undertaking and the justification
of sureties therein. }

(Code, § 3074, first two sentences, without change. ‘The pro-
vision for security for costs by foreign corporation rewritten and
included in next section. ]

§ 381. Security for costs where plaintiff is foreign corporation.
The defendant in an action brought in a justice’s court may
require security for costs to be given where the plaintiff is a
foreign corporation. A written demand requiring such security
shall be served upon the plaintiff and filed with the justice. The
plaintiff shall, within five davs thereafter, either deposit with the
justice the sum of two hundred and fifty dollars, to be apphed to
the payment of the costs, if any, awarded against him, or file with
the justice an undertaking, executed to the defendant by one or
more sureties, approved by the justice, to the effect that they will
pay, upon demand, to the defendant, all costs which mav be
awarded to him in the action, not exceeding a sum specified in
the undertaking, which must be at least two hundred and fifty
dollars. The plaintiff must also serve upon the defendant a
notice that such undertaking has been filed. Within five days
after service of the notice of the filing of the undertaking, the
defendant may serve upon the plaintiff, or his attorney, a notice
that he excepts to the sureties therein. Within five days after
service of such a notice, the plaintiff must serve upon the defend-
ant, or his attorney, a notice of the justification of the same or
new sureties before the justice, at a specified time and place, not
less than five days nor more than ten days thereafter. If the
justice finds the sureties sufficient, he must annex the written
examination, if any, to the undertaking, and indorse his allow-
ance thereon. Where the defendant fails duly to except his sure
ties, the undertaking is deemed allowed and must be indorsed in
like manner.

[Code, § 3074, last part. Section 3074 applies title 3 of chap
ter 21 to the proceedings for such securities, We have rewritten
1029 Report or Jornt Lecistative: ComMirrer

and adapted such parts of §§ 3272-8275 as seem applicable to
justice court practice. |

§ 382. When neither party to recover costs, In cither of the
following cases, costs shall not. be awarded to either party, but
each party must pay his own costs:

1. Where the action is discontinued by the absence of the
justice for more than one hour, after the summons is returnable,
or after the time to which the trial has been adjourned.

2. Where the justice is disqualified, for a reason specified in
section [15] fiftecn of the judiciary law.

3. Where the action is discontinued, upon the ground that the
defendant is an infant, for whom a guardian ad litem has not
been appointed.

4, In an action to recover one or more chattels, where the plain-
tiff recovers a chattel, or part of a chattel, or the value thereof,
and the defendant also. recovers a chattel, or part of a chattel,
which has been replevied and delivered to the plaintiff, or the

value thereof. The plaintiff i is entitled to costs, where both parties
recover, as specified in this subdivision, virile the chattel, for
which the defendant recovers, has been replevied and delivered to
the plaintiff. .

[Code, § 3075, without change. ] ;

§ 383, Amount of costs limited. The sum to be awarded, as
costs, to the prevailing party, except where it is otherwise specially
prescribed by law, is limited as follows:

1. It cannot exceed fifteen dollars, besides the fees of witnesses,
where, upon the trial of an issue of fact or of law, either party
recovers damages to the amount of fifty dollars or more, or one or
more chattels, the value of which, as: fixed, together with the
damages, if any, amounts to fifty dollars or more; or, where, if the
defendant recovers judgment, the sum for which the plaintiff
demanded judgment was fifty dollars or more, or the value of al]
the chattels to recover which the action was brought was stated
in the complaint at fifty dollars or more.

2. In every other case, it cannot exceed ten dollars, besides ‘lia
fees of witnesses attending from another county.

But the prevailing party is entitled, in addition to the sum
specified in this section, to the fees and expenses allowed by law
for a. commission issued to examine a witness not residing in, the
Justice Court Act 1033

county or in an adjoining county; and for each adjournment
exceeding one which was granted upon the application of the
party against whom the judgment is rendered.

[Code, § 8076, without change. ]

§ 884, Costs upon demurrer. Where judgment is rendered
upon the trial of a demurrer, the costs of the trial must be
included therein; otherwise posts are not allowed upon the trial
of a demurrer.

[Code, § 3077, without change. ]

§ 385. When defendant entitled to increased costs. In cither
of the following cases, a defendant in whose favor a final judg-
ment is rendered in an action wherein the complaint demands
judgment for a sum of money only or to recover a chattel[[; or a
final order is made in a.special proceeding instituted by a state
writ, ] is entitled to recover the costs prescribed in [section 3251
of this act] the preceding sections of this article, and in addition
thereto one-half thereof:

1, Where the defendant is or was a public officer appointed or
elected under the authority of the state or a person specially
appointed according to law to perform the duties of such an
officer, and the action or special proceeding was brought by rea-
son of an act done by him by virtue of his office or an alleged
omission by him to do an act which it was his official duty to
perform ;

2. Where the action was brought against the defendant by rea-
son of an act done by the command of such an officer or person,
or in his aid or assistance, touching the duties of the office or
appointment ;

3. Where the action was brought against the defendant for
taking a distress, making a sale or Hobie any other act by or under
color of authority of a statute of the state.

But this section does not apply where an officer or other person
specified herein unites in his answer with a person not entitled to
such additional costs.

[Code, § 3258, without change so far as it applies to justices’
court practice; made applicable by Code, § 5079. |

§ 386. Costs in action on judgment of justice. Jn an action
upon a judgment of a justice of the peace brought in the county
wherein it was rendered within five years after the rendition
thereof against a defendant upon whom the summons was per-
1024 Revorr or Jomnt Learsiative Cowmirrré

sonally served, no costs can be recovered, except where the justice
who rendered the judgment is dead or out of office or otherwise
incapable of acting or has removed from the county or where
one of the parties has died, or where the docket of the judgment
has been lost or destroyed.

[Code, § 3154, without change. ]

§ 387. Taxation of costs. Where a justice renders a judgment
he must specify in his docket-book the items of costs which were
allowed by him. Before any item of costs is thus allowed other
than a fee to the justice or to a juror or witness who attended or
to a constable who has certified the amount of his fee upon a paper
filed with the justice, the party must show by his oath, or that of
his attorney, to the satisfaction of the justice that the item was
actually and legally paid or incurred.

[Code, § 3078, without change. ]

§ 888, Costs on judgment for one or more defendants. In an
action against two or more defendants not united in interest who
make separate defenses by separate answers, if the plaintiff fails
to recover judgment against all, the justice must award costs to
those who have judgment in their favor.

[Code, § 8080, without-change. ]

§ 389. Costs wrongfully collected may be recovered back. Where
a justice includes in a judgment a greater amount of costs than is
allowed by law or an improper item of costs or fees and the same
is collected, the person from whom it was collected may, not-
withstanding the judgment, recover from the justice who has
received it the amount thereof with interest.

[Code, § 38081, without change. ]

§ 390, Fees of justice of the peace in action. A justice of the
peace is entitled for the services specitied in this section in an
action brought before a justice of the peace, to the following
fees:

For a summons twenty-five cents;

For an order of arrest twenty-five cents ;

For a warrant of attachment twenty-five cents;

For a requisition in an action for a chattel twenty-five cents;
Justion Court Act 1025

For a subpoena, including all the names inserted therein,
twenty-five cents;

For the acknowledgment of a power of attorney twenty-five
cents ;

For taking an affidavit or administering an oath ten cents;

For drawing an affidavit, application or notice required by
statute, five cents for each folio;

For drawing a bond or an undertaking twenty-five cents ;

For hearing an application for a commission to examine one or
more witnesses fifty cents;

For an order for such a commission, and attending, settling
and certifying interrogatories fifty cents;

For hearing an application to discharge » defendant from
arrest or to vacate or modify a warrant of attachment or increase
the plaintiff’s security thereupon fifty cents ;

For an adjournment, except where it is made by the justice
upon his own motion, twenty-five cents ;

For a venire twenty-five cents;

For empaneling and swearing a jury twenty-five cents;

For hearing the plaintiff's evidence where the defendant does
not appear twenty-five cents;

For the trial of a demurrer twenty-five cents ;

For the trial of an issue of fact where the defendant appears
one dollar and fifty cents for each day actually spent in the trial;

For receiving and entering the verdict of a jury twenty-five
cents ;

For entering judgment twenty-five cents;

For filing each paper required by statute to be filed five cents ;

For a transcript of a judgment twenty-five cents;

For a copy of any paper for which a fee is not expressly pre-
scribed by law six cents for each folio;

For an execution, or the renewal of. an execution twenty-five
cents ;

For making a return upon an appeal from a judgment two
dollars;

For an order directing an action or a special proceeding to be
continued before another justice twenty-five cents;

For services when associated with another justice in any case
where a fee therefor is not expressly prescribed by law, for each
day actually spent, two dollars.

[Code, § 3322, first part, without change. |

33
1026. Rerorr or Jomvr LearsiativE ComMIttT3Er

§ 391. Fees of justice of the peace in special proceedings or action
not before justice of peace. A justice of the peace is entitled, for
services [specified in this section] in a special proceeding or an
action not brought before a justice of the peace to the following’
fees :

For a warrant, in a case where a fee therefor is not expressly
prescribed by law, twenty-five cents;

For a warrant for the apprehension of a person charged with
being the father of a bastard fifty cents; for indorsing a warrant
issued from another county twenty-five cents;

For services when associated with another justice in any case
where a fee therefor is not expressly prescribed by law, for each
day actually spent, two dollars;

For a precept or other mandate whereby a special proceeding is
commenced in a case where a fee therefor is not specially pre-
seribed by law twenty-five cents;

For a view of real property in a case where it is required by
law fifty cents;

For a warrant of attachment to arrest a delinquent juror o1
witness twenty-five cents;

For drawing, signing and depositing with the clerk a minute
or record of conviction of such a juror or witness or of any per-
son for contempt, in any case where a fee therefor is not specially
prescribed by law, fifty cents;

For an execution upon such a conviction before him twenty-
five cents;

For drawing, copying and certifying a bond, an undertaking,
a recognizance or other written security, and filing the same with
the county clerk or other officer with whom it must be filed twenty-
five cents;

For a warrant of commitment for any cause twenty-five cents;

For a subpoena, including all the names inserted therein
twenty-five cents ;

For a precept to notify a jury fifty cents;

For empanelling and swearing a jury twenty-five cents; except
in proceedings to alter or lay owt a highway, in which ease he is
entitled to two dollars;

For hearing the matter coneeming which a jury is called
seventy-five cents for each day actually spent;

For receiving and entering the verdict of the jury and the
order, if any, thereupon twenty-five cents ;
Justicr Court Act 1027

For any service for which a fee is not expressly allowed by
this [subdivision] section, and for which, if rendered in an action
before a justice, a fee is allowed by the [first subdivision of this]
last section, the fee allowed in such an action for the same Service ;

For taking the deposition of a witness upon an order made
or commission issued by a court of record of the state or a‘court
in another state or a territory or a foreign country ten cents for
each folio;

For making the necessary return and certificate thereto fifty
cents ;

For taking an affidavit or administering an oath ten cents.
[Code, § 3322, last part, without change. ]

§ 392. Fees of constable. A constable is entitled, for the serv-
ices specified in this section, to the following fees:

1. In an action brought before a justice of the peace or in a
Justice’s court of a city:

For serving a summons twenty-five cents;

For serving a summons and executing an order of arrest one
dollar ;

For serving a summons and levying a warrant of attachment
one dollar;

For serving a summons and affidavit and executing a requisi-
tion in an action for a chattel one dollar;

For serving an order directing the action to be continued before
a justice other than the one before whom it is pending and for
attending before the latter fifty cents, and fifty cents in addition
if he so attends with a person in his custody;

For collecting money by virtue of an execution for every dol-
lar collected to the amount of fifty dollars five cents; for every
dollar collected over fifty dollars two and one-half cents. Where
a judgment or an execution is settled after a levy the constable is
entitled to poundage upon the sum at which the settlement is
made not exceeding the value of the property levied upon;

For each mile necessarily traveled going and returning to
serve a summons or to serve or execute any other mandate, except
a venire, the distance to be computed from the place of abode of
the person served or the place where it is served to the place where
it is returnable, ten cents; but where two or more mandates in one
action are served or executed upon one journey or where a man-
date is served upon or executed against two or more persons in
one action. he is entitled in al] to only ten cents for each mile
necessarily traveled ;
1028 Report or Jormnt Leaisnarive Commirren

For notifying the plaintiff of the execution of an order of
arrest twenty-five cents; and for going to the plaintiff’s residence
or, if he is found elsewhere to the place where he is found, to
serve such a notice, for each mile traveled going and returning,
ten cents;

For subpoenaing each witness, not exceeding four, twenty-five
cents ;

For notifying the jurors to attend a trial one dollar and fifty
cents ;

For taking charge of a jury during their deliberations fifty
cents.

[Where witnesses, not exceeding four, are subpoenaed by any
person other than a constable, the fee therefor is ten cents each.]

2. In a special proceeding:

For notifying jurors to attend to assess damages in proceed
ings relating to highways two dollars;

For notifying jurors to attend in any other case, unless a fee
therefor is specially prescribed by law, for each person notified,
ten cents; and for each mile actually and necessarily traveled,
going from and returning to his place of residence, ten cents;

For serving a precept or other mandate by which the special
proceeding is commenced twenty-five cents;

For serving a warrant, in any case where a fee therefor is not
specially prescribed by law fifty cents;

For serving an order directing the special proceeding to be con-
tinued before a justice other than the one before whom it is
pending and for attending before the latter [fifty cents and fifty
cents in addition if he so attends] with or without a person in his
custody one dollar ;

For arresting and committing any person pursuant to process
one dollar; :

For subpoenaing each witness, not exceeding four, twenty-five
cents ;

For each mile necessarily traveled going and returning to
serve or execute a mandate, the distance to be computed from the
place where it is served or executed to the place where it is
returnable, unless a different rate of travel fees upon the service
or execution thereof is specially prescribed by statute, ten cents
Where two or more mandates are served or executed in one special
proceeding, the limitation upon the amount of travel fecs specified
in the last preceding subdivision applies. _
Justice Courr Act 1029

[Code, § 3323, without change, except the last clause of subd.
1, which is made a separate section, post. The amendment to the
fourth paragraph from end conforms to the practice by reason of
a misprint in editorial editions of the Code since 1881. ]

§ 393, Affidavit for traveling fees. A constable who charges
any traveling fees must show by affidavit that the travel was
necessary to perform the service with respect to which it is
charged; that no more miles are charged for than were actually
and in good faith traveled for that purpose; that he had at the
time no other official or private business upon the route so
traveled; and that the traveling fees are charged upon one man-
date only which must be attached to or described in the affidavit.
The justice taxing the fees must be satisfied that the miles charged
for were actually and necessarily traveled as stated in the affidavit.

[Code, § 3324, without change. ]

§ 394, Costs of commission. A party recovering costs in an
action before a justice of the peace in whose behalf a commission
has been issued and who introduces in evidence a deposition taken
thereunder is entitled to recover his actual disbursements there
upon, not exceeding the following sums: commissioner’s fees for
taking and returning testimony one dollar; each subpoena issued
or oath administered by the commissioner six cents; expense of
serving each subpoena twenty-five cents; each witness’s fees for
each day’s attendance before the commissioner twenty-five cents;
postage for sending and returning the commission and papers
annexed thereto one dollar.

[Code, § 3325, without change. ]

§ 395. Juror’s fees. Except as otherwise specially prescribed
by law, a person notified to attend as a juror is entitled to twenty-
five cents for attending and serving upon the trial of an action or
the hearing of a special proceeding before a justice of the peace,
and to ten cents for attending to serve where he is not sworn.

[Code, § 3326, without change.] *

§ 396, Witness fees. A witness is entitled to twenty-five cents
for each day’s actual attendance before a justice of the peace
in an action or a special proceeding or before a commissioner
appointed by a justice of the peace or before a justice of the peace
1030 Revorr or Jornt Leqaisutative ComMMITTErR

taking a deposition to be used in a court not of record of another
state or a territory of the United States.

[Code, § 3327, without change. ]

§ 397, Prepayment of costs and fees. A justice of the peace,
or a constable, juror or witness before a justice of the peace is
not obliged to render any service [specified in this title, without
the previous payment or tender of his fee therefor.

[Code, § 3328, without change. ]

§ 398, Payment by adverse party of costs and fees. In an action
before a justice of the peace, if any services are rendered for a
party and he neglects to pay the fees allowed therefor by law,
the other party may pay those fees, and the amount thereof must
be taxed as part of his costs if he recovers costs.

[Code, § 3329, without change. ]

§ 399, Any person may subpoena witnesses. Any person may
subpoena a witness in justice’s court. If such person is not a
constable, he is entitled to a fee of ten cents for each witness
subpoenaed, not exceeding four.

[Lust clause of subdivision 1 of Code, § 3823, relating to
subpoenaing witnesses by a person not a constable. ]

§ 400. Provision for fees applies to civil actions only. Except
as otherwise expressly prescribed therein, the foregoing g provisions
relating to fees in justice’s court do not apply to a service ren-
dered in a criminal action or proceeding.

[Code, § 3382, rewritten and made applicable, so far as
necessary, to justices’ courts. ]

ARTICLE 15
JOINT DEBTORS

Section 405. Judgment against defendants jointly indebted when
all are not served.
406. Effect of such judgment.
407. Docketing judgment; action thereon.
Justice Court Act : 1031

Section 408. Execution, indorsement thereupon.

409. How collected.

10. Action against defendants not personally sum-
moned.

411. Complaint in such action.

412. Answer.

413. Provisional remedies.

414. Judgment.

§ 405. Judgment against defendants jointly indebted when all
are not served. In an action wherein the complaint demands
judgment for a sum of money against two or more defendants
alleged to be jointly indebted upon contract, if the summons is
served upon one or more, but not upon all of the defendants, the
plaintiff may proceed against the defendant or defendants upon
whom it is served, unless the [court] justice otherwise directs;
and, if he recovers final judgment, it may be taken against all the
defendants thus jointly indebted.

[Code, § 1932, without change; made applicable to justice
court practice by Code, § 3020. ]

§ 406. Effect of such judgment. Such a judgment is conclusive
evidence of the liability of each defendant upon whom the sum-
mons was personally served or who appeared in the action.
[Where it is taken against a defendant, upon whom the sum-
mons was served by publication, or without the state, pursuant
to an order for that purpose, it has the effect, as against that
defendant, specified in section four hundred and forty-five of
this act.] As against [such a defendant, who is allowed to defend
after judgment, or as against] a defendant not summoned it is
evidence only of the extent of the plaintiff’s demand after the
liability of that defendant has been established by other evidence.

[Code, § 1933, without change, so far as applicable to justice
court practice; made applicable by Code, § 3020. ]

§ 407. Docketing judgment; action thereon. The justice who
gives a transcript of a judgment taken as prescribed in [the last]
section four hundred and five must distinctly designate in the
transcript each defendant who was not summoned. Thereupon
the clerk who dockets the judgment must write on the docket
1032 Revorr or Jornr Leqisitarive ComMirren

opposite or under the name of each defendant on whom the sum-
mons was not served the words “ not summoned,” and a like entry
must be made by each county clerk with whom the judgment is
afterwards docketed. The judgment does not by virtue of its
being docketed bind any real property or chattel real owned by
such a defendant. An action on a judgment so docketed can be
maintained in a justice’s court against the defendants summoned
only in a like case and with like effect as if they were the only
defendants in the original action.

[Code, §§ 1936, 3021, combined. ]

§ 408. Execution, indorsement thereupon. An execution upon
such a judgment must be issued in form against all the defend-
ants; but the [attorney for the judgment creditor] justice or
county clerk must indorse thereupon a direction to the sheriff
or constable, as the case. may be, containing the name of each
defendant who was not summoned and restricting the enforce
ment of the execution, as prescribed in the next section.

[Code, § 1934, amended to conform to justice court practice;
made applicable to justice court practice by Code, § 3020. ]

§ 409. How collected. An execution against the person issued
upon such a judgment shall not be enforced against the person
of a defendant whose name is so indorsed thereupon. An execu-
tion against property issued upon such a judgment shall not be
levied upon the sole property of such a defendant, but it may
be collected out of personal property owned by him jointly with
the other defendants who were summoned or with any of them
and out of the real and personal property of the latter or of any
of them.

[Code, § 1935, without change; made applicable to justice
court practice by Code, § 3020. ]

§ 410, Action against defendants not personally summoned.
After the recovery of a judgment against joint debtors an action
may be maintained by the judgment creditor against one or more
of the defendants who were not summoned in the original action
to recover the sum remaining unpaid on the original judgment.

[Code, § 1937, rewritten, by providing for an action to recover
the amount of the original judgment instead of an action to
charge property of the defendants not served. ]
Justice Courr Act 1033

§ 411. Complaint in such action. The complaint in such an
action must be verified, must ‘contain an allegation that the
judgment has not been paid and must state the sum remaining
unpaid thereon at the time of the verification.

[Code, § 1938, without change. ]

§ 412. Answer. The defendant’s answer is restricted to
defenses or counterclaims which he might have made in the
original action if the summons therein had been served on him
when it was first served on a defendant jointly indebted with
him, objections to the judgment, and defenses or counterclaims
which have arisen since it was rendered.

[Code, § 1939, without change. ]

§ 413. Provisional remedies. For the purpose of obtaining an
order of arrest or a warrant of attachment the action is regarded
as being founded on the contract on which the original judgment
was recovered.

[Code, § 1940, without change, except the omission of the
words, “an injunction order,” as being inapplicable to justices’
courts. |

§ 414, Judgment. Where the judgment is in favor of the
plaintiff it must determine the sum remaining unpaid on the
original judgment; and it may be docketed and an execution
issued thereon as if it was a judgment for the sum so remaining
unpaid and the costs if any. Costs must be awarded as if the
action was brought on the original contract and the sum so
remaining unpaid had been recovered therein.

[Code, § 1941, without change. ]

ARTICLE 16
ANIMALS STRAYING ON HIGHWAYS

Section 415. Action against person suffering animals to stray.
416. Penalties to be recovered.
417. Certain officers to seize animals straying.
418. When private person may seize such animals.
419. Officer or person seizing to present petition,
1034 Report or Jornt LeaisiaTIvE CoMMITTER

Section 420.
421.
429,
423.
424,

425.
426.
427.

428.
429,

4380.

431.
432.
433.
434,

435.

436.
437.
438.

439,
440.
441,
449.

443.
444,
445...
446.

447,
448.

Precept thereupon.

Precept; how served.

Proof of service of precept.

Answer; trial.

Decision in favor of petition; warrant to sell.
execution thereof.

Application of proceeds of sale.

Disposition of surplus.

Disposition of surplus when no claim made within
a year.

Order upon claim for surplus; appeal therefrom.

Proceedings upon decision in favor of person
answering.

Demand of possession before trial; proceedings
thereupon.

When animal wilfully set at large by third person.

Action. by owner in such a ease.

Action by petitioner and by, officer.

Demand of possession after final order and before
“sale.

Order upon demand of possession; appeal there-
from.

Stay of proceedings.

Appeal from final order.

Appeal by claimant; stay of proceedings and
delivery of possession.

Proceedings upon affirmance.

Limitation of action for seizing animals.

Certain actions cannot be maintained.

Where several animals are trespassing damages
are entire; proceedings in such cases.

Proceedings in other cases, where there are different
owners.

Surplus where there are different owners.

When one action supersedes any other.

Rights of officers when private person fails to prose-
cute. —

Person having a special property deemed owner.

Agent may act for his principal.

§ 415, Action against person suffering animals to stray. Any
person who suffers or permits one or more eattle, horses, colts,
Justice Court Act 1035

asses, mules, swine, sheep or goats to run at large or to be herded
or pastured in a public street, highway, park or place, elsewhere
than in a city, incurs thereby the penalty or penalties specified
in the next section; and any resident of the town, or the officer
to whom a fine or penalty is to be paid for the benefit of the
poor, as prescribed in section [twenty-eight hundred and seventy-
five] twenty-four of this act, or the overseer or superintendent of
the poor of the town or district in which one or more of those ani-
mals are found so running at large, herded or pastured may main-
tain an action against him in a justice’s court held in that town or
district to recover the penalty or penalties so incurred. Where the
action is brought by a private person the justice must pay the pro-
ceeds of an execution issued upon a judgment therein in favor of
the plaintiff after deducting the costs to the officer who might have
brought the action, as prescribed in this section, to be applied by
him to the support of the poor within his town or district.

[Code, § 3082, without change. ]

§ 416. Penalties to be recovered. If the plaintiff recovers judg-
ment in an action brought as prescribed in the last section the jus-
tice must award to him the following sums by way of penalties
besides the costs of the action: :

1. For each horse, colt, ass, mule, swine, bull, ox, cow or calf
five dollars;

2. For each sheep or goat one dollar.

The entire amount of the penalties may be recovered in one
action although it exceeds the sum for which a justice can render
a judgment in an ordinary action.

[Code, § 3083, without change. ]

§ 417. Certain officers to seize animals straying. Where one or
more cattle, horses, colts, asses, mules, swine, sheep or goats are
found running at large or being herded or pastured in a public
street, highway, park or place, elsewhere than in a city, the over-
seer of highways of the road district or, if they are so found within
an incorporated village, the street commissioner thereof, having
personal knowledge or being notified of the fact must immediately
seize the animal or animals and keep it or them in his possession
until disposed of as prescribed in the following sections of this
[title] article.

[Code, § 3084, without change. ]
1036 Report or Joint Lraisinative’ ComMItrer

§ 418, When private person may seize such animals. Any per-
son may seize one or more animals specified in the last section,
then running at large or being herded or pastured in a public street,
highway, park or place, elsewhere than in a city, bordering upon
real property owned or occupied by him, or then trespassing upon
real property so owned or occupied, having entered thereupon from
such a public street, highway, park or place. The person making
the seizure must keep the animal or animals seized in his posses-
sion until disposed of as prescribed in the following sections of
this [title] article.

[Code, § 8085, without change. ]

§ 419. Officer or person seizing to present petition. An officer
or other person who seizes an. animal or animals, as prescribed
in either of the last two sections, must immediately file: with a
justice of the peace of the town in which the seizure was made
a written petition verified by his oath setting forth the facts which
bring the case within either of those sections, briefly describing the
animal or animals seized, stating either the name of the owner
or that his name is not known to the petitioner and cannot be ascer-
tained by him with reasonable diligence, and praying for a final
order directing the sale of the animal or animals seized and the
application of the proceeds thereof as prescribed in this [title]
article. Where the petition alleges that any animal or animals
seized were then trespassing upon real property owned or occupied
by the petitioner, it must state the amount of the damages, if any,
which the petitioner has sustained thereby. In that case the
decision of the justice or, where the issues are tried by a jury, the
verdict must fix the amount of the damages.

[Code, § 3086, without change. ]

§ 420, Precept thereupon. Upon the presentation of the peti-
tion the justice must issue a precept under his hand directed to the
owner, if his name is stated in the petition, or, if it is not so stated,
directed generally to all persons having any interest in the animal
or animals seized, briefly reciting the substance of the petition,
describing the animal or animals seized and requiring the person
or persons to whom the precept is directed to show cause before the
justice at a time and place specified therein, not less than ten nor
Justice Courr Act 1037

more than twenty days after the issuing of the precept, why the
prayer of the petition should not be granted.

[Code, § 3087, without change. ]

§ 421. Precept; how served. The precept must be served upon
the person to whom it is directed by his name within the same
time and in like manner as a summons is required to be served, as
prescribed in section [twenty-nine hundred and ten] one hundred
and six of this act. Where it is directed generally to all persons
having an interest in the animal or animals seized, it may be
served by a constable of the town, or by an elector thereof specially
authorized so to do by a written indorsement upon the precept,
under the hand of the justice, by posting a copy thereof in at least
six public and conspicuous places in the town where the seizure
was made, one of which places must be the nearest district school
house, or, if the seizure was made within an incorporated village
having schools in charge of a board of education, a building in
which such a school is kept. Each copy must be so posted within
two days after the precept is issued. Where the precept is directed
to a person by his name and proof is made by affidavit to the satis-
faction of the justice that it cannot with reasonable diligence be
personally served upon that person within the county at least six
days before the return day thereof, the justice may by a written
order direct that service thereof be made by posting copies thereof
at least five days before the return day, as prescribed in this sec-
tion, in which case, service thereof may be made accordingly.

[Code, § 3088, without change. ]

§ 422. Proof of service of precept. At the place where the pre-
cept is returnable and at the expiration of the time specified in
section [twenty-eight hundred and ninety-three] two hundred and
siaty-five of this act, the petitioner must, unless the precept is
directed to a person by his name and he appears, furnish proof of
the service of the precept, as prescribed in the last section. If it
was served by a constable, either personally or by posting, his
written return upon the precept is sufficient proof of the facts
relating to the service as stated therein. If it was served by a
private person, proof of service must be made by affidavit.

[Code, § 8089, without change. ]
1038 Revorr or Joint Lecisnative ComMirrer

§ 423. Answer; trial. The owner, or a person having an interest
in any animal seized, may appear upon the return of the precept
and thereby make himself a party to the special proceeding. The
person so appearing may, upon the return of the precept, file a
written answer, subscribed by him or his attorney and verified by
the oath of the person subscribing it, denying absolutely or upon
information and belief one or more material allegations contained
in the petition. His answer must also set forth his interest in the
animal or animals seized. The subsequent proceedings must be
the same as in an action in a justice’s court wherein an issue of
fact has been joined, except as otherwise specially prescribed in
this [title] article.

[Code, § 3090, without change. ]

§ 424. Decision in favor of petitioner; warrant to sell; execution
thereof. If no person appears and answers or if the decision of
the justice or the verdict of the jury, where the issues were
tried by a jury, is in favor of the petitioner, the justice must make
a final order directing the sale of the animal or animals seized and
the application of the proceeds thereof, as prescribed in this [title]
article. Thereupon the justice must issue a warrant under his hand
directed generally to any constable of the county commanding him
to sell the animal or animals seized at public auction for the best
price which he can obtain therefor and to make return thereof to
the justice at a time and place therein specified not less than ten
nor more than twenty days thereafter. The sale must be made
upon the like notice and in like manner as a sale of property by
virtue of an execution issued by a justice of the peace, and the con-
stable must make return as required by the warrant and must pay
the proceeds of the sale to the justice, deducting therefrom his fees
at the rate allowed by law for the collection of such an execution.

[Code, § 3091, without change. ]

§ 425, Application of proceeds of sale. The justice must apply
the proceeds of the sale as follows:

1. He must pay the costs of the petitioner as taxed by the justice
at the same rates as the costs of an action brought before him,
including the justice’s fees in such an action; and also the fees
for the service of the precept, either personally or by posting, at
the rate allowed by law for personal service of a summons by a
constable.
Justice Courr Act 1039

2. Out of the remainder of the proceeds he may retain to his
own use a fee of one dollar for each animal gold.

3. Out of the remainder of the proceeds he must pay to the off-
cer or other person making the seizure the following fees for the
seizure of each animal seized and sold, to wit: one dollar for each
horse, colt, ass or mule; fifty cents for each bull, ox, cow or calf;
and twenty-five cents for each goat, sheep or swine; together with
a reasonable compensation fixed by him for the care and keeping of
each animal from the time of the seizure to the time of the sale;
and also where any animal sold was seized while trespassing upon
real property owned or occupied by the petitioner, the damages
sustained by the petitioner in conscquence thereof as ascertained
by the decision of the justice or the verdict of the jury upon which
the final order was made.

4. Out of the remainder of the proceeds he must pay to. the
officer to whom a fine or penalty is to be paid for the benefit of
the poor, as prescribed in section {twenty-eight hundred and
seventy-five] twenty-four of this act, the following penalties, to
wit: five dollars for each horse, colt, ass, mule, bull, ox, cow, calf
or swine seized and sold; and one dollar for each sheep or goat
seized and sold; which penalties must be received by the officer for
the benefit of the poor of his town or district.

5. If any surplus remains he must pay the same to the person
or persons entitled thereto as prescribed in the following sections
-of this [title] article.

[Code, § 8092, without change. ]

§ 426. Disposition of surplus. Any person may within ten days
after the return of the warrant file with the justice a written claim
to the surplus of the proceeds of the sale or to any part thereof.
On the eleventh day after the return or, if it is a Sunday or a
public holiday, on the first day thereafter which is neither Sunday
nor a public holiday, the justice must proceed to inquire into the
claims so filed; and, for the purpose of determining them, he must
hear the allegations and proofs of each claimant; and he may issue
subpoenas, as upon the trial of an action. He may upon the appli-
cation of any claimant and for good cause shown adjourn the hear-
ing from time to time but not more than thirty days in all. After
hearing the allegations and proofs of all the claimants he must
decide the claims and enter an order accordingly. If no claim is
filed or if the right to the surplus money or any part thereof is
1040 Revorr or Joinr Lecisuative ComMirrer

not established to the satisfaction of the justice, as prescribed in
this section, any person whose claim was not determined upon the
hearing may ‘file a claim thereto at any time before the expiration
of a year from the return of the warrant; and, thereupon, the jus-
tice must proceed as prescribed in this section with respect to a
claim filed within the ten days. .

[Code, § 3093, without change. ]

§ 427. Disposition of surplus when no claim made within a year.
If at the expiration of one year after the return of the warrant
any portion of the surplus remains a claim to which has not been
established to the satisfaction of the justice pursuant to the pro-
visions of the last section, the justice must pay it for the benefit
of the poor to the officer to whom a fine or penalty is to be paid for
the benefit of the poor, as prescribed in section [twenty-eight hun-
dred and seventy-five] twenty-four of this act; and, thereupon, all
persons are forever barred from any claim thereto. But if a claim,
filed as prescribed in the last section, remains undetermined at
the expiration of the year, the justice must determine it within
ten days thereafter; and, for that purpose, he must retain the
surplus in his hands until the determination. *

[Code, § 8094, without change. ]

§ 428. Order upon claim for surplus; appeal therefrom. An
appeal from an order determining a claim, as prescribed in the
last two sections, may be taken to the county court by a claimant
within ‘ten days after the making of the order, as from a judgment
of a justice in an action to recover a sum equal to the claim; and
the proceedings thereupon are the same, except that an under-
taking is not necessary for any purpose. Upon such an appeal
each other claimant whose interest is affected by the order appealed
from must be made a respondent. If there is no such claimant
the officer entitled to the surplus must be made respondent; but
costs cannot be awarded against him unless he appears upon the
appeal, in which case the costs are in the discretion of the appellate
court. Where an appeal, taken as prescribed in this section, is
perfected the county judge may in his discretion make an order
extending the time within which payment of the surplus must be
made as prescribed in the last section and staying payment accord-
ingly. Unless such an order is made and a copy thereof is served
Justice Courr Acr 1041

upou the justice, payment must be made as prescribed in the last
section notwithstanding the appeal; and upon proof of the pay-
ment the appeal must be dismissed. Where an appeal is taken to
the supreme court from the determination of the county court the
county judge or a justice of the supreme court may make a like
order and with like effect.

[Code, § 3095, without change. ]

§ 429, Proceedings upon decision in favor of person answering.
If the decision of the justice, or the verdict of the jury where the
issues are tried by a jury, is in favor of the person answering, it
must fix the value of cach animal seized. If the justice or the
jury find that the seizure was malicious and without probable
cause, the decision or verdict must assess the damages sustained
by the person answering by means of the seizure and detention.
The justice must thereupon make a final order awarding to
the person so answering the return of the animal or animals so
‘seized or the value thereof if a return cannot be had, together with
his costs at the rates allowed by law in an action brought before
him to recover a chattel and also twice the sum assessed as his
damages if any. Thereupon a warrant must be issued by the jus-
tice to a constable to the same effect as an execution issued in an
action to recover a chattel upon a judgment in favor of the defend-
ant where the chattel has not been delivered to him; and each pro-
‘vision of this [chapter] act relating to a judgment and an execu-
tion in such a case applies to a final order made and a warrant
issued thereupon as prescribed in this section.

[Code, § 3096, without change. ]

§ 430. Demand of possession before trial; proceedings thereupon.
At any time after the precept is issued, and before the commence-
ment of the trial, the owner of any animal seized may file with
the justice a written demand of the possession thereof. Thereupon
he is entitled to the possession, upon complying with the following
terms : .

1. He must pay to the justice for the use of the petitioner the
costs of the proceedings to the time of filing the demand, as pre-
scribed in subdivision one of section [three thousand and ninety-
two] four hundred and twenty-five of this act, and also the sums
payable on account of each animal whereof possession is so
10-42 Revorr ov Joinry Leaistarive ComMrirren

deminded, as prescribed in subdivision three of the same section ;
which sums must be fixed by the justice after hearing the allega-
tions and proofs of the parties.

2. He must also pay to the justice a fee of one dollar for each
animal whereof possession is so demanded.

3. If the petitioner is an officer to whom a fine or penalty is to
be paid for the benefit of the poor, as prescribed in section
[twenty-eight hundred and seventy-five] twenty-four of this act,
the claimant must also pay to the justice for the petitioner’s use
the sum specified therein on account of each animal whereof pos-
session is so demanded.

4, The claimant must also prove to the satisfaction of the jus-
tice by affidavit or other competent evidence that he is the owner
of each animal whereof possession is so demanded. Each person
who has appeared must have notice of and may oppose the claim.

[Code, § 3097, without change. |

§ 431. When animal wilfully set at large by third person. [But
w] Where, in a case specified in the last section, the person filing a
demand presents therewith to the justice suffieient proof by aff-
davit or otherwise that the running at large, herding, pasturing or
trespassing, by reason whereof the animal or animals of which he
demands possession were seized, was caused by the wilful act,
intended to effect that object, of a person other than the owner,
and also makes the proof specified in subdivision four of that
section, he is entitled to possession, pursuant to his demand, upon
paying to the petitioner, or to the Justice for his use, a reasonable
sum to be fixed by the justice after hearing the allegations and
proofs of the parties as compensation for the care and keeping of
the animal or animals whereof possession is so demanded and with-
out paying any other sum specified in the last section.

[Code, § 3098, without change. ]

§ 432. Action by owner in such a case. The owner of an
animal, seized in consequence of a wilful act specified in the last
section, may recover in an action against the person who com-
mitted it all damages sustained by him in consequence thereof
including the sum paid in order to recover possession of the animal
as prescribed in the last section; and, in addition thereto, the sum
of twenty dollars for each animal seized.

[ Code, § 3099, without change. |
Justice Courr Act 1043

§ 433, Action by petitioner and by officer. Where the posses-
sion of an animal has been delivered, as prescribed in the last
section but one, an action may also be maintained by the petitioner
in the special proceeding before the justice against the person who
committed the wilful act to recover, in addition to all other
damages sustained by the plaintiil in consequence of the wilful act,
all sums to which the plaintiff would have been entitled out of the
procceds of the sale as prescribed in section [three thousand and
ninety-two] four hundred and twenty-five of this act, other than
the compensation paid for the care and keeping of the animal. In
the like case, if the petitioner is a private person, the officer to
whom a fine or penalty is to be paid for the benefit.of the poor,
as prescribed in section [twenty-eight hundred and seventy-five]
twenty-four of this act, may maintain an action against the person
who committed the wilful act to recover the penalties to which the
plaintiff would have been entitled out of the proceeds of the sale
as prescribed in that subdivision. Neither of the actions specified
in this or the last section is affected by the pendency of, or the
recovery of judgment in, either of the others.

[Code. § 3100, without change. ]

§ 434. Demand of possession after final order and before sale.
A person, entitled to demand the possession of an animal, as pre-
scribed in section [three thousand and ninety-seven] four hundred
and thirty of this act, who did not appear upon the return of the
precept or upon the trial, may file with the justice a written
demand of the possession at any time after the final order and not
less than three days before the time appointed for the sale; and,
thereupon, he is entitled to the possession upon complying with the
following terms:

1. He must furnish by affidavit or other competent evidence a
sufficient excuse to the satisfaction of the justice for his failure to
appear.

2. He must in all respects comply with the provisions of section
[thirty hundred and ninety-seven] four hundred and thirty of
this act, except that it is necessary for him to pay only one-half
of the justice’s fees, as prescribed in subdivision two of that sec-
tion, and one-half of the fees payable to the petitioner for the
seizure of each animal as prescribed in subdivision three of section
[thirty hundred and ninety-two] four hundred and twenty-five
of this act.

[Code, § 3101, without change. ]
1044 Revorvr or Jornr Leaisuative ComMMirrer

§ 485, Order upon demand of possession; appeal therefrom.
Where a demand for the return of the possession of an animal is
filed as prescribed in either of the last five sections, the justice
must, at the request of either party thercto, make and enter in his
minutes an order determining the same. An appeal from such an
order may be taken to the county court by the person making the
demand or by either party to the special proceeding at any time
before the final order in the special proceeding is made; and each
person or party so entitled to appeal must be made a respondent
upon an appeal taken by one of the others. The appeal must be
taken in like manner as an appeal from a judgment of the justice
in an action to recover a chattel; and the proceedings thereupon
are the same except as otherwise prescribed in the next section.

[Code, § 3102, without change. ]

§ 436, Stay of proceedings. An appeal from an order specified
in the last section is not effectual for any purpose unless the appel-
lant procures from the county judge an order directing a stay of
the proceedings upon the petition and a stay of the execution of
the order appealed from and files it with the justice within the
time allowed for the appeal. The order may be granted or refused
in the discretion of the county judge, or granted upon such terms
as to security or othcrwise as he thinks proper; and it may be
vacated or modified, either absolutely or unless further security is
given, in his discretion.

[Code, § 3103, without change. ]

§ 437. Appeal from final order. Within ten days after a final
order upon a petition is made, as prescribed in this [title] article,
an appeal therefrom may be taken by the petitioner, or by the
person answering, in like manner as an appeal from a judgment
of the justice in an action to recover a sum of money, equal to the
value of the animal or animals, and the proceedings thereupon are
the same, except as otherwise prescribed in the next section.

[[Code, § 3104, without change. ]

§ 438. Appeal by claimant; stay of proceedings and delivery of
possession. An appeal from a final order taken, as prescribed in
the last section, by the person answering is not effectual for
any purpose unless the appellant files with the notice of appeal
Justice Court Act 1045

an order of the county judge, or, if he is absent from the county,
of a justice of the supreme court, reciting that the appeal has been
perfected and that security has been given thereupon, as prescribed
in this section, and directing a stay of proceedings upon the final
order appealed from and that the possession of the animal or ani-
mals seized be delivered to the appellant. The order can be made
only where an undertaking is given by the appellant as required
for the purpose of perfecting an appeal from a judgment and stay-
ing the execution thereof; and also an undertaking in the same or
another instrument to the effect that, if the final order appealed
from is affirmed or if the appeal is dismissed, the appellant will
pay all sums which the justice awards against him upon the hear-
ing after the determination of the appeal, as prescribed in the next
section, not exceeding a sum specified therein; which must be at
least twice the amount of all the sums which might be deducted
from the proceeds of the sale, as prescribed in section [thirty hun-
dred and ninety-two] four hundred and twenty-five of this act.
The sum must be fixed and the undertaking must be approved by
the judge who grants the order. Upon filing the order with the
justice the appellant is forthwith entitled to the possession of the
animal or animals seized.

[Code, § 3105, without change.

§ 439, Proceedings upon affirmance. If the final order appealed
from is affirmed upon an appeal taken by the person answering
the county court must appoint a time and place at which the jus-
tice must fix the sums payable by the appellant pursuant to his
undertaking. The justice may adjourn the hearing to another
place and to another time not exceeding three days after the time
so appointed. The justice must fix the sums so payable as if a
warrant for the sale of the animals seized had been returned and
the proceeds thereof paid to him by the constable, as prescribed
in section [thirty hundred and ninety-two] four hundred and
twenty-five of this act. The undertaking upon the appeal inures
to the benefit of each officer to whom any sum is payable, as pre-
scribed in that section; and, with respect to any of those sums, the
respondent is a trustee for the officer entitled thereto.

[Code, § 3106, without change. ]

§ 440. Limitation of action for seizing animals. Where an animal
is seized upon the ground that it was running at large or was being
herded or pastured or was trespassing contrary to the provisions of
this [title] article, and the officer or other person making the seiz-
1046 Rervort or Jotnt Leas iarive ComMirrre

ure immediately files his petition and diligently prosecutes the
same, as prescribed in this [title] article, an action to recover the
animal go seized or to recover damages for the seizure or for any
act subsequent thereto must be commenced within one year after
the cause of action accrues.

[Code; § 3107, without change. ]

§ 441. Certain actions cannot be maintained. A person to whom
the precept was directed by his name and who was personally
served therewith or a person who has appeared and answered in
the special proceeding or demanded the return of any animal
seized cannot maintain an action against the officer or other per-
son seizing an animal, or a person acting by his command or in
his aid, in a case specified in the last section. But, except as
specified in this section, the owner of an animal seized or detained
under color of any provision of this [title] article may maintain
an action to recover the animal or its value or damages for the
seizure or detention or for any unlawful act subsequent thereto,
if, in fact, the animal was not at the time of the seizure running
at large or being herded or pastured or trespassing, as the case may
be, as specified in the foregoing provisions of this [title] article.

[Code, § 3108, without change. ]

§ 442, Where several animals are trepassing, damages are entire;
proceedings in such cases. For the purpose of determining the
damages sustained by the petitioner where two or more animals
are found simultaneously trespassing upon real property owned
or oecupied by him, all the damage done by all the animals seized
is to be regarded as done by them jointly; and the petitioner’s
remedy therefor is entire and must be enforced against all the
animals and the proceeds of the sale thereof. Where different
persons who are known own different animals seized, the precept
must be directed to all of them by their names. If one or more
of the owners are known and the others are unknown and cannot
be ascertained with reasonable diligence, the precept must be
directed to cach known owner by his name, and, also generally to
all persons having an interest in those animals the owners of which
are unknown. In a ease specified in this section, a demand of
the possession of an animal seized cannot be made, as prescribed
in section [thirty hundred and ninety-seven or thirty-one hundred
Justicn Court Act 1047

and one] four hundred and thirty or four hundred and thirty-four
of this act, unless it is made with respect to all the animals seized
and by persons entitled to the possession of all of them. But a
separate demand may be made, as prescribed in section [thirty
hundred and ninety-eight] four hundred and thirty-one of this
act, by each owner of one or more animals seized; in which case, if
possession is delivered to him as prescribed in that section, the
petitioner’s remedy for his damages is the same with respect to
the animal or animals of which possession is not so delivered and
against the proceeds of the sale thereof as if those, whereof
possession is so delivered, had not been trespassing upon the
property.
[Code, § 3109, without change. ]

§ 443, Proceedings in other cases, where there are different
owners. Where the petitioner does not allege that the animals
seized were trespassing upon real property owned or occupied by
him, and different persons own different animals seized, a separate
special proceeding may be instituted, as prescribed in this [title]
article, against each owner, or against any two or more owners, with
respect to the animals owned by him or them. Or the proceedings
may be taken against all the owners jointly, in which case each
person to whom the precept is directed by his nate and each
person having an interest in an animal seized has the same right
to demand the possession of the animal owned by him and the
same right to answer separately as if the special proceeding was
against him separately, and the final order may be in favor of one
or more of the persons so answering with respect to the animal or
animals owned by him or them and for his or their costs, and
against the remainder cf the persons answering or to whom the
precept was directed or for the sale of the remainder of the animals
in like manner as if the former persons had not answered or had
not been named in the precept. But the person first making a
demand of the possession of any animal seized must pay all the
costs to the time of the demand; and a person subsequently
‘making a demand is excused from the payment of any costs except
those which have accrued since the former demand.

[Code, § 3110, without change. ]

§ 444. Surplus where there are different owners. Where proceed-
ings are taken jointly against different persons who own different
1048 Report or Jornr Learsnative Commirren

animals seized, as prescribed in either of the last two sections,
the surplus remaining in the justice’s hands must be distributed
between them in proportion to the value of the animals owned by
each to be determined by the justice. Any owner may claim
separately his proportion of the surplus; and sections [thirty
hundred and ninety-three, and thirty hundred and ninety-four]
four hundred and twenty-six and four hundred and twenty-seven
of this act apply to a claim made, and to the disposition of the
surplus arising, as prescribed in this section.

[Code, § 3111, without change. ]

§ 445, When one action supersedes any other. Where two or
more persons, or an officer and a private person, are authorized
by this [title] article to bring an action or to seize an animal and
take the proceedings prescribed in this [title] article for the dis-
position thereof, the commencement of an action or the seizure of
the animal by either of them supersedes the right of any of the
others to bring such an action or to make such a seizure with
respect to the animal seized or in question in the action. But the
justice may in his discretion allow an officer or other person who
is interested in the recovery or in the application of the proceeds
of the sale to appear in the action or special proceeding for the
purpose of protecting his interest and to take such part in the
proceedings therein as the justice thinks proper.

[Code, § 3112, without change. ]

§ 446. Rights of officers when private person fails to prosecute.
Where a seizure is made by a private person as prescribed in this
[title] article, and the possession of an animal seized is abandoned
by him without filing a petition, or where an action, brought by
a private person as prescribed in this [title] article, is settled or
discontinued by the plaintiff, the officer to whom a penalty is pay-
able, as prescribed in section [thirty hundred and eighty-three]
four hundred and statecn of this act or in subdivision four of see-
tion [thirty hundred and ninety-two] four hundred and twenty-
five of this act, may, unless he has assented to the abandonment,
settlement or discontinuance, maintain an action against the
owner of the animal in question to recover the penalty so payable
to him; and, upon proof of the facts, which would have entitled
Justice Courr Acr 1049

the plaintiff in the former action, or the petitioner in the special
proceeding, to recover, he is entitled to judgment accordingly.

~ [Code, § 3113, without change. ]

§ 447. Person having a special property deemed owner. When a
person is at the time of the seizure entitled to the possession of
an animal as against the general owner thereof by virtue of a

special property therein he is deemed for all the purposes of this
[title] article the owner thereof.

[ Code, § 3114, without change. ]

§ 448. Agent may act for his principal. The duly authorized
agent of the owner or person entitled to the possession of an
animal, as specified in the last section, may in his own name
answer, make any demand or take any other proceeding which the
owner or person so entitled may take as prescribed in this [title]
article.

[Code, § 3115, without change. ]

ARTICLE 17

SUMMARY PROCEEDINGS TO RECOVER POS-
SESION OF REAL PROPERTY

Section 450. When tenant may be removed.
451. Additional cases in which tenants and others may
be removed.
452. In case of forcible entry or detainer.
453. Application; to whom made.
454, Application; by whom made.
455. Contents of petition.
456. Notice to be given in certain cases.
457. Petition by neighbor of bawdy-house or apartment.
458. Precept; contents.
459. Precept; return.
460. Precept; in New York city.
461. Precept; how served.
462. Duty of person to whom copy of precept is delivered.
1050 Revorr ov Jouve Lecisuarivs Commirrin

Section 463. When precept to be served on landlord of bawdy-

house or apartment.

464. Proof of service of precept.

465. Answer.

466. Issues upon forcible entry or detainer.

467. In New York municipal court cause may be trans-
ferred to another court for trial.

468. Trial.

469. Adjournment.

470. Final order upon trial.

471. Amount of costs; how collected.

472. Warrant to dispossess defendant.

473. Execution of warrant.

474. When warrant cancels lease; exceptions.

475. Stay.

476. Undertaking; how disposed of.

477. Redemption by lessee.

478. Redemption by creditor of lessee.

479. Effect of redemption upon lease.

480. Order to be made thereon; liability of persons
redeeming.

481. Appeal.

482. Effect of appeal limited in certain cases.

483. Warrants; how stayed, on appeal.

484, Appellate court may award restitution; action for
damages.

485. Application of article; effect of final order.

486. How proceedings under this article may be stayed.

§ 450. When tenant may be removed. In cither of the following
cases, a tenant or lessee at will, or at sufferance, or for part of
a year, or for one or more years, of real property, including a
specific or undivided portion of a house or other dwelling, and
his assigns, undertenants or legal representatives, may be removed
therefrom, as prescribed in this article [title]:

1. When he holds over and continues in possession of the
demised premises or any portion thereof after the expiration ot
his term without the permission of the landlord, including, else-
where than in the city of New York [and Brooklyn], a case where
the person to be removed became the occupant of the premises as
a servant or employee and the relation of master and servant or
Jusricr Courr Act 1051

employer and employee has been lawfully terminated or the time
fixed for such occupancy by the agreement between the parties
has expired; but if by such agreement the servant was to be per-
mitted to occupy such premises for a period beyond the term of
employment such removal shall not be had under this subdivision
unless such period so permitted for oceupancy has expired or the
relation of master and servant or employer and employee was
lawfully terminated before the expiration of such term of employ-
ment; but nothing in this subdivision [contained] shall be con-
strued as preventing the removal of such occupant in any other
lawful manner;

2. Where he holds over, without the like permission, after a
default in the payment of rent, pursuant to the agreement under
which the demised premises are held, and a demand of the rent
has been made, or at least three days’ notice in writing requiring,
in the alternative, the payment of the rent, or the possession of
the premises, has been served in behalf of the person entitled to
the rent upon the person owing it as prescribed in this [title]
article for the service of a precept;

3. Where in any city in this state he holds over and continues
in possession of the demised premises, or any portion thereof,
after default in the payment, for sixty days after the same shall
be payable, of any taxes or assessments levied on such demised
premises which he has agreed in writing to pay pursuant to the
agreement under which the demised premises -are held, and a
demand for the payment of such taxes or assessments has been
made, or at least three days’ notice in writing, requiring in the
alternative the payment thereof and of any interest and penalty
thereon, or the possession of the premises, has been served in
behalf of the landlord upon the lessee, as prescribed in this [title]
article for the service of a precept. An acceptance of any rent by
the lessor or his legal representatives shall not be construed as a
waiver of the agreement of the lessee to pay taxes or assessments
so as to preclude the lessor from the benefits of this [chapter.]
article ;

4. Where he, being in possession under a lease for a term of
three years or less, has during the term taken the benefit of an
insolvent act or has been adjudicated a bankrupt under a bankrupt
law of the United States;

5. Where the demised premises, or any part thereof, are used
or occupied as a bawdy-house, or house or place of assignation for
1052 Reporr or Joint Leaisnatrive ComMirree

lewd persons, or for purposes of prostitution, or for any illegal
trade or manufacture, or other illegal business.

[Code, § 2231, without change. ]

§ 451. Additional cases in which tenants and others may be
removed. In either of the following cases a person who holds over
and continues in possession of real property after notice to quit
the same has been given, as prescribed in section [2236] four
hundred and fifty-six of this act, and his assigns, tenants or legal
representatives may be removed therefrom, as prescribed in this
[title] article:

1. Where the property has been sold by virtue of an execution
against him or a person under whom he claims and a title under
the sale has been perfected ;

2. Where the property has been duly sold upon the foreclosure
by advertisement [by proceedings taken as prescribed in title
ninth of this chapter,] of a mortgage executed by him or a person
under whom he claims and the title under the foreclosure has been
duly perfected ;

3. Where he occupies or holds the property under an agreement
with the owner to occupy and cultivate it upon shares or for a
share of the crops and the time fixed in the agreement for his
occupancy has expired ;

4. Where he or the person to whom he has succeeded has
intruded into or squatted upon any real property without the
permission of the person entitled to the possession thereof and
the occupancy thus commenced has continued without permission
from the latter; or, after a permission given by him has been
revoked, and notice of the revocation given to the person or per-

.sons to be removed.

[Code, § 2232, without change. ]

§ 452. In case of forcible entry or detainer. An entry shall not
be made into real property, but in a case where entry is given by
law; and, in such a case, only in a peaceful manner, not with
strong hand, nor with multitude of people. A person who makes
a forcible entry forbidden by this section, or who, having peaceably
entered upon real property, holds the possession thereof by force,
and his assigns, under-tenants, and legal representatives, may be
removed therefrom, as prescribed in this [title] article.

[Code, § 2233, without change. ]
Justice Court Act 1053

§ 453. Application; to whom made. Application for the removal
of a person from real property, as prescribed in this article, may
be made to a justice of the peace of a town, or if the property is
situated in an incorporated village which includes parts of two or
more towns, to a justice of the peace of either town who keeps an
office in the village. Application may also be made to the county
judge or special county judge; or in the county of New York to
a judge of the city court of the city of New York; to a justice of
the peace of a city; to a judge or justice of any inferior local
court of civil jurisdiction in a city; to the recorder of a city; in
the city of New York to the municipal court of the municipal
court district in which the real property or a portion thereof is
situated, or if the justice sitting therein is disqualified, to the
municipal court in an adjoining district.

Except as provided in this section such jurisdiction shall only be
exercised by a court or officer of the county, town, city or municipal
court district in which the real property or a portion thereof is
situated.

[Code, § 2234, rewritten. Jurisdiction of mayors of cities,
and of police justices in Brooklyn, is omitted. The provisions of
§ 2234, specifically conferring jurisdiction on lol inferior courts
of civil jurisdiction in Albany, Troy, Yonkers, Syracuse,
Rochester and Buffalo, are omitted as covered by the general terms
of the section, as rewritten. |

§ 454, Application; by whom made. The application may be
made by:

1. The landlord or lessor of the demised premises;

2. The purchaser upon the execution or foreclosure sale;

3. The person forcibly put out or kept out;

4, The person with whom, as owner, the agreement was made,
or the owner of the property occupied under an agreement to
cultivate the property upon shares or for a share of the crops;

5. [or] The person lawfully entitled to the possession of the
property intruded into or squatted upon, as the case requires;

6. [or by] The legal representative, agent or assignee of the
landlord, purchaser or other person so entitled to apply;

7. The person or corporation authorized by this article to pro-
ceed [under section twenty-two hundred and thirty-seven of this
act} to remove persons using or occupying premises or a part
1054 Report or Jownt Leas iative ComMMItrEr

thereof as a bawdy-house, or house or place of assignation for
lewd persons, or for purposes of prostitution.

[Code, § 2235, first part rewritten as indicated, but without
change of substance. ]

§ 455, Contents of petition. ‘The applicant must present to the
judge or justice a written petition verified in like manner as a
verified complaint in an action [brought in the supreme court],
describing the premises of which the possession is claimed and the
interest therein of the petitioner or the person whom he represents,
stating the facts which, according to the provisions of this [title]
article, authorize the application by the petitioner and the removal
of the person in possession, naming or otherwise intelligibly desig-
nating the person or persons against whom the special proceeding
is instituted, and, if there are two or more such persons and some
_ are undertenants or assigns, specifying who are principals or
tenants and who are undertenants or assigns, and praying for a
final order to remove him or them respectively.

[Code, § 2235, last part, without change, except to omit unneces-
sary words. ]

§ 456. Notice to be given in certain cases. Where the person
to be removed is a tenant at will or at sufferance the petition must
state the facts showing that the tenancy has been terminated by
giving notice as required by law. Where the application is made
in a case specified in section [2232] four hundred and fifty-one
of this act, the petition must state that a notice in behalf of the
applicant requiring all persons occupying the property to quit
the same by a day therein specified has been either served person-
ally upon the person or persons to be removed or affixed conspicu-
ously upon the property at least ten days before the day specified
therein.

[Code, § 2236, without change. ]

§ 457. Petition by neighbor of bawdy-house or apartment. Av
owner or tenant, including a tenant of one or more rooms of an
apartment house or tenement house, of any premises within two
hundred fect from other demised real property used or oceupied in
whole or in part as a bawdy-house, or honse or place of assignation’
for lewd persons, or for purposes of prostitution, or any domestic
Justicr Cotrr Act 1055

corporation organized for the suppression of vice, subject to or
which submits to visitation by the state board of charities and
possesses a certificate from such board of such fact and of con-
formity with its regulations, may serve personally upon the owner
or landlord of the premises so used or occupied, or upon his agent,
a written notice requiring the owner or landlord to make an appli-
cation for the removal of the person so using or occupying the
same. If the owner or landlord, or his agent, does not make such
application, within five days thereafter; or, having made it, does
not in good faith diligently prosecute it, the person or corporation
giving the notice may make an application for such removal on a
vetition stating the jurisdictional facts which applieation shall
have the same effect, except as otherwise expressly prescribed in
this article [title], as though the applicant were the owner or
landlord of the premises, and shall have precedence over any
similar application thereafter made by such owner or landlord or
to one theretofore made by him and not prosecuted diligently and
in good faith.

Proof of the ill repute of the demised premises or of the in-
mates thereof or of those resorting thereto shall constitute pre-
sumptive evidence of the unlawful use of the demised premises
required to be stated in the petition for removal.

[Code, § 2237, without change. ]

§ 458, Precept; contents. The judge or justice to whom a
petition is presented, as prescribed in either of the foregoing sec-
tions of this [title] article, must thereupon issue a precept di-
rected to the person or persons designated in the petition as being
in possession of the property and requiring him or them forthwith
to remove from the property, describing it, or to show cause
before him at a time and place specified in the precept why pos-
session of the property should not be delivered to the petitioner, or,
in the case specified in the last section, to the owner or landlord.

[Code, § 2238, first part without change. ]

§ 459. Precept; return. The precept must be returnable not
less than three nor more than five days after it is issued; except
that, where the proceeding is taken upon the ground that a tenant
continues in possession of demised premises after the expiration
of his term without the permission of his landlord and the appli-
eation is made on the day of the expiration of the lease or on
1056 Revort or Joint Lecisuative CommMirrrer

the next day thereafter, the precept may, in the discretion of the
judge or justice, be made returnable on the day on which it is
issued at any time after twelve o’clock noon and before six o’clock
in the afternoon.

[Code, § 2238, last part without change. ]

§ 460. Precept; in New York City. In the city of New York
where the application is made to a musicipal [district] court, the
petition must be filed with, and the precept must be issued by, the
clerk of the court; and the precept must be made returnable before
the court at the place designated pursuant to law for holding the
court; and all subsequent proceedings in the cause must be had at
that place, except as otherwise prescribed in section four hun-
dred and sixty-seven [2246] of this act. If, upon the return of
the precept, or upon an adjourned day, the justice is unable by
reason of absence from the court room or sickness to hear the
cause, or it is shown by affidavit that he is for any reason dis-
qualified to sit in the cause, or is a necessary and material wit-
ness for either party, the cause may be heard in the municipal
court of an adjoining district [a justice of any other district
court of the city may act in his place at the same court room].

[Code, § 2239, without change of substance, except as indicated.
Justices of the municipal court do not now sit continuously in
their own district. ]

§ 461. Precept; how served. The precept must be served as
follows:

1. By delivering to the person to whom it is directed, or, if it
is directed to a corporation, to an officer of the corporation upon
whom a summons issued out of the supreme court in an action
against the corporation might be served, a copy of the precept
together with a copy of the petition and at the same time showing
him the original precept.

2. If the person to whom the precept is directed resides in the
city or town in which the property is situated but is absent from
his dwelling-house, service may be made by delivering a copy
thereof, together with a copy of the petition, at his dwelling-
house, to a person of suitable age and discretion who resides there ;
or, if no such person can with reasonable diligence be found
there upon whom to make service, then by delivering a copy of
Justice Court Act 1057

the precept and petition at the property sought to be recovered,
either to some person of suitable age and discretion residing
there, or, if no such person can be found there, to any person of
suitable age and discretion employed there.

3. Where service cannot with reasonable diligence be made as
prescribed in either of the foregoing subdivisions of this section,
by affixing a copy of the precept and petition upon a conspicuous
part of the property.

If the precept is returnable on the day on which it is issued, it
must be served at least. two hours before the hour at which it is
returnable; in every. other case, it must be served at least two
days before the day on which it is returnable.

[Code, § 2240, without change. ]

§ 462. Duty of person to whom copy of precept is delivered.
A: person to whom a copy of a precept directed to another is
delivered, as prescribed in this article, [title,] must, without any
avoidable delay, deliver it to the person to whom it is directed if
he can be found within the same town or city; or, if he cannot be
so found, to his agent therein; and if neither can be so found after
the exercise of reasonable diligence before the time when the
precept is returnable, to the judge or justice who issued the same
at the time of the return thereof with a written statement indorsed
thereupon that he has been unable after the exercise of reasouable
diligence to find the person to whom the precept is directed or his
agent within the town or city. A person who wilfully violates any
provision of this section is guilty of a misdemeanor; and, if he is
a tenant upon the property, forfeits to his landlord the value of
three years’ rent of the premises occupied by him. A copy of this
section must be indorsed upon each copy of a precept served other-
wise than personally upon the person to whom it is directed.

[Code, § 2241, without change. ]

§ 463. When precept to be served on landlord of bawdy-house
or apartment. | Where the case is within section [2237]
four hundred and fifty-seven of this act, the precept must
be directed to and served upon the owner or landlord
or his agent and also upon the tenant or occupant
of the property. Either or both of them may upon the return

34
1058 Reporr or Jornt Leaisuative ComMirrer

day appear and show cause why the tenant or occupant should not
be removed from the property.

[Code, § 2242, without change. ]

§ 464, Proof of service of precept. At the time when the precept
is returnable the petitioner must, unless the adverse party appears,
make due proof of the service thereof showing the time, and the
place and manner of service; and, unless service was made per-
‘sonally upon the adverse party or by affixing a copy of the pre-
cept, the name of the person to whom a copy of the precept was
delivered if his name can be ascertained with reasonable diligence.
Where service is made by a sheriff, constable or marshal, it may
be proved by his certificate stating the facts.

[Code, § 2243, without change. ]

§ 465, Answer. At the time when the precept is returnable
without waiting as prescribed in an action before a justice of the
peace, or in a municipal [district] court in the city of New York,
the person to whom it is directed or his landlord, or any person
in possession or claiming possession of the premises or a part
_ thereof, may file with the judge or justice who issued the precept,
or with the clerk of the court, a [written] verified answer[, veri-
fied in like manner as a verified answer in an action in the supreme
court,J denying generally the allegations, or specifically any
material allegation of the petition, or setting forth a statement of
‘any new matter constituting a legal or equitable defense, or
counterclaim. Such defense or counterclaim may be set up and
established in like manner as though the claim for rent in such
proceeding was the subject of an action.

[Code, § 2244, without change of substance. ]

§ 466. Issues upon forcible entry or detainer. Where the appli-
cation is founded upon an allegation of forcible entry or forcible
holding out, the petitioner must allege and prove tnat he was
peaceably in actual possession of the. property at the time of the
‘forcible entry, or in constructive possession at the time of a forcible
holding out, and the adverse party must either deny the forcible
entry or the forcible holding out, or allege in his defense that he,
or his ancestor, or those whose interest he claims, had been in
quiet possession of the property for three years together next
Justice Court Acr 1059

before the alleged forcible entry or detainer ; and that his interest
is not ended or determined at the time of the trial.

[Code, § 2245, without change. ]

§ 467. In New York municipal court cause may be transferred
to another court for trial. In a [district] municipal court of the
city of New York at the time of joining issue the justice sitting
in the cause may, in his discretion, wpon motion of either party,
or, if no justice is present, the clerk may, by consent of both
parties, make an order transferring the cause for trial to a dis-
trict court of an adjoining district which thereupon has the same
jurisdiction and power at its own court house as if the property
was situate within its district.

[Code, § 2246, without change. ]

§ 468. Trial. The issues joined by the petition and answer
must be tried by the judge or justice, unless either party to such
proceedings shall, at the time designated in such precept for show-
ing cause, demand a jury and at the time of such demand pay to
such judge or justice the necessary costs and expenses of obtain-
ing such jury. Ifa jury be demanded and such costs and expenses
be paid, the judge or justice with whom such petition shall be
filed shall nominate twelve reputable persons qualified to serve as
jurors in courts of record, and shall issue his precept directed to
the sheriff or one of the constables of the county, or any constable
or marshal of the city or town, commanding him to summon the
person so nominated to appear before such judge or justice at such
time or place as he shall therein appoint, not more than three
days from the date thereof, for the purpose ef trying the said
matters in difference. Six of the persons so summoned shall be
drawn in like manner as jurors in justices’ courts and shall be
sworn by such judge or justice well and truly to hear, try and
determine the matters in difference between the parties. After
hearing the allegations and proofs of the parties, the said jury
shall be kept together till they agree on their verdict by the sheriff
or one of his deputies or a constable or by some proper person
appointed by the judge or justice for that purpose who shall be
sworn to keep such jury as is usual in like cases of courts of
record. If such jury cannot agree after being kept together
for such time as such judge or justice shall deem reasonable, he
1060 Rerorr or Jornr Leaisuative CoMMITres

may discharge them and nominate a new jury and issue a new
precept in manner aforesaid.

[Code, § 2247, without change. ]

§ 469, Adjournment. At the time when issue is joined the judge
or justice may in his discretion at the request of either party and
upon proof to his satisfaction by affidavit or orally that an adjourn-
ment is necessary to enable the applicant to procure his necessary
witnesses, or by consent of all the parties who appear, adjourn the
trial of the issue, but not more than ten days, except by consent
of all parties.

[Code, § 2248, without change. ]

§ 470. Final order upon trial. If sufficient cause is not shown
upon the return of the precept, or if the verdict of the jury, or
the decision of the judge or justice upon a trial without a jury, is
in favor of the petitioner, the judge or justice must make a final
order awarding to the petitioner the delivery of the possession of
the property; except that, where the case is within section four
hundred and fifty-seven [2237] of this act, the final order must
direct the removal of the oceupant. In either case the final
order must award to the petitioner the costs of the special pro-
ceeding. If the verdict or decision is in favor of the person
answering, the judge or justice must make a final order accord-
ingly, and awarding to him the costs of the special proceeding.

| Code, § 2249, without change. ]

§ 471, Amount of costs; how collected. Costs, when allowed, and
the fees of officeys, except where a fee is specially given by law
[in chapter twenty-one of this act], must be at the rate allowed
by law in an action in a justice’s court, and are limited in like
manner; unless the application is founded upon an allegation of
forcible entry or forcible holding out, in which case, the judge or
justice may award to the successful party a fixed sum as costs,
not exceeding fifty dollars, in addition to his disbursements. If
the final order is made by a county judge, or a special county
judge, or by a [mayor or] recorder, an execution to collect the
costs may be issued thereupon as if it was a judgment of a justice
of the peace of the same city or county; and for that purpose the
officer takes the place of a justice of the peace. In every other
Justice Court Act 1061

case an execution may be issued to collect the costs awarded
thereby as if the final order was a judgment rendered in the court
of which ‘the judge or justice is the presiding officer.

[Code, § 2250, without change, except to omit “ mayor or.” ]

§ 472. Warrant to dispossess defendant. Where the final order
is in favor of the petitioner, the judge or justice must thereupon
issue a warrant under his hand directed to the sheriff of the county
or to any constable or marshall of the city in which the prop-
erty, or a portion thereof, is situated, or, if it is not situated
in a city, to any constable of any town in the county, describing
the property, and commanding the officer to remove all persons
therefrom, and also, except where the case is within section
[twenty-two hundred and thirty-seven of this act] four hundred
and fifty-seven, to put the petitioner into the full possession
thereof.

[Code, § 2251, without change. ]

§ 473, Execution of warrant. The officer to whom the warrant
is directed and delivered must execute it according to the com-
mand thereof, between the hours of sunrise and sunset.

[Code, § 2252, without change. ]

§ 474. When warrant cancels lease; exceptions. The issuing of
a warrant for the removal of a tenant from demised premises
cancels the agreement for the use of the premises, if any, under
which the person removed held them, and annuls accordingly the
relation of landlord and tenant, except that it does not prevent a
landlord from recovering by action any sum of money which was
at the time when the precept was issued payable by the terms of
the agreement as rent for the premises, or the reasonable value
of the use and occupation thereof to the time when the warrant
was issued, for any period of time with respect to which the agree-
ment does not make any special provision for payment of rent.

[Code, § 2253, without change. ]

§ 475, Stay. The party against whom a final order is made
requiring the delivery of possession to the petitioner may, at any
time before a warrant is issued, stay the issuing thereof, and also
stay an execution to collect the costs, as follows:
1062 Report oF Joint LeGisuativE CoMMITTER

1. Where the final order establishes that a lessee or tenant
holds over after a default in the payment of rent, or of taxes or
assessments, he may effect a stay by payment of the reht due or
of such taxes or assessments, and interest and penalty, if any
thereon due, and the costs of the special proceeding; or by deliver-
ing to the judge or justice, or the clerk of the court, his undertak-
ing to the petitioner in such sum and with such sureties as the
judge or justice approves to the effect that he will pay the rent,
or such taxes or assessments, and interest and penalty and costs
within ten days, at the expiration of which time a warrant may
issue, unless he produces to the judge or justice satisfactory
evidence of the payment;

2. Where the final order establishes that a lessee or tenant has
taken the benefit of an insolvent act, or has been adjudicated a
bankrupt, he may effect a stay by paying the costs of the special
proceeding and by delivering to the judge or justice, or the clerk
of the court, his undertaking to the petitioner in such a sum and
with such sureties as the judge or justice approves to the effect
that he will pay the rent of the premises as it has become or
thereafter becomes due;

38. Where the final order establishes that the person against
whom it is made continues in possession of real property which
has been sold by virtue of an execution against his property, he
may effect a stay by paying the costs of the special proceeding, and
delivering to the judge or justice, or the clerk of the court, an
affidavit that he claims the possession of the property by virtue
of a right or title acquired after the sale or as guardian or trustee
for another; together with his undertaking to the petitioner in
such a sum and with such sureties as the judge or justice approves
to the effect that he will pay any costs and damages which may
be recovered against him in an action of ejectment to recover the
property brought against him by the petitioner within six months
thereafter; and that he will not commit any waste upon or injury
to the property during his occupation thereof.

[Code, § 2254, without change. ]

§ 476, Undertaking; how disposed of. Where an undertaking is
given in a case specified in subdivision one of the last section the
judge or justice must deliver it to the person against whom the
final order was made upon his producing the evidence of payment
mentioned in that subdivision. If he does not produce such evi-
Justice Court Aor 1063

dence within ten days, the judge or justice must deliver it to the
petitioner. In every other case specified in the last section the:
judge or justice must deliver the undertaking to the petitioner
immediately after his approval thereof.

[Code, § 2255, without change. ]

§ 477. Redemption by lessee. Where the special proceeding is
founded upon an allegation that a lessee holds over after a default
in the payment of rent, and the unexpired term of the lease under
which the premises are held exceeds five years at the time when
the warrant is issued the lessee, his executor, administrator or
assignee, may, at any time within one year after the execution
of the warrant, pay or tender to the petitioner, his heir, executor,
administrator or assignee, or if, within five days before the
expiration of the year, he cannot, with reasonable diligence, be
found within the city or town wherein the property or a portion
thereof is situated, then to the judge or justice who issued the
warrant, or his successor in office, all rent in arrear at the time of
the payment or tender with interest thereupon and the costs and
charges ineurred by the petitioner. Thereupon the person mak-
ing the payment or tender shall be entitled to the possession of
the demised premises under the lease and may hold and enjoy
the same according to the terms of the original demise, except as
otherwise prescribed in the next section but one.

[Code, § 2256, without change. ]

§ 478, Redemption by creditor of lessee. In a case specified in
the last section, a judgment creditor of the lessee whose judgment
was docketed in the county before the precept was issued, or a
mortgagee of the lease whose mortgage was duly recorded in the
county before the precept was issued, may, at any time before
the expiration of one year after the execution of the warrant.
unless a redemption has been made as prescribed in the last
section, file with the judge or justice who issued the warrant, or
with his successor in office, a notice specifying his interest and the
sum due to him, describing the premises, and stating that it is his
intention to redeem as prescribed in this section. If a redemption
is not made by the lessee, his executor, administrator or assignee
within a year after the execution of the warrant, the person so
filing a notice, or, if two or more persons have filed such notices
1064 Report or Joint LeGisuaTivE COMMITTEE

the one who holds the first lien, may, at any time before two
o’clock of the day, not a Sunday or a public holiday, next sueceed-
ing the last day of the year, redeem for his own benefit in like
manner as the lessee, his executor, administrator or assignee might
have so redeemed. Where two or more judgment creditors or
mortgagees have filed such notices, the holder of the second lien
may so redeem at any time before two o’clock of the day, not a
Sunday or a public holiday, next succeeding that in which the
holder of the first lien might have redeemed ; and the holder of the
third and each subsequent lien may redeem in like manner at
any time before two o’clock of the day, not a Sunday or a publie
holiday, next succeeding that in which his predecessor might have
redeemed. But a second or subsequent redemption is not valid
unless the person redeeming pays or tenders to each of his prede
cessors who has redeemed the sum paid by him to redeem and also
the sum due upon his judgment or mortgage; or deposit those
sums with the judge or justice for the benefit of his predecessor
or predecessors.

[Code, § 2257, without change. ]

§ 479. Effect of redemption upon lease. Where a redemption
is made, as prescribed in either of the last two sections, the rights
of the person redeeming are subject to a lease, if any, executed
by the petitioner since the warrant was issued, so far that the
new lessee, his assigns, undertenants or other representatives
may, upon complying with the terms of the lease, hold the premises
so leased until twelve o’clock, noon, of the first day of May next
succeeding the redemption. And in all other respects, the person
so redeeming, his assigns and representatives succeed to all the
rights and liabilities of the petitioner under such a lease.

[Code, § 2258, without change. |

_ § 480. Order to be made thereon; liability of persons redeeming.
The person redeeming, as prescribed in the last three sections or
the owner of the pioperty so redeemed, may present to the judge
or justice who issued the warrant, or to his suecessor in office, a
petition duly verified setting forth ae facts of the redemption and
praying for an order establishing the rights and liabilities of the
parties upon the redemption, Ww hensinon the judge or justice
must make an order requiring the other party to the redemption
to show cause before him at a time and place therein specified
Justice Court Act 1065

why the prayer of the petition should not be granted. The order
to show cause must be made returnable not less than two nor
more than ten days after it is granted; and it must be served
at least two days before it is returnable. Upon the return thereof,
the judge or justice must hear the allegations and proofs of the
parties and must make such a final order as justice requires. The
costs and expenses must be paid by the petitioner. The final
order, or a certified copy thereof, may be recorded in like manner
as a deed. A person, other than the lessee, who redeems as pre-
scribed in the last three sections succeeds to all the duties and
liabilities of the lessee accruing after the redemption as if he was
named as lessee in the lease.

[Code, § 2259, without change. ]

§ 481. Appeal. An appeal may be taken from a final order
made as prescribed in this [title] article to the same court, within
the same time, and in the same manner as where an appeal is
taken from a judgment rendered in the court of which the judge
or justice is the presiding officer, and with like effect, except as
otherwise prescribed in the next two sections.

[Code, § 2260, without change. ]

§ 482, Effect of appeal limited in certain cases. The issuing or
execution of the warrant can not be stayed by such an appeal, or
by the giving of an undertaking thereupon, otherwise than as
prescribed in the next section. An appeal can not be taken to the
court of appeals from a final determination of the appellate
division of the supreme court upon such an appeal, unless the
latter court by an order made at the term of the appellate division
where the final order is made, or the next term thereafter, allows
it to be taken.

[Code, § 2261, without change. ]

§ 483. Warrants; how stayed on appeal. Where an appeal is
taken from a final order awarding delivery of possession to the
petitioner which establishes that a lessee or tenant holds over after
a default in payment of rent or from an order or judgment affirm-
ing such final order, the issuing and execution of the warrant
may be stayed by the order of the county judge, and in the city
and county of New York by a justice of the supreme court, upon
1066 Rervort or Joinr Lecisuative ComMirren

‘the appellant’s giving the security required to perfect the appeal,
and to stay the execution of the order appealed from and also an
undertaking to the petitioner in a sum and with sureties approved
by the county judge, or in the city and county of New York by a
justice of the supreme court, to the effect that if, upon the appeal,
a final determination is rendered against the appellant, he will pay
-all rents accruing or to acerue upon the premises or, if there is
no lease thereof, the value of the use and occupation of the
premises subsequent to the institution of the special proceedings.

[Code, § 2262, without change. ]

§ 484, Appellate court may award restitution; action for damages.
If the final order is reversed upon the appeal, the appellate court
may award restitution to the party injured with costs; and it may
make any order, or issue any other mandate, necessary to carry its
‘determination into effect. The person dispossessed may also main-
‘tain an action to recover the damages which he has sustained by
the dispossession.

[ Code, § 2263, without change. ]

§ 485. Application of article; effect of final order. This [title]
article does not impair the rights of a landlord, lessor or tenant
in a case not therein provided for. Where a special statutory pro-
vision confers a right to take proceedings, in the manner hereto-
fore prescribed by law, for the summary removal of a person in
possession of real property, the proceedings thereunder must be
taken as prescribed in this [title] article. A final order, made in
a special proceeding taken as prescribed in this article [title].
is not a bar to an action of ejectment to recover the property
affected thereby.

[ Code, § 2264, without change. ]

§ 486. How proceedings under this article may be stayed. Where
a petition is presented, as prescribed in this [title] article the
proceedings thereupon before the final order, and if the final order
awards delivery of the possession to the petitioner, the issuing or
execution of the warrant thereupon, cannot be stayed or suspended
by any court or judge, except in one of the following methods:

1. By an order made, or an undertaking filed, upon an appeal
‘in a case and in the manner specially prescribed for that purpose
in this [title] article ;
Justice Court Act 1067

2. By an injunction order granted in an action against the
petitioner. Such an injunction shall not be granted before the
final order in the special proceeding, except in a case where an
injunction would be granted to stay the proceedings in an action
of ejectment brought by the petitioner, and upon the like terms;
or after the final order, except in a case where an injunction
would be granted to stay the execution of the final judgment in
such an action, and upon the like terms.

[Code, § 2265, without change. ]

ARTICLE 18
BONDS AND UNDERTAKINGS

Section 495. Bond and undertaking; sureties and acknowledg-

ments.

496. Filing bond and undertaking.

497. Certain bonds and undertakings; when sufficient.

498. Amending defects.

499. Form of bond and undertaking; affidavit of sure-
ties; approval.

500. Party need not join with sureties; when one surety
sufficient.

501. Deposit after giving bond.

502. Additional security.

503. Bond to people or public officer, for benefit of a
suitor.

504, Change of parties.

§ 495. Bond and undertaking; sureties and acknowledgments.
A bond or undertaking given in an action or special proceeding
as prescribed in this act must be executed by at least one surety,
and be acknowledged or proved, and certified in like manner as
a deed to be recorded.

[Code, § 810, without change except to require execution by
at least one surety; made applicable to justice court practice by
Code, § 3347, subd. 6.]

§ 496, Filing bond and undertaking. A bond or undertaking
required to be given by this act must be filed with the [clerk of
1068 Report oF Joint LEGISLATIVE CoMMITTER

the court;] justice, except where, in a special case, a different
disposition thereof is directed by the court or prescribed in this
act.

[Code, § 816; made applicable to justice court practice by
Code, § 3347, subd. 6.]

§ 497, Certain bonds and undertakings; when sufficient. A bond
or undertaking required by statute to be given by a person to
entitle him to a right or privilege or to take a proceeding is suf-
ficient if it conforms substantially to the form therefor prescribed
by the statute and does not vary therefrom to the prejudice of
the rights of the party to whom or for whose benefit it is given.

[Code, § 729, without change; made applicable to justice court
practice by Code, § 3347, subd. 6.]

§ 498. Amending defects. Where such a bond or undertaking
is defective the court, officer or body that would be authorized to
receive it or to entertain a proceeding in consequence thereof if
it was perfect may, on the application of the persons who executed
it, amend it accordingly; and it shall thereupon be valid from the
time of its execution.

[Code, § 730, without change; made applicable to justice court
practice by Code, § 3347, subd. 6.]

§ 499, Form of bond and undertaking; affidavit of sureties;
approval. A bond or undertaking executed by a surety or sureties
as prescribed in this act must where two or more persons execute
it be joint and several in form; and, except when executed by a
fidelity or surety company or when otherwise expressly prescribed
by law, it must be accompanied with the affidavit of each surety
sub-joined thereto to the effect that he is a resident of and a house-
holder or a freeholder within the state and is worth the penalty
of the bond or twice the sum specified in the undertaking over all
the debts and liabilities which he owes or has incurred and
exclusive of property exempt by law from levy and sale under
an execution. [[A bond or undertaking given by a party without
a surety must be accompanied by his affidavit to the same effect.J
The bond or undertaking, except as otherwise expressly prescribed
by law, must be approved by the court before which the proceed-
ing is taken, or a judge thereof, or the judge or justice before
Justice Court Act 1069

whom the proceeding is taken. The approval must be indorsed
upon the bond or undertaking.

[Code, § 812, first part without change, except the omission of
the provision relating to a bond or undertaking without surety;

the section made applicable to justice court practice by Code,
§ 3347, subd. 6.]

§ 500. Party need not join with sureties; when one surety suffi-
cient. Where a provision of this act requires a bond or undertaking
with sureties to be given by, or in behalf of, a party or other per-
son, he need not join with the sureties in the execution thereof
unless the provision requires him to execute the same; and the
execution thereof by one surety is sufficient, although the word
“sureties ” is used, unless the provision expressly requires two or
more sureties; and the execution of any such bond or undertaking
by any fidelity or surety company authorized by the laws of this
state to transact business shall be equivalent to the execution of
said bond or undertaking by two sureties, and such company, if
excepted to, shall justify through its officers or attorney in the
manner required by law of fidelity and surety companies. Any
such company may execute any such bond or undertaking as
surety by the hand of its officers, or attorney, duly authorized
thereto by resolution of its board of directors, a certified copy of
which resolution under the seal of said company shall be filed
with each bond or undertaking.

[Code, § 811, without change; made‘applicable to justice court
practice by Code, § 3347, subd. 6. ]

§ 501. Deposit after giving bond. [But where the penalty of the
bond, or twice the sum specified in the undertaking is five
thousand dollars or upwards, the court or judge may, in its or
his discretion, allow the sum in which a surety is required to
justify to be made up by the justification of two or more sureties
each in a smaller sum. But in that case a surety cannot justify,
in a sum less than five thousand dollars, and when two or more
sureties are required by law to justify, the same person cannot
so contribute to make up the sum for more than one of them.] It
shall be lawful for any party of whom a bond or undertaking
is required to agree with his sureties for the deposit of any or all
moneys for which such sureties are or may be held responsible
1070 Revort or Joint LeGistativeE ComMirrer

with a trust company authorized by law to receive deposits, if
such deposit is otherwise proper, and for the safe-keeping of any
or all other depositable assets for which such sureties may be held
responsible with a safe-deposit company authorized by law to do
business as such in such a manner as to prevent the withdrawal
of such moneys and assets, or any part thereof, except with the
written consent of such sureties, or an order of the court or the
justice made on such notice to them, as it may direct.

[Code, § 818, last part, the first part being inapplicable to
justice court practice; the section made applicable to justice court
practice by Code, § 3347, subd. 6.]

§ 502, Additional security. Where an undertaking has been or
shall be givén in any action or proceeding the [court] justice may
in [its] his discretion, if justice so requires, order further or
other security to be given in addition to such security. Upon
cause shown the [court] justice may permit an examination or
re-examination of any surety upon any such undertaking. Upon
such examination or re-examination, if justice so requires, the
[court] justice may require a new surety or sureties to be fur-
nished or further or other security to be given in addition to the
security already given. The [court] justice may enforce such
order by any disposition of the action or proceeding that may be
proper.

[Code, § 818a, added by L. 1918, ch. 85. Although: not
expressly made applicable to justice court practice by Code,
§ 3347, subd. 6, it should be made applicable if §§ 813 and 814
are applicable. ]

§ 503, Bond to people or public officer, for benefit of a suitor.
Where a bond or undertaking has been given as prescribed by
law in the course of an action or a special proceeding to the people
or to a public officer for the benefit of a party or other person
interested and provision is not specially made by law for the
prosecution thereof, the party or other person so interested may
maintain an action in his own name for a breach of the condition
of the bond, or of the terms of the undertaking, upon procuring
an order granting him leave so to do. The order may be made
by the [court in which the action is or was pending; the city
court of the citv of New York, or a] county court zf the bond or
Justicn Courr Act 1071

undertaking was given in an action or proceeding im justice’s
court, or if the bond or undertaking was given in a special pro-
ceeding pending before a judge of that court, or in any other case,
by the supreme court. Notice of the application therefor must
be given as directed by the court or judge to the persons interested
in the disposition of the proceeds.

[Code, § 814, modified by requiring leave to sue on a bond in
justice’s court to be granted by county court; section made appli-
cable to justice court practice by Code, § 3347, subd. 6.]

§ 504, Change of parties. A bond or undertaking, given in an
action or special proceeding as prescribed in this act, continues
in force after the substitution of a new party in place of an
original party, or any other change of parties; and has there
after the same force and effect as if then given anew in conformity
to the change of parties.

[Code, § 815, without change; made applicable to justice court
practice by Code, § 3347, subd. 6.]

ARTICLE 19
APPEALS

Section 510. Justice’s judgment reviewed by appeal.
511. Who may appeal; to what court appeal to be taken.
512. Appeal; when and how taken. * :
513. Extending. time to appeal.
514. Service of notice upon justice; payment of costs
and fees.

515. Service other than personal.
516. Service of notice upon respondent.
517. Amendment; when allowed.
518. Undertaking to stay execution upon judgment.
519. Justification of sureties.
520. Proceedings; how stayed.
521. When justice is dead.
522. Return.
523. Return; when justice has gone out uf office,
524. Further return; how compelled.
1072 Report or Joint LEGISLATIVE COMMITTEE

Section 525. Return; when justice is dead.
526. Appeal for a new trial.
527. Undertaking to be given.
528. Offer to compromise before return.
529. Offer to compromise after return.
530. Date of issue and proceedings in appellate court.
531. Amount of costs on new trial.
532. Motion to amend return.
533. Respondent may stipulate to reverse judgment.
534, Hearing of appeal; dismissal.
535. Proceedings and judgment on appeal.
536. Costs where new trial is not had.
537. When new trial in justice’s court may be directed.
538. Proceedings before justice.
539. Proceedings when error in fact is alleged.
540. Setting off costs and recovery.
541. Certain sums may be included in disbursements.
542. Restitution upon reversal.
543. Judgment-roll.

§ 510, Justice’s judgment reviewed by appeal. The only mode
of reviewing a judgment rendered by a justice of the peace in
a civil action is by an appeal, as prescribed in this act [title].

[Code, § 3044, without change. |

§ 511. Who may appeal; to what court appeal to be taken. An
appeal may be taken by any party aggrieved by the judgment and
[. Except where the judgment is rendered by a justice of the
peace of the city of Buffalo, the appeal] must be taken to the
county court of the county where the judgment was rendered.

[Code, § 3045, without change. |

§ 512. Appeal; when and how taken. An appeal must be taken
within twenty days after the entry of the judgment in the justice’s
docket, except that where a defendant appeals from a judgment
rendered in an action wherein he did not appear and the sum-
mons was not personally served upon him, the appeal may be
taken within twenty days after personal service upon him on the
part of the plaintiff of written notice of the entry of the judg-
ment; but not after the expiration of five years from the entry
Justice Court Act 1078

of the judgment. An appeal is taken by serving upon the justice
by whom the judgment was rendered and upon the respondent
a written notice of appeal, subseribed either by the appellant or
by his attorney in the appellate court.

[Code, § 3046, without change. ]

§ 513. Extending time to appeal. Where a party entitled to
appeal from a judgment dies before the expiration of the time
within which the appeal may be taken, the court to which an
appeal is authorized to be taken, or a judge thereof, may allow
the appeal to be taken by the heir, devisee or personal repre-
sentative of the decedent at any time within four months after
his death. A copy of an order under this section extending the
time to appeal must be served with the notice of appeal.

[Code, § 785, rewritten, omitting provision not applicable to
justices’ courts. The last sentence is new. |

§ 514, Service of notice upon justice; payment of costs and fees.
Service of the notice of appeal upon the justice must be made by
delivering it to him personally, or to his clerk appointed pursuant
to law, or by mailing such notice to the justice at his office in the
manner prescribed [by] in the following section for service of
notice by mail [in section 797 of this act]; but if the justice is
dead, or if neither he nor his clerk can, after reasonable diligence,
be found within the county, service of the notice upon the justice
may be made by delivering it to the clerk of the appellate court.
Unless the justice is dead, the appellant must, at the time of serv-
ing the notice, pay to the person to whom it is delivered the costs
of the action, included in the judgment, and the sum of two dollars
as the fee of the justice for making the return.

[Code, § 3047, without change. ]

§ 515. Service other than personal. Where the service of the
notice of appeal upon the justice is by matl it may be made [is
not personal, it may be made as follows:

1. Upon a party or an attorney,] through the post-office, by
depositing the paper, properly inclosed in a post-paid wrapper, in
the post-office or in any post-office box regularly maintained by the
government of the United States and under the care of the post-
office of the party, or the attorney serving it, directed to the person
1074. Report or Joint Lecisiarive ComMitrer

to be served at the address, within the state, designated by him
for that purpose, upon the preceding papers in the action; or,
where he has not made such a designation, at his place of residence,
or the place where he keeps an office, according to the best informa-
tion which can conveniently be obtained concerning the same.

[Code, § 797, first part without change; made applicable to
service of notice on justice of peace by Code, §§ 3047, 3048.]

§ 516, Service of notice upon respondent. Service of the notice
of appeal upon the respondent may be made by delivering it, in
any part of the state, to the respondent personally, or in one of the
following methods:

1. By leaving it at his residence with a person of suitable age
and discretion or by serving the notice upon the respondent by
mail, or in case an attorney appeared for respondent at the trial,
the notice may be served upon the attorney, either personally or
in the manner prescribed for service of notice by mail in [section
797 of this act.] the preceding section.

2. If service cannot be made with due diligence upon the
respondent in the manner prescribed in the foregoing subdivision,
the notice of appeal may be served upon him by delivering it to
the clerk of the appellate court.

[Code, § 8048, without change. ]

§ 517, Amendment; when allowed. Where the appellant sea-
sonably and in good faith serves the notice of appeal upon either
the justice or the respondent, but omits, through mistake, inad-
vertence or excusable neglect, to serve it upon the other or to do
any other act necessary to perfect the appeal, the appellate court.
upon proof by affidavit of the facts, may, in its discretion, permit
the omission to be supplied, or an amendment to be made, upon
such terms as justice requires.

[ Code, § 3049, without change. ]

§ 518. Undertaking to stay execution upon judgment. If the
appellant desires a stay of execution, he must give a written under-
taking, executed by one or more sureties, approved by the justice
who rendered the judgment, or by a judge of the appellate court,
Justice Court Act 1075

to the effect that, if the appeal is dismissed or if judgment is
rendered against the appellant in the appellate court and an exe-
cution issued thereupon is returned wholly or partly unsatisfied,
the sureties will pay the amount of the judgment, or the portion
thereof remaining unsatisfied, not exceeding a sum specified in
the undertaking, which must be at least one hundred dollars, and
not less than twice the amount of the judgment; or, if the judg-
ment in the justice’s court is for the recovery of a chattel, that the
sureties will pay the sum fixed by that judgment as the value of
the chattel, together with the damages, if any, awarded for the
taking, withholding or detention thereof. A copy of the under-
taking, with a notice of the delivery thereof, must be served with
the notice of appeal and in like manner. [[Section thirteen hun-
dred and thirty-five of this act applies to such an undertaking.J]

[Code, § 3050, without change, except the omission of reference
to § 1335, which is proposed as the following section of this
article. ]

§ 519. Justification of sureties. [It is not necessary that the
undertaking should be approved; but] The attorney for the
respondent may, within ten days after the service of a copy of the
undertaking with notice of the filing thereof, serve upon the attor-
ney for the appellant a written notice that he excepts to the suffi-
ciency of the sureties. Within ten days thereafter the sureties,
or other sureties in a new undertaking to the same effect, must
justify before the justice [court below, or a judge thereof, or a
referee appointed by the same, or a county judge. At least five
days’ notice of the justification must be given. [A referee may
be appointed upon the motion of either party, or upon the court’s
own motion to take the justification of such sureties and to report
the evidence upon the same to the court or judge with his opinion.
The court may further direct that either party shall pay the
expenses of such reference.]_ If the [court or] judge or justice
finds the sureties sufficient he must indorse his allowance of them
upon the undertaking, or a copy thereof, and a notice of the
allowance must be served upon the attorney for the exceptant.
The effect of a failure so to justify and procure an allowance is
the same as if the undertaking had not been given. The [court]
judge or justice shall also have power, in case it shall be made to
appear to [its] his satisfaction upon motion that the exception was
1076 Report or Joint Lecistarive ComMirrer

taken unnecessarily or for purposes of vexation or delay, to set the
same aside and approve the undertaking.

[Code, § 1335, so far applicable to justice court practice; made
applicable by Code, § 3050.]

§ 520. Proceedings; how stayed. The delivery of the under-
taking to the justice or to his clerk appointed pursuant to law
and service of a copy thereof and of notice of the delivery thereof
stay the issuing of an execution upon the judgment. If an exe
cution has been issued, the service of a copy of the undertaking,
certified by the justice or the clerk, or accompanied with an affi-
davit showing that it is a copy and that the original has been duly
filed, upon the officer holding the execution, stays further proceed-
ings thereunder.

[Code, § 3051, without change. ]

§ 521, When justice is dead. Where the justice is dead, or
cannot, with due diligence, be found within the county, and he has
no clerk appointed pursuant to law, or the clerk cannot, with due
diligence, be found within the county, the undertaking may be
filed with the clerk of the appellate court. In that case notice of
the filing must be given to the respondent as prescribed in section
[3048] five hundred and sixteen of this act for service of a
notice of appeal upon him. The filing of the undertaking has the
same effect as the delivery thereof to the justice; and a copy
thereof certified by the county clerk, served upon the officer hold-
ing an execution, has the same effect as if it was certified as pre
scribed in the last section.

[Code, § 3052, without change. ]

§ 522, Return. The justice must, after ten and within thirty
days from the service of the notice of appeal and the payment of
the costs and fee as prescribed in section [3047] five hundred
and fourteen of this act, make a return to the appellate court,
annex thereto the notice of appeal and the undertaking, if any has
been delivered to him or to his clerk, and file the same with the
clerk of the appellate court. The return must contain all the
proceedings, including the evidence and the judgment, unless the
appellant has, in his notice of appeal, demanded a new trial in a
case where he is entitled thereto as prescribed in this article [third
Justice Cotrt Act 1077

of this title]. In the latter case, the justice must return the
summons, together with each warrant of attachment, order of
arrest, or requisition to replevy, or execution granted by him
in the action, with the proof of the service thereof; the plead-
ings, or copies thereof; the proceedings upon the trial; and the
judgment; with a brief statement of the amount and nature of
the claims litigated by the parties. But he need not return the
evidence or any part thereof unless he is required so to do by the
special order of the appellate court.

[Code, § 3053, without change. ]

§ 523, Return; when justice has gone out of office. Where the
justice has gone out of office, he must, nevertheless, make a return

in the same manner and his return has the same effect as if he
remained in office.

[Code, § 38054, without change. ]

§ 524, Further return; how compelled. If the return is de-
fective, the appellate court may direct the justice to make a
further or amended return as often as is necessary. The appellate
court may compel the justice, by attachment, to make and file a
return or a further or amended return. The court is always open
for those purposes. Where the justice has removed to another
county of the state, the appellate court may compel him to make
the return as if he was still within the county where the judgment
was rendered.

[Code, § 3055, without change. ]

§ 525, Return when justice is dead. If the justice dies, becomes
a lunatic, absconds, removes from the state, or otherwise becomes
unable to make the return, the appellate court may receive affi-
davits, or examine witnesses, as to the evidence and other pro-
ceedings taken, and the judgment rendered, before the justice; and
may determine the appeal as if a return had been duly made by
the justice.

[Code, § 3056, without change. ]

§ 526, Appeal for a new trial. Where an issue of fact or an
issue of law was joined before the justice and the sum for which
1078 Report or Joint Legisinative CoMMITTEER

judgment was demanded by either party in his pleadings, exceeds
fifty dollars, or, where in an action to recover a chattel, the value
of the property as fixed, together with the damages recovered, if
any, exceeds fifty dollars, the appellant may, in his notice of
appeal, [except when the appeal is to the county court of Kings
county,] demand a new trial in the appellate court; and there
upon he is entitled thereto whether the defendant was or was not
present at the trial. [[An appeal from a judgment. of a justice’s
court or by a justice of the peace in the city of Brooklyn, or any
of the towns in the county of Kings must be taken and disposed
of in the manner prescribed in articles first and second of this
chapter and title, and not otherwise.}

[Code, § 3068, without change, except the omission of refer-
ences to Kings county and Brooklyn. These provisions are obso-
lete and superseded by Municipal Court Code (L. 1915, ch. 279) ].

§ 527, Undertaking to be given. To render such an appeal
effectual, the appellant must, at the time of the service of the
notice of appeal upon the justice, give the undertaking required
by this [title] article to stay the execution of the judgment.

[Code, § 3069, without change. ]

§ 528. Offer to compromise before return. Upon an appeal, pro-
vided for in this article, from a judgment for a sum of money
only, either party may, within fifteen days after service of the
notice of appeal, serve upon the adverse party, or upon his attor-
ney, a written offer to allow judgment to be rendered in the appel-
late court in favor of either party for a specified sum. If the
offer is not accepted it cannot be proved upon the trial. If the
party, within ten days after service of the offer upon him, serves
upon the party making the same or upon his attorney written
notice that he accepts the offer, he must file it with an affidavit of
service of the notice of acceptance with the clerk of the appellate
court who thereupon must enter judgment accordingly. Where
an offer is made as above provided, the party refusing to accept
the same shall be lable for costs of the appeal, unless the recovery
shall be more favorable to him than the sum offered. If neither
party makes an offer, as provided herein, the party in whose favor
the verdict, report or decision in the appellate court is given shall
be entitled to recover his costs upon the appeal. Costs when
Justice Court Act 1079

awarded according to the provisions of this section shall be in
amounts provided in section [3073] five hundred and thirty-one
[of this article].

[Code, § 3070, without change. ]

§ 529, Offer to compromise after return. Either party may, at
any time after the action is deemed at issue in the appellate court
and before the trial, serve upon the adverse party a written offer
to allow judgment to be taken against him for a sum, or property.
or to the effect, therein specified, with or without costs. If there
are two or more defendants and the action can be severed, a like
offer may be made by one or more defendants against whom a
separate judgment may be taken; and, if it is accepted, the action
becomes severed, and may proceed against the other defendants
as if it had been originally commenced against them only. If
the party receiving the offer, within ten days thereafter, serves
upon the adverse party notice that he accepts it, he may file it,
with proof of acceptance; and thereupon the clerk must enter
judgment accordingly. If the offer is not thus accepted, it cannot
be proved upon the trial; and if the party to whom it was made
fails to obtain a more favorable judgment, he cannot recover costs
from the time of the offer, but must pay costs from that time.

[Code, § 3072, without change. ]

§ 530. Date of issue and proceedings in appellate court. Upon
an appeal, provided for in this article, after the expiration of ten
days from the time of filing the justice’s return, the action is
deemed an action at issue in the appellate court; and all the
proceedings therein, including the entry, enforcement and review
of the judgment, are the same as if the action had been commenced
in the appellate court, except as otherwise specially prescribed in
this [chapter] act.

[Code, § 3071, without change. ]

§ 531, Amount of costs or new trial. Upon an appeal where
the appellant is entitled to a new trial in the appellate court [pro-
vided for in this article,J costs, when awarded, must be as follows.
besides disbursements:

For all proceedings before notice of trial fifteen dollars.

For all subsequent proceedings before trial ten dollars.
1080 Report or Jornt Learstatrve Commirrer

For the trial of an issue of law fifteen dollars.

For the trial of an issue of fact twenty dollars.

For the argument of a motion for a new trial on a case fifteen
dollars.

For each term, not more than five, at which the appeal is regu-
larly on the calendar, excluding the term at which it is tried or
otherwise finally disposed of, ten dollars.

[Code, § 3078, without change. ]

§ 532. Motion to amend return. On appeal from a justice’s
judgment, where a county court has not jurisdiction by reason of
relationship, a notice of motion for an order to compel the justice
to amend his return may be given in twenty days after the date
of the certificate of the county judge, and not after that time.

[General Practice Rules, 46.]

§ 533. Respondent may stipulate to reverse judgment. If the
case is one where the appellant is not entitled to, or has not
demanded, a new trial in the appellate court, as prescribed in
section [three thousand and sixty-eight] five hundred and twenty-
six of this act, the respondent may, within twenty days of tue
service on him of the notice of appeal serve upon
the appellant or his attorney a written stipulation
that the judgment appealed from may be reversed
with five dollars costs and disbursements of the appeal, and
thereafter no further steps shall be taken in such appeal, except
to enter judgment in pursuance of such stipulation for the enforce
ment thereof.

[Code, § 3062, first part, without change. ]

§ 534, Hearing of appeal; dismissal. In case such stipulation
shall not be so served, the appeal may be brought to a hearing
in the appellate court at any term thereof at which such an appeal

can be heard held after the return is filed upon a notice by either
party of not less than eight days. It must be placed upon the
calendar; and must continue thercupon without further notice
until it - finally disposed of. If after being regularly placed
upon the calendar, neither party brings it to a hearing before
the end of the second term thereafter at which it might be noticed
Justice Court Aor 1081

for hearing and heard, the court must dismiss the appeal, unless
it directs the same to be continued for cause shown.

[Code, § 3062, last part, without change. ]

§ 535. Proceedings and judgment on appeal. In a case where
the appellant is not entitled to, or has not demanded, a new trial
in the appellate court [specified in the last section], the appeal
must be heard upon the original papers or a certified copy thereof,
and a copy or copies thereof need not be furnished for the use of
the court. The appellate court must render judgment according
to the justice of the case without regard to technical errors or
defects which do not affect the merits. It may affirm, modify
or reverse the judgraent of the justice in whole or in part and as to
any or all of the parties and for errors of law or of fact, and where
the judgment is contrary to or against the weight of the evidence
the appellate court may, upon its reversal of a judgment, order
a new trial before the same justice or before another justice of
the same county to be designated in the order, and at a time and
place to be specified in the order, and in such a case the costs of
the appeal shall be in the discretion of the appellate court.

[Code, § 3063, without change. ]

§ 536. Costs where new trial is not had. On an appeal where
a new trial cannot be had in the appellate court, the award and
amount of costs are regulated as follows:

1. If the appeal is dismissed because neither party brings it
to a hearing, costs shall not be awarded to either party.

2. If the judgment is reversed for an error of fact not affecting
the merits; or if a new trial is directed before the same or another
justice, the costs of the appeal, not exceeding the amount hereby
allowed in other cases, are in the discretion of the appellate
court.

3. If the judgment is affirmed, the respondent is entitled to
twenty-five dollars costs.

4. If the judgment is reversed and a new trial is not directed
in justice’s court, the appellant is entitled to thirty dollars costs.

5. On an affirmance-only in part, or any other modification
of the judgment, an amount to be fixed by the court not exceeding
ten dollars, may be awarded to either party.

6. If a new trial is directed in justice’s court, the appellate

court may direct that the costs and disbursements of the appeal,
ol
1082 Report or Jomnt LeaisiatrtvE ComMIrrer

to be stated in the order, abide the event of such new trial: or
may make such other order in relation to costs as it deems proper,
but the costs so fixed cannot exceed thirty dollars. The disburse
ments allowed under this subdivision shall be taxed by the judge
by whom the order is made, or if the appeal is to a court com-
posed of more than one judge, then by any judge of such court.

[Code, §§ 3066-67, combined and rewritten, but without
intended change of substance, except to provide for cases in which
a new trial is directed in justice’s court. ]

§ 537. When new trial in justice’s court may be directed. On
the determination of an appeal where the appellant is not entitled
to a new trial in the appellate court, the court may in its discre-
tion reverse or set aside the judgment appealed from, or stay
proceedings thereunder, and by order direct a new trial before
the same or another justice of the same county, designated in the
order, at a time and place specified therein, and on such terms
.as it deems proper.

[Code, § 3064, rewritten and modified by extending the pro-
visions of the original section and authorizing a new trial in
justice’s court in any case where an appeal is not for a new trial
in the appellate court. ]

§ 538, Proceedings before justice. Where the appellate court
directs a new trial before a justice as prescribed in this article,
the parties must appear before him at the time and place speci-
fied in the order of the appellate court, without service of any
notice or of a copy of the order. Thereupon the like proceed-
ings must be had in the action, as on the return of a summons
personally served, except that if issue was joined in justice’s
court, the action must proceed on existing pleadings, subject to
amendment as provided by this chapter.

[Code, § 3065, rewritten, adding a_ provision relating to
pleadings on the new trial in justice’s court where issue has been
joined. This is in conformity to the plan of this act to permit
new trials in justice’s court after appeals on questions of law
only. ]

§ 539. Proceedings when error in fact is alleged. Where an
appeal is founded upon an error in fact in the proceedings, not
Justices Court Aor 1083

affecting the merits of the action, and not within the knowledge
of the justice, the court may determine the matter upon affidavits;
or, in its discretion, upon the examination of witnesses; or in

both methods.
[Code, § 3057, without change. ]

§ 540. Setting off costs and recovery. If, upon the appeal, a
sum of money is awarded to one party and costs are awarded

to the adverse party, the appellate court must set off the one
against the other and render judgment for the balance.

[Code, § 3059, without change. ]

§ 541. Certain sums may be included in disbursements. Where
costs are awarded to the appellant, he may include, in the disburse-
ments upon the appeal, the costs and fee paid to the justice upon
taking the appeal; and, where the judgment rendered by the
justice was against the appellant, he may also include, in those
disbursements, the costs of the action, before the justice, which
he would have been entitled to recover, if the judgment of the
justice had been in his favor.

[Code, § 3060, without change. ]

§ 542. Restitution upon reversal. Where the judgment of the
justice is reversed or modified, the appellate court may make or
compel restitution of property or of a right, lost by means of the
erroneous judgment; but not so as to affect the title of a purchaser,
in good faith and for value, of property sold by virtue of a warrant
of attachment in the action, or an execution issued upon the
judgment. In that case, the appellate court may compel the value,
or the purchase-price to be restored, or deposited to abide the
event of the action, as justice requires. Six days’ notice of an
application for an order for restitution must be given; and, if
the application is granted before judgment, the proper direction
may be included therein.

[ Code, § 3058, without change. ]

§ 543, Judgment-roll. The clerk, immediately after entering
final judgment upon the determination of an appeal, must attach
together and file such of the following papers as were used upon
ihe appeal; which constitute the judgment-roll:
1084 Revort or Joint Lecisuative ComMMirrer

1. The return of the justice, or a certified copy thereof; the
notice of appeal; and the undertaking, if any has been given.

2. The verdict, report, or decision, and each offer, if any, made
as prescribed in this article [third of this title].

3. A certified copy of judgment, together with each notice of
exceptions, or case, which is then on file.

4, Every other paper then on file, and a certified copy of every
order which in any way involves the merits or necessarily affects
the judgment.

[Code, § 3061, without change. ]

ARTICLE 20
GENERAL PROVISIONS

Section 550, Amendments by justice; disregarding immaterial

errors.

551. Abatement of actions.

552. Time for doing any act, how computed.

558. Definition of mandate.

554. General requisites of mandates.

555. Execution of mandate by private person,

556. Constable to execute mandates in person.

557. Sheriff to act where execution of mandate is
resisted.

558. Docket-book to be kept by justice; entries therein.

559. Entries how made.

560. Index to docket-book.

561. Justice’s docket and transcript evidence before him.

564. Deposit of books and papers with town or city clerk.

565. Certificate in docket-book deposited.

566. Town or city clerk to demand books and papers upon
death of justice.

567. Delivery; how compelled.

568. Entries to be evidence.

569. Transfer of action when justice’s term expires.

570. When justice is a witness.

571. Proceedings upon transfer.

572. Proof of judgment.

573. Papers to be filed.
Justice Court Acr 1085

Section 574. Justice to furnish copies of papers.
575. Reward to constable forbidden.
576. Justice or constable not to buy claim.
577. Penalty,
578. Violation of preceding sections a defense to action.
579. Definition of affidavit.
580. Defect in affidavit.
581. Definition of personal injury.
582. Definition of injury to property.
583. Penalty for not paying over money.
584. Justice, when disqualified.

§ 550, Amendments by justice; disregarding immaterial errors.
The [court] justice may, upon the trial or at any other stage
of the action before or after judgment, in furtherance of justice
and on such terms as [it] he deems just, amend any process,
pleading or other proceeding by adding or striking out the name
of a person as a party, or by correcting a mistake in the name of 4
party, or a mistake in any other respect, or by inserting an allega-
tion material to the case; or, where the amendment does not
change substantially the claim or defense, by conforming the
pleading or other proceedings to the facts proved. And, in every
stage of the action, the [court] justice must disregard an error
or defect in the pleadings or other proceedings which does not
affect the substantial rights of the adverse partv. [When amend-
ing a pleading or permitting the service of an amended or sup-
plemental pleading in a case which is on the general calendar of
issues of fact, the court may direct that the case retain the place
upon such calendar which it occupied before the amendment or
new pleading was allowed, and that the proceedings had upon the
amended or supplemental pleadings shall not affect the place of
the case upon such calendar, or render necessary the service of
a new notice of trial,]

[Code, § 723, without change so far applicable to justice court
practice. Section expressly made applicable by Code, § 3347,
subd. 6. ]

§ 551, Abatement of actions. After a verdict in an action to
recover damages for a personal injury, the action does not abate
by the death of the party, but the subsequent proceedings are
the same as in a case where the cause of action survives. And if
1086 Report or Joinr LeaistativE ComMIrrer

the judgment on such a verdict is reversed on questions of law
only, and a new trial is ordered before the same or another
justice, the action does not abate by the death of the party against
whom the same was rendered.

[Code, § 764, rewritten. The words “ report or decision ” in

the original are omitted as not applicable to justice’s court. The
provision preventing an abatement after reversal if a new trial
is ordered in justice’s court is new, and is intended to conform
to other provisions of this act authorizing such a new trial in all
cases of reversal on question of law only. ]

§ 552, Time for doing any act, how computed. The time within
which an act, in an action or special proceeding, is required by
law to be done must be computed by excluding the first and includ-
ing the last day; except where it is otherwise specially prescribed
by law. If the last day is Sunday or a public holiday it must be
excluded. Where the act is required to be done within two days
and an intervening day is Sunday or a public holiday, it must
also be excluded.

[See General Construction Law, § 20.]

§ 553. Definition of mandate. The word “ mandate” includes a
writ, process or other written direction, issued pursuant to law
out of a court, or made pursuant to law by a court, or a judge,
or a person acting as a judicial officer and commanding a court,
board or other body, or an officer, or other person named or other-
wise designated therein to do, or to refrain from doing, an act
therein specified.

[Code, § 3348, subd. 2, without change. ]

§ 554. General requisites of mandates. A mandate, issued by
a justice of the peace, must be signed by him, and may be with-
out seal. It must be entirely filled up, at the time when it is
delivered to an officer to be executed, so as to have no blank either
in the date thereof or otherwise; except that there may be a
blank in a subpoena for the name of any or all of the witnesses.
A mandate issued and delivered to an officer to be executed,
contrary to this section, is void.

[Code, § 3135, without change. ]
Justices Court Act 1087

§ 555, Execution of mandate by private person. A justice of
the peace who issues any mandate authorized by this [chapter,]
act, except a venire, may, at the request of the party, whenever
he deems it expedient so to do, empower, by a written authority
indorsed upon the mandate, any proper person of full age, not a
party to the action, to serve or otherwise execute it. For that pur-
pose the person so empowered has all the power and authority, and
is subject to all the obligations and liabilities, of a constable; and
his return is evidence in like manner as a constable’s. But a
person so empowered is not entitled to any fee or reward for his
services.

[Code, § 3156, without change. ]

§ 556. Constable to execute mandates in person. A constable
to whom a mandate is directed and delivered as prescribed in this
[chapter] act must execute it in person pursuant to the tenor
thereof. He cannot act by deputy in such a case.

[Code, § 8157, without change. ]

§ 557. Sheriff to act where execution of mandate is resisted. If
a constable to whom a mandate issued by a justice of the peace
is directed and delivered, finds, or has reason to apprehend, that
resistance will be made to the execution thereof, he may deliver
it to the sheriff of the county with a written certificate stating
the facts and requiring the sheriff to execute it. Thereupon the
sheriff must execute the mandate; and he is subject to all the
liabilities attaching to a constable in executing it. Sections four
hundred and four hundred and one of the judiciary law apply to
a mandate delivered to a sheriff as prescribed in this section.

[Code, § 3158, without change. ]

§ 558. Docket-book to be kept by justice; entries therein. A
justice of the peace must keep a docket-book in which he must
enter:

1. The title of every action or special proceeding commenced
before him.

2. The time when the summons, or the mandate for the com-
mencement of the special proceeding, was issued; with a state-

D)
ment of the nature of the mandate, and a memorandum of each
1088 Reeorr or Joiner Leaistarive ComMMIrrer

order of arrest, warrant of attachment or requisition to replevy
granted by him.

3. The time when the parties appeared before him, either
without process, or upon the return of the summons, or of the
mandate for the commencement of the special proceeding.

4. A concise statement of the substance of each oral pleading,
or a memorandum of the filing of each written pleading.

5. Each adjournment; stating upon whose application, and to
what time and place, it was made.

6. The issuing of a venire; stating upon whose application it
was issued, and the time and place of the return thereof.

7. The time when a trial was had; and, if it was by a jury,
the names of all the persons returned as having been notified to
attend as jurors; stating who did not attend; who attended, and
who were sworn.

8. The name of each witness sworn upon the trial; stating at
whose request he was sworn; each objection made to the com-
petency of a witness; and the decision thereupon.

9. The verdict of the jury, and the time of receiving it; or,
if the jury disagreed and were discharged, a statement of that
fact.

10. A concise statement of the substance of each order made
by him in the course of the action or special proceeding.

11. The judgment or final order; and the time of entering it.

12. The execution; the time of issuing it; the kind of execu-
‘tion; the name of the officer to whom it was delivered, and each
renewal with the date thereof. .

18. The return of each execution; the time of the return; and
a statement of any money paid to the justice thereupon, and
when and by whom it was paid.

14. Each transcript of the judgment given by him to be filed
in the county clerk’s office, and the time when it was given.

15. The appeal, if any; and the time of service of the notice
of appeal.

16. Such entries shall be made in a book which must be
furnished to him by the clerk of the town in which he resides
and to be designated as “ justices’ civil docket’ and to be the
property of, and a charge against, such town.

[Code, § 3140, without change. ]

§ 559. Entries, how made. Each of the entries specified in the
last section must be made under the title of the action or special
Justice Court Act 1089

proceeding to which it relates; and, in addition thereto, the justice
may enter in like manner any other proceeding had before him
in the action or special proceeding which he thinks proper to
enter. A docket-book kept by a justice must be kept open, during
the hours when a sheritl’s office is required by law to be kept

open, for search and examination by any person upon his reason-
able request and to a reasonable extent.

[Code, § 8141, without change. ]

~§ 560. Index to docket-book. A justice of the peace must keep
an alphabetical index to all the judgments entered by him in his
docket-book; and he must insert therein the names of all the

parties to each judgment, and the page of the book where the
judgment is entered.

[Code, § 3142, without change. ]

§ 561. Justice’s docket and transcript evidence before him. The
docket-book of a justice of the peace within the state, or a tran-
script thereof certified by him, is evidence before him of any
matter required by law to be entered by him therein.

[Code, § 938, without change. ]

§ 564. Deposit of books and papers with town or city clerk. If
a justice of the peace, either before or after the expiration of his
term of office, removes from the town or city wherein he was
elected, he must forthwith deposit with the clerk of that town
or city his docket-book and all other books and papers in his
custody relating to an action or a special proceeding which has
been heard by him or commenced before him. A justice who
is removed from office, must make a like deposit, within ten days
after receiving notice of his removal, or afterwards upon the
demand of the clerk of the town or city. But the omission of the
justice to make the deposit does not affect the validity of any

book or paper so required to be deposited or of any proceeding
to which it relates.

[Code, § 3144, without change. ]

§ 565. Certificate in docket-book deposited. A justice of the
peace must make, in each docket-book deposited by him as pre

35
1090 Revort or Joint Legistative ComMMIrrer

scribed in the last section, a certificate under hig hand to the
effect that each judgment or order entered therein was duly
rendered or made as therein stated; and that the sum, appearing
by the book to be due thereupon, has not been paid to his knowl-
edge.

[Code, § 3145, without change. ]

§ 566. Town or city clerk to demand books and papers upon
death of justice. Ifa justice of the peace dies, or his office becomes
otherwise vacant, the town or city clerk must demand and receive
all books and papers which belonged to the justice in his official
capacity from any person having them in his possession, and
such clerk may make and issue a transcript of a judgment so
rendered by such a justice of the peace and appearing upon the
docket of such justice of the peace so on file in his office, and
issue an execution upon any such judgment which has not been
docketed in the office of the county clerk, upon receiving his fees
for the same which shall be the same now allowed a justice of the
peace for issuing a transcript or transcripts, as the case may be,
and such transcript or execution so issued by such clerk shall have
the same force and effect as though the same had been issued by
such justice of the peace during his term of office.

[Code, § 3146, without change. ]

§ 567. Delivery; how compelled. If any book or paper, required
to be deposited with the town or city clerk as prescribed by this
[title] article, is withheld, the like proceedings may be had at the
instance of the town or city clerk to compel the deposit thereof
‘as’ are ‘prescribed by law where an officer refuses or neglects to
‘deliver a book or paper in his custody as such officer to his
successor in office.

[Code, § 3147, without change. ]

_ § 568. Entries to be evidence. An entry made as prescribed
by law in the docket-book kept by a justice of the peace, and
deposited with the town or city clerk as prescribed in this [title]
article is presumptive evidence of the matters of fact stated
therein ; but the presumption may be repelled by proof.

- [Code, § 3148, without change. ]
Justice Court Act 1091

§ 569. Transfer of action when justice’s term expires. If the
term of office of a justice of the peace is about to expire, or he is
about to remove from the town or city, before judgment is
rendered in an action, or a final order is made in a special pro-
ceeding pending before him, he must previously make a written
order reciting the fact, and directing the action or special pro-
ceeding to be continued before another justice of the same town
or city named in the order.

[Code, § 3150, without change. ]

§ 570. When justice is a witness. If, before an issue of fact
is joined in an action or special proceeding, the defendant, or,
where he has not been arrested, his attorney, presents to the
justice satisfactory proof by affidavit that the justice before whom
the action or special proceeding is pending is a material witness
for the defendant, without whose testimony he cannot safely
proceed to trial, setting forth therein the particular facts and cir-
cumstances which he expects to prove by him, the justice must
forthwith make a written order directing the action or special
proceeding to be continued before another justice of the same
town or city named in the order.

[Code, § 3151, without change. ]

§ 571. Proceedings upon transfer. Where an order is made as
prescribed in either of the last two sections, the constable must
forthwith take it, and all other papers in the action, with the body
of the defendant, if he is under arrest, before the justice named
in the order. The plaintiff or petitioner must forthwith appear
before that justice who must take cognizance of the action or
special proceeding, and must proceed therein as if it had been
commenced before him. Costs recovered in the action or special
proceeding include the fees allowed by law for services per-
formed by the constable and the justice before the transfer,
together with the fees allowed by law for the proceedings before
the justice to whom the cause is transferred.

[Code, § 3152, without change. |
§ 572, Proof of judgment. In an action brought upon a judg-

ment of a justice of the peace who is dead, or out of office, or
otherwise incapable of acting, or has removed from the county,
1092 Revorr or Joint LeagistativE CoMMITTEER

or cannot be found therein, the original docket-book of the justice
is presumptive evidence of any matter entered therein as pre
scribed by law; but the presumption may be repelled by proof.
If the docket-book is lost or destroyed, or if it cannot be pro-
duced, after reasonable effort to obtain it, the like proof may be
given respecting the recovery of the judgment as upon any other
question of fact.

[Code, § 8155, without change. ]

§ 573. Papers to be filed. A justice of the peace must care
fully file and preserve each affidavit or other paper delivered to
him to be filed in an action or special proceeding.

[Code, § 3143, without change. ]

§ 574, Justice to furnish copies of papers. A justice of the peace
must furnish upon request and payment of his fees, to any person
interested in a judgment or order entered by him a transcript
of the judgment or order, together with a copy of all the entries
in his docket-book relating to the cause; a copy of his minutes of
the evidence in the cause, or the sub: dance of the testimony, if
he has not taken minutes; and a copy of any paper on file in the
cause; or such portions thereof as are required.

_[Code, § 3149, without change. ]

§_ 575. Reward to constable forbidden. .\ constable shall not
ask or receive any money or other valuable thing from any person
as a consideration, reward or inducement for omitting or delay-
ing to arrest a person, or to take him to jail, or to sell property
by virtue of an execution, or to execute any other duty pertain-
ing to his office; or any money or valuable thing other than the
es expressly allowed to him by law for executing any duty
pertaining to his office.

[Code, § 3136, without change. ]

§ 576, Justice or constable not to buy claim. | justice of the
peace or constable shall not, directly or indirectly, buy, or be
interested in buying, a bond, note, or other demand or cause of
action, for the purpove of ne an action, or instituting a
spedial proceeding before a justice i thereupon ; nor shall
Justicr Court Act 1093

a justice or a constable, either before or after an action or a
special proceeding is commenced, lend or advance, or agree to lend
or advance, or procure to be lent or advanced, any money or other
valuable thing to any person in consideration of, or as a reward
for, or an inducement to, the placing, or having placed in his
hands, a debt or other demand or cause of action for prosecution
or collection.

[Code, § 3137, without change. ]

§ 577. Penalty. A justice of the peace or constable who vio-
lates a provision of the last [three] two sections is guilty of a mis-
demeanor; and shall be punished accordingly. A conviction also
operates as a forfeiture of his office.

[Code, § 3138, without change. ]

§ 578, Violation of preceding sections a defense to action. It
is a defense to an action brought before a justice of the peace
that the demand upon which it is founded was bought and sold,
or received for prosecution, contrary to the foregoing provisions
of this article [title]. In an action wherein such a defense is
interposed, if the plaintiff, after being duly subpoenaed as a
witness, fails to attend pursuant to the subpoena; or, if upon the
trial or upon his examination as a witness by virtue-of a com-
mission, he refuses to answer any question pertinent to show a
violation of either of those provisions; the justice, besides pun-
ishing him in a proper case for his failure or refusal, must dis-
miss his complaint. The testimony in such an action of the
plaintiff, or any other witness, is not evidence in a criminal
prosecution against him for violating either of those provisions.

[Code, § 3139, without change. ]

§ 579. Definition of affidavit. The word “ affidavit” includes
a verified pleading in an action, or a verified petition or answer
in a special proceeding.

[Code, § 3348, subd. 11. ]
1094 Report or Joint Lecisnative ComMirrer

' § 580. Defect in affidavit. The want of a title, or defect in the
title, of an affidavit does not impair it, if it intelligibly refers to
the action or special proceeding in which it is made.

[ Code, § 728, without change; made applicable to justice court
practice by Code, § 3347, subd. 6.]

§ 581. Definition of personal injury. A personal injury includes
libel, slander, criminal conversation, seduction, and malicious
prosecution; also an assault, battery, false imprisonment; or other
actionable injury to the person either of the plaintiff, or of another.

[Code, § 3343, subd. 9.]

§ 582. Definition of injury to property. An injury to property
is an actionable act, whereby the estate of another is lessened,
other than a personal injury, or the breach of a contract.

~ [Code, § 3343, subd. 10.]

§ 583. Penalty for not paying over money. A justice of the
peace who neglects or refuses, within a reasonable time after
demand, to pay any money collected by him in his official capacity
to the person entitled thereto is guilty of a misdemeanor, and shall
be punished accordingly. A conviction also operates as a for
feiture of his office.

(Code, § 3153, without change. ]

§ 584, Justice; when disqualified. A justice shall not sit as
such in any cause or matter to which he is a party, or in which
he has been attorney or counsel, or in which he is interested, or
if he is related by consanguinity or affinity to any party to the
controversy within the sixth degree. The degree shall be ascer-
tained by ascending from the justice to the common ancestor and
descending to the party, counting a degree for each person in
both lines, including the justice and the party, and excluding the
common ancestor.

[Judiciary Law, § 15, first part, without change, except to
substitute “justice” for “judge”, and also omitting the clause
“or take any part in the decision of” as not applicable to a
justice’s court. ]
Justice Court Act 1095

ARTICLE 21
LAWS REPEALED; WHEN TO TAKE EFFECT

Section 595. Laws repealed.
596. When to take effect.

§ 595. Laws repealed. The sections of the code of civil pro-
‘cedure specified in the schedule hereto annexed, and all acts
amendatory thereof or supplemental thereto in force when this act
takes effect, are hereby repealed. When two numbers in such
schedule are united by a hyphen both such numbers are included
as well as all intermediate numbers.

§ 596, When to take effect. This act shall take effect April
fifteenth, nineteen hundred and twenty.

SCHEDULE OF LAWS REPEALED.

Code of Civil Procedure, §§ 9231-2265, 2861-3115, 3133-
3158, 3196-3199, 3202-3214, 3218, 3223-3225, 3225a, 3226,
3322-3329.

[§§ 3121-8125 have not been repealed by this act. They relate
{o interpreters in the justices’ courts of Brooklyn, which seem
to have been transferred to the municipal court of that borough
and may be of force in fixing the tenure of office of such officers.
They were not repealed by the municipal court act of New York of
1902, nor by the revision of 1915 (L. 1915, ch. 279), although
other sections of the code were distinctly declared to be inap-
plicable. § 3133 seems to be obsolete and is repealed.

§§ 3196-3202, relate to the mayor's court of Hudson and the
recorders’ courts of Utica and Oswego. The mayor’s court of
Hudson was abolished by L, 1895, ch. 751, and is superseded by
the city court of that city. The recorder’s court of Oswego now
seems to be exclusively a court of criminal] jurisdiction (L. 1895,
ch. 394). The only sections that seem to have any force are §§
3200, 3201, in their application to the recorder’s court of Utiea.
They are not repealed by this act, but sections 3196-3199 and 3202
1096 Report or Jormnt LeGistaATivE CoMMITTEER

are repealed as obsolete. §§ 3200 and 3201 are to be ineluded
in the Utica charter by a separate act and repealed by it.

§§ 3203-3206, relating to the city court of Yonkers are repealed
as superseded by L. 1893, chapter 416, defining the jurisdiction
of that court and the practice therein. §§ 3207-3214, relating
to the district courts of New York and the justices’ courts of
Albany and Troy, are repealed. They are declared inapplicable
to the city court of Albany by L. 1914, ch. 368, § 388. They
are declared inapplicable to the city court of Troy by L. 1915,
ch. 647, § 388. They-are declared inapplicable to the muncipal
court of New York by L. 1915, ch. 279, § 183. § 3218, relating
to orders of arrest in the district courts of New York, is repealed.
This section is declared inapplicable to the municipal court by
L, 1915, ch. 279, § 183, and is therefore obsolete.

§§ 3223-3225a, relating to justices’ courts of Albany and Troy,
are repealed. These sections are declared inapplicable to the city
courts of such cities by L. 1914, ch. 868, § 388 (Albany) and by
L. 1915, ch. 647, § 888 (Troy). § 3225a is not specifically men-
tioned in these acts, but was evidently intended to be included.

§ 3226, relating to the municipal court of Rochester, is repealed,
as it is covered by the Rochester charter, L. 1907, ch. 755, § 529.

§ 3227, relating to appeals in the same court, is not repealed
hy this act, but is to be included in the Rochester charter by a
separate act and repealed thereby. ]
COURT OF CLAIMS ACT

[1097]
COURT OF CLAIMS ACT

AN ACT in relation to the court of claims and the jurisdiction,

practice and procedure therein.

The People of the State of New York, represented in Senate
and Assembly, do enact as follows:

Article 1.

2.
3.

COURT OF CLAIMS ACT
Courts, judges and officers ($§ 1-11).

Jurisdiction and practice provisions (§§ 12-84).
Laws repealed; when to take effect ($§ 35, 36.)

ARTICLE 1

COURTS, JUDGES AND OFFICERS

Section

1
1

Section

San

ro

1. Short title.

2. Organization of court of claims.
3. Appointment of additional judges.
4.
5
6

Prohibitions as to judges.

. Salaries and expenses of judges.
. Designation of judges for determination of appro-

priation.
Appointment and duties of court officers.
Salaries and compensation of court officers.
Seal of court.

. Record of proceedings and report to legislature.

Annual report to comptroller.

1. Short title. This act shall be known as the “ Court

of Claams Act.”

[ New. ]

§ 2. Organization of court of claims. The [board of claims is
hereby abolished and the] court of claims [re-established] +s

[1099]
1100 Report or Joint LEGISLATIVE COMMITTEE

hereby continued. Such court shall consist of three judges, to be
known as judges of the court of claims, who shall be appointed
by the governor, by and with the advice and consent of the
senate. The [judges first appointed shall be appointed for terms
of three, six and nine years, respectively, from the first day of
January of the calendar year in which such appointments shall
be made. Thereafter the full] term of office of each judge shall
be nine years. Whenever the term of office of a judge shall
expire, or his office become vacant from any cause, his successor
shall be appointed for tne unexpired term. Notwithstanding the
provisions of section five of the public officers law, a judge of
the court of claims shall hold over and continue to discharge
the duties of his office, after the expiration of the term for which
he shall have been chosen,. until his successor shall be chosen
and qualified, but after the expiration of such term the office
shall be deemed vacant for the purpose of choosing his successor.
By an order to be filed in the office of the secretary of state, the
governor shall designate one of the judges as presiding judge,
wao shall act as such during his term, and thereafter upon the
appointment of his suecessor, the governor shall designate such
successor or any other judge of the court as presiding judge,
who shall act as such during his term. [The office of com-
missioner of claims is hereby abolished, but the commissioners
now in office shall continue to have the powers and duties of com-
missioners of claims until the appointment and qualification of
judges of the court of claims, except that after this section as
amended takes effect and until the appointment and qualifica-
tion of judges of the court of claims they shall not hear, try
or determine any claim, or entertain a motion or make an order
affecting the substantial rights of a party. During the period
of three months after the first appoimtment and qualification of
judges hereunder, such commissioners shall ‘aave power to deter-
mine and dispose of questions, claims and matters which shall
have been finally submitted to and heard by such board on or
before January twenty-third, nineteen hundred and fifteen, in
the same manner and with the same effect as if such board had
not been abolished. Such commissioners shall for their services
rendered during such period of three months receive compensa-
tion at the rate of five hundred dollars per month.] A judge
of the court of claims, [appointed under the provisions of this
section, as amended,] must be an attorney and counselor-at-law
Court or Criars Act 1101 -

admitted to practice in the courts of this state, of at least ten
years’ experience in practice. [Except as herein otherwise pro-
vided, the judges appointed under this section] the judges of
the court of clatms shall have jurisdiction to hear and determine
all matters now pending in the court of claims [at the time they
shall take office, and all matters pending in the board of claims
at the time when this section, as amended takes effect, shall be
heard and determined by the court of claims. But if any matter
or claim be left undisposed of by the commissioners of claims,
the court of claims shall have jurisdiction thereon.] Whenever
in this act or in any other statute[[, heretofore enacted or enacted
at the legislative session of the year nineteen hundred and fif-
teen,] reference is made to the board of claims or any officer
thereof, the same shall be deemed to refer to and mean the court
of claims or an officer thereof. A determination of the board
of claims, heretofore rendered shall have the same force and
effect and he subjected to the same procedure as provided in this
article for a judgment.

[Code, § 263, except fourth and fifth sentences from the end,
which have been made a separate section. ]

§ 3. Appointment of additional judges. The number of judges
to constitute the court of claims may be increased to not more
than five as provided by this section. [An additional judge of
the court of claims heretofore appointed pursuant to this section
is continued in office until February first, nineteen hundred and
eighteen.] If the presiding judge of such court shall [prior to
February first, nineteen and eighteen, or] at any time [there
after] certify to the governor in writing that the accumulation
of business in the court of claims requires for the disposal thereof
an additional judge or judges, specifying the number, not more.
than two, and the term for which such additional judge or judges
should be appointed, not exceeding three years, the governor may
appoint, by and with the advice and consent of the senate, such
additional judge or judges, for such term[[, eaca of whom shall
be an attorney and counselor-at-law admitted to practice in the
courts of this state of at least ten vears’ experience in practice].
If a vacancy shall occur otherwise than by expiration of term
in the office of any additional judge, his successor shall be ap-
pointed by the governor, by and with the advice and consent of
the senate, for the unexpired term of his predecessor in office.
1102 Reporr or Joint Luaistarive ComMirrer

An additional judge appointed pursuant to this section shall,
during is term of office, receive the same compensation and be
allowed his expenses, payable at the same time and in the same
manner as a judge of the court of claims. Except as herein
provided the provisions of sections [two hundred and sixty-three]
two and four of this act relating to judges of the court of claims
shall apply to any such additional judge.

[Code, § 282, without change of substance. Second sentence
omitted as temporary. |

§ 4. Prohibitions as to judges. A judge shall not during his
term of office practice the profession of law, or act as referee
in any action or proceeding in any court of this state. A judge
shall not hold any other office or public trust to which any salary
or compensation is attached, nor serve as a member of any
political committee. .

[Code, § 263, fourth and fifth sentences from the end.
Remainder of section is covered elsewhere. |

§ 5, Salaries and expenses of judges. Each judge of the court
of claims shall receive an annual compensation of eight thousand
dollars, payable monthly, and all actual and necessary traveling
and other expenses and disbursements incurred or made by them
in the discharge of their official duties elsewhere than in Albany,
payable montaly, by the state treasurer on the audit and warrant
of the comptroller.

[Code, § 279, without change. ]

§ 6. Designation of judges for determination of appropriation cases.
At least two of the judges of the court of claims shall be desig-
nated by the presiding judge thereof to devote their entire time,
or so much thereof as shall be necessary, to the hearing and de-
termination of claims filed against the state arising out of the
appropriation of lands, structures, waters, Fondthices or other
property in connection with the improvement of the Erie, Cham-
plain and Oswego canals as provided by chapter one hundred
and forty-seven of the laws of nineteen hundred and three, and
acts amendatory thereof and supplemental thereto, the Cayuga
and Seneca canals as provided by chapter three iimdeed and
ninety-one of the laws of nineteen hundred and nine, and acts
Court or Ciarus Act 1108

amendatory thereof and supplemental thereto, and for the pur-
pose of furnishing proper terminals and facilities for barge canal
traffic as provided for by chapter seven hundred and forty-six of
the laws of nineteen hundred and eleven, and acts amendatory
thereof and supplemental thereto. Such designations of judges
may be changed in the discretion of the presiding judge, provided
at least two of such judges be at all times assigned to the hearing
and determination of such claims. Nothing in this section con-
tained, however, shall be construed to limit the power of the judges
so designated, or either of them, from hearing and determining
claims other than such appropriation cases whenever and to the
extent that it appears to the satisfaction of such judges, or either
of them, that such appropriation cases do not require their atten-
tion or that of either of them.

[Code, § 283, without change. ]

§ 7, Appointment and duties of court officers. The court of claims
shall appoint and may at pleasure remove, a clerk, a stenographer,
and an attendant, who shall also act as messenger ;. and they shall
perform such duties as the court may prescribe. Before enter-
ing upon the duties of his office, the clerk shall make and file in
the office of the comptroller, a bond for the faithful performance
of his duties in an amount and with sufficient sureties to be ap-
proved by at least two of the judges, which approval shall be
endorsed on said bond. The court may also appoint such other
employees as may be needed. [The clerk and stenographer ap-
pointed by the board of claims are continued as such officers and
employees of the court of claims until the appointment and quali-
fication of their successors. ]

[Code, § 266, without change except the omission of last
sentence as temporary and obsolete. |

g 8. Salaries and compensation of court officers. Each officer of
the court of claims shall receive an annual salary, payable
monthly, and other compensation as follows:

1. The clerk, three thousand six hundred dollars.

2. The court stenographers, who shall also be deputy clerks,
three thousand dollars and five cents a folio for copies of minutes
and testimony furnished at the request of the claimant. .

3. The stenographer to the judges, who shall also act ds relief
court stenographer, three thousand dollars.
1104 Report or Jornt LuaisuativeE ComMirrEeEe

4, The clerk and court stenographers and the stenographer to
the judges, and relief court stenographer and court stenographers
shall be paid their actual expenses while in the discharge of their
respective duties, elsewhere than in the city of Albany, to be
audited by the court and paid from the contingent fund. No
charge shall be made against the state by the clerk or the stenog-
raphers for copies of minutes, testimony or papers, furnished to
the attorney-general or to the court, or filed in the office of the
clerk. i

[Code, § 280, without change. ]

8 9, Seal of court. The court shall adopt and procure an official
seal, with suitable device and inscription. A description of such
seal, with an impression thereof, shall be filed in the office of the
secretary of state. The expenses of procuring such seal shall be
paid out of the contingent fund of the court.

[Code, § 267, without change. ]

-§ 10. Record of proceedings and report to legislature. The court
shall keep a record of its proceedings, and, at the commencement
of each session of the legislature, and at such other times during
the séssion as it may deem proper, or as the senate or assembly
may request, report to the legislature the claims upon which it

has finally acted, with a statement of the judgment rendered in
each case.

[Code, § 271, without change.]

§ 11. Annual report to comptroller. On the first day of January
in each year, the clerk shall report, to the comptroller, under oath,
a detailed statement of his disbursements made under the direc

tion of the court from its contingent fund during the preceding
year.

[ Code, § 273, without change. ]
Court oF Crarms Act 1105

ARTICLE 2

JURISDICTION AND PRACTICE PROVISIONS

Section 12

18.
14.
15.
16.

17.
18.
19.
20.
21.
22,
23.

24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.

Jurisdiction of court.

Sessions of court.

Court rules and procedure.

Notice of claim.

Papers to be furnished superintendent of public
works in canal claims.

State to be represented by the attorney-general.

Calendar practice.

Notice of trial.

Interpleader, consolidation and new parties.

Perpetuating testimony as to claims.

Examinations by attorney-general as to claims.

Proceedings upon failure of claimant to appear or
proceed.

Judgments.

No awards except upon legal evidence.

Compromise of canal claims.

Disposition of adverse and conflicting claims.

Appeals generally.

Time and manner of taking appeal.

Case on appeal.

Preference in appeals in appellate court.

Taxation of costs, fees and disbursements.

Allowance for expense of searches in certain cases.

Expense of procuring testimony on commission.

§ 12. Jurisdiction of court. The court of claims possesses all
of the powers and jurisdiction of the former board of claims. It
also has jurisdiction to hear and determine a private claim against
the state, including a claim of an executor or administrator of a
decedent who left him or her surviving a husband, wife or next
of kin, for damages for a wrongful act, neglect or default, on the
part of the state by which the decedent’s death was caused, which
shall have accrued within two years before the filing of such claim
and the state hereby consents, in all such claims, to have its
1106 Reporr or Joint Leaisitative Commirree

liability determined. It may also hear and determine any claim
on the part of the state against the claimant, or against his
assignor at the time of the assignment, and must render judgment
for such sum as should be paid by or to the state. But the court
has no jurisdiction of a claim submitted by law to any other
tribunal or officer for audit or determination except where the
claim is founded upon express contract and such claim, or some
part thereof, has been rejected by such tribunal or officer.
[Provided, further, that nJ Nothing [herein] im this act con-
tained shall be construed to allow the court to hear any claim
which as between citizens of the state would be barred by lapse
of time or of any claim heretofore accrued and of which the said
court or board has had jurisdiction and which was barred by
lapse of time at the date when this section, as amended, takes
effect. Provided further, that the court shall have jurisdiction,
and may hear and determine all claims accrued and actually filed
at any time prior to September first, nineteen hundred and twelve,
and filed within two years from the time they accrued, though
no notice of intention to file was given, as required by this sec-
tion, if such claims when filed were not barred by lapse of time and
the court or board had jurisdiction and authority to hear and
determine the same except for the lack of such notice; and such
jurisdiction shall attach without refiling or previous notice.

[Code, § 264, except fifth to tenth sentences, inclusive, which
have been covered-in other sections. |

§ 13. Sessions of court. The court shall hold at least eight ses-
sions each year, and unless otherwise ordered by the court shall
be held as fullows: On the fourth Monday of January at the city
of Albany; on the third Monday of February at the city of Syra-
cuse; on the fourth Monday of March at the city of Utica; on
the fourth Monday of April at the city of Albany; on the fourth
Monday of May at the city of Rochester; on the third Monday of
June at the city of Buffalo; on the fourth Monday of September
at the city of Albany; on the fourth Monday of November at the
city of Albany, and it may also hold adjoumed or special ses-
sions at such other times and places 1 in the state as it may deter-
mine. It may also hold a session and take testimony where the
claimant resides or where the claim is alleged to have arisen, or
in the vicinity, and may view any premises affected by the pro-
ceedings, and in ease of any appropriation of land by the state,
Cotrr or Cuarms Act |" 1107

the value of which shall exceed five hundred dollars, it shall be
the duty of the court, or the judge or judges hearing the claim,
to view the premises affected by the appropriation. The sheriff
of any county, except Albany, shall furnish for the use of the
court suitable rooms in the court house of his county for any
session ordered to be held thereat and shall if required attend
said session. His fees for attendance shall be paid out of the
contingent fund of the court at the same rate as for attending
a term of the supreme court in that county.

A session of the court may be conducted and testimony and
proof taken and arguments heard thereat, by one or more judges
to be designated by the presiding judge; but no determination or
judgment of the court shall be rendered except upon the con-
currence of at least two of the judges of the court. Not more
than three judges shall sit in any case.

Adjourned or special sessions of the board of claims heretofore
designated to be hereafter held, shall be held as sessions of the
court of claims unless such court shall cancel such designation.

[Code, § 268 without change except the omission of the last
sentence which is temporary and obsolete. ]

' § 14. Court rules and procedure. The court may establish rules
for its government, and the regulation of practice therein; pre-
seribe the forms and methods of procedure before it, vacate or
modify judgments, and grant new trials, and except as other-
wise provided i in said'rules and regulations, or the code of civil
procedure, the practice shall be the same as in the supreme court.
Rules of the board of claims or former court of claims, now in
force, shall continue to be the rules of the court of claims until
changed by such court.

[ Code, § 265, without change. |

-§ 15. Notice of claim. No claim other than for the appropria-
tion of land shall be maintained against the state unless the
claimant shall. within six months after such claim shall have
acerued, file in the office of the clerk of the board of claims and
with the attorney-general a written notice of intention to file a
claim against the state, stating the time when, and the place
where sich claim arose and in detail the nature of the same,
1108 Report or Joint Lzre@istative ComMMItTTEE

which notice shall be signed and verified by the claimaut before
an officer authorized to administer oaths,

[Code, § 264, sixth sentence without change. Remainder of
section covered in other sections. ]

§ 16. Papers to be furnished superintendent of public works in
canal claims. In all cases of canal claims a copy of each such
claim and of notice of claim which is or may hereafter be
required to be filed with the court of claims shall be filed with
the superintendent of public works who on request from the
attorney-general, shall furnish such assistance as he may require
in subpoenaing witnesses and preparing the cases for trial.

[Code, § 270, second sentence without change. Remainder
of section covered elsewhere. ]

§ 17, State to be represented by the attorney-general. The
attorney-general shall represent the state in all proceedings
relating to claims. The attorney-general may designate a clerk
in his office to assist in the preparation of cases for trial and to
attend a term of the court.

[Code, § 270, except second and last sentences, which are
covered in other sections. |

§ 18, Calendar practice. A calendar shall be prepared by the
clerk of the court of claims for each regular session thereof.
Such calendar shall be comprised of all pending claims in the
district where such session is to be held and the claims shall
appear therein in the order of the date of the filing thereof
respectively.

[Code, § 284, first two sentences. Remainder covered in other
sections. |

§ 19. Notice of trial. The attorney-general may notice any of
such claims for trial at any such term by serving upon the
attorney for the claimant a notice of trial at least fourteen days
before the commencement of such term.

[Code, § 284, third sentence without change. Remainder
covered in other sections. ]
Court or Ciarms Act 1109

§ 20. Interpleader, consolidation and new parties. Jurisdiction
and powers are also conferred upon the court of claims in its
discretion, to order other parties, known or unknown, to be
brought in and made parties to any action or proceeding pend-
ing in said court or substituted whenever it appears or is made
to appear to the court, necessary to a complete determination
of the controversy, or the determination of a hiablility ; to con-
solidate claims or actions, to order interpleader, in the same
manner and to like extent and with like effect in matters over
which said court of claims have or saall have jurisdiction, as
is conferred upon other courts by sections [four hundred and
fifty-two, seven hundred and fifty-six, eight hundred and seven-
teen, eight hundred and twenty and twenty-five hundred and
eighteen of this code] ezghty-three, ninety-six, one hundred and
ninety-three and two hundred and eighty-seven of the civil prac-
tice act, and section forty-eight of the surrogate practice act.
Said parties may be brought in by order instead of by citation
or summons, which order may be served personally or by publica-
tion in like manner as is provided for the service of a citation
in surrogate’s court; and in the cases provided in this section
the said court may render judgment for or against any of the
parties in said action or proceeding as may be just and equi-
table.

[Code, § 281, without change. ]

§ 21. Perpetuating testimony as to claims. At any time after a
claim shall have been filed against the state, testimony in relation
thereto may be perpetuated, upon the application of the attorney-
general or of a claimant to the court of claims or a judge thereof,
in accordance with rules and regulations which the court of
claims is hereby authorized to establish for the purpose, or, in
the absence thereof, in substantial accordance with [chapter nine,
title three, articles one and two of the code of civil procedure]
articles twenty-nine and thirty of the civil practice act; pro-
vided, however, that at any time after the state shall have
lawfully appropriated lands, structures, waters, franchises or
any other property whatsoever, the attorney-general or a claimant
may apply to a justice of the supreme court for the perpetuation
of testimony pursuant to [chapter fourteen, title one, article ten
of the code of civil procedure] article thirty-two of the civil prac-
1110 Report or Joint Lua@istatrive ComMirres

tice act and upon such application it shall not be necessary to
show that the property for one year next preceding the date of
the petition has been in the possession of the state, or in the
possession of the state and those from whom the state derives
title, either as sole owner or as joint tenant or as tenant in
common. The court of claims or the judge thereof or the justice
of the supreme court to which or to whom any such application
-is made may direct the depositions to be taken before the court
of claims or before one or more judges thereof or before an
official referee acting pursuant to! either chapter two hundred
‘and twenty-nine of the laws of nineteen hundred and eleven or
section one hundred and fifteen of the judiciary law.

[Code, § 265-a, without change. ]

§ 29, Examinations by attorney-general as to claims. The
attorney-general may require any person filing such a notice of
claim for any cause whatever against the state to be sworn before
him or one of his deputies designated by him for that purpose,
within the county of the claimant’s residence, relating to such
claim, and when so sworn, to answer orally as to any facts rela-
tive to the justness.of such claim. Whenever any claim for the
appropriation of property is pending or has been determined in
the court of claims and the attorney-general is required by law
to examine the title of the claimant thereto, prior to the pay-
ment of an award, the attorney-general may require such claim-
ant to be sworn before him or one of his deputies designated by
him for that purpose within the county of the claimant’s resi-
dence, or if the claimant be a corporation within the county
where its principal place of business in this state is located, or if
the claimant be a nonresident within the county where the prop-
erty is situated, relating to such title, and when so sworn, to
answer orally as to any facts relative to the title of such property.
The attorney-general may also require such claimant to file with
him an affidavit stating any material facts relating to such title.
Wilful false swearing before the attorney-gener rl or deputy
attorney- general is perjury and punishable as such,

[ Code, § 264, seventh, eighth, ninth and tenth sentences, with-
out change. Remainder covered in other sections. ]

§ 23. Proceedings upon failure of claimant to appear or proceed.
When any claim of the character mentioned in [the last preced-
Court or Cruaimns Act 1111

ing] section six of this act is reached for trial by the court, if
the claimant fails to appear, or if he appears but is not ready to
proceed to the trial thereof, the court, in its discretion, may pro-
ceed forthwith to take proofs and testimony therein offered by
the state or otherwise, and may make an award in accordance
therewith and cause a judgment to be entered thereon. If, in
such a case, the court shall decide not to proceed forthwith to take
such proofs and testimony, interest snall not accrue or be allowed
upon such a claim between such date and the entry of judg-
ment in such case, unless, in the exercise of its discretion, for
good cause shown, the court shall otherwise determine.

When any claim other than one of those mentioned in [the last
preceding] section sia of this act is noticed for trial as herein
provided, if the claimant fails to appear, the court, upon the
motion of the attorney-general, may dismiss the same, in which
event such default shall not be opened nor shall such claim be
restored to the calendar except upon the motion of the attorney
for the claimant, based upon affidavits showing a reasonable and
satisfactory excuse for such default and that such claim is a
meritorious one. Such notice of motion and the affidavits upon
which the same is based shall be served upon the attorney-general
at least eight days before such application, unless a shorter time
shall be ordered by the court. Whenever any interest-bearing
claim; other than one of those mentioned in [the last preceding]
section six of this act shall have been dismissed and thereafter
restored to the calendar as herein provided, no interest shall
acerue to be allowed thereon between the date of such dismissal
and the entry of judgment in such case.

[Code, § 284, except first three sentences, which are covered
elsewhere. |

§ 24. Judgments. 7. The determination of the court upon a
claim shall be by a judgment to be entered in a book to be kept
by the clerk for that purpose, and signed and certified by him.
2, Within ten days after the entry of the judgment, the clerk
shall serve a certified copy thereof on the claimant or his attorney
and also upon the attorney-general. 3. If the claim arises in a
case where the state seeks to appropriate or has appropriated
land for a public use, the judgment shall contain a description
of such land. 4. A transcript of a judgment in favor of the
state, certified by the clerk of the court, may be filed and
1112 Reporr or Joint Lueistarive Commirrer

docketed in the clerk’s office of any county; and upon being 80
docketed shall become and be a lien upon the property of the
claimant in that county, to the same extent and enforceable by
execution in the same manner, as a judgment of the supreme
court. 6. A final judgment against the claimant on any claim
prosecuted as provided in this article shall forever bar any
further claim or demand against the state arising out of the
matters involved in the controversy. 6. Interest shall be allowed
on each judgment of the court of claims from the date thereof
until the twentieth day after the comptroller is authorized to
issue his warrant for the payment thereof or until payment, if
payment be made sooner. 7. But no such judgment shall be
paid until there shall be filed with the comptroller a copy thereof
duly certified by the clerk of the court of claims together with a
certificate of the attorney-general that no appeal from such judg-
ment has been or will be taken by the state, and a release and
waiver by the attorney for the claimant of any len for services
upon said claimant’s cause of action, claim, award, verdict,
report, decision or judgment in favor of said claimant, which
said attorney may have thereon under and by virtue of section
four hundred and seventy-five of the judiciary law; and where
damages are awarded for the permanent appropriation of land
for a public use, there shall also be filed with the comptroller, a
satisfactory abstract of title and certificate of search as to in-
cumbrances, showing the person demanding such damages to be
legally entitled thereto. 8. The provisionseof this section as to
limitation of interest shall not apply, however, to judgments paid
from the various trust funds or sinking funds of the state, which
funds shall be entitled to interest until the twentieth day after
an appropriation is available for the reimbursement thereof or
until payment, if payment be sooner made.

[Code, § 269, without change except that the section has been
subdivided. |

§ 25. No awards except upon legal evidence. In no case shall
any liability be implied against the state, and no award shall be
made on any claim against the state except upon such legal evi-
dence as would establish liability against an individual or cor-
poration in a court of law or equity.

[Code, § 264, fifth sentence without change. Remainder
covered in other sections. ]
Court or Crarms Act 1113

§ 26. Compromise of canal claims. [And] No claims brought
against the state on account of the canal shall be settled or
compromised for any amount without the written consent thereto
by the superintendent of public works or his duly authorized
representative.

[Code, § 270, last sentence, without change. Remainder
eovered elsewhere. |

§ 27, Disposition of adverse and conflicting claims. If there are
adverse and conflicting claims to the lands, structures, waters,
franchises or any other property whatsoever lawfully appro-
priated by the state or an apparent lien or incumbrance on the
property so appropriated or on any interest therein, or to the
award therefor, unless the holders of such adverse or conflict-
ing claims or the owner of such lien or incumbrance shall con-
sent that their respective interests may be determined by the
court of claims, or if the owners of any property so appropriated
or of any interests therein are indeterminable or unknown, the
court shall direct the comptroller to deposit the amount awarded
in any bank, in which moneys belonging to the fund from which
such compensation is payable may be deposited, to the account
of such award, to be paid and distributed to the persons entitled
to the same as ordered by the supreme court on application of
any person.

[Code, § 268-a, without change. ]

§ 28, Appeals generally. Either party may appeal from an
order or judgment of the court of claims to the appellate divi-
sion of the supreme court of the third department. The appeal
from a judgment may be taken upon questions of law or of fact,
or both, or for an alleged excess or insufficiency of the judgment.
Upon such appeal, the court may affirm, reverse, or modify the
judgment, or dismiss the appeal, or grant a new trial. The pro-
visions of [this code] the civil practice act relating to appeals in
the supreme court apply, so far as practicable, to appeals from
orders or judgments of the court of claims, except as modified in
this [article] chapter.

[Code, § 275, without change. ]
1114 Report or Joint Leaistative ComMt(rreEe

§ 29, Time and manner of taking appeal. An appeal must be
taken within thirty days after the entry and service of the order,
or the service by the clerk of a certified copy of the judgment,
by serving upon the claimant or his attorney, or upon the
attorney-general, and upon the clerk, in like manner as in the
supreme court, a written notice to the effect that the appellant
appeals from the order or from the judgment or from a specified
part thereof, and briefly stating the grounds of the appeal.

[Code, § 276, without change. ]

§ 30. Case on appeal. With the notice of appeal from a judg-
ment, the appellant shall serve upon the adverse party a case
containing so much of the evidence as the appellant may deem
necessary to present the questions raised by the appeal. Within
ten days after the service of the case, the respondent may propose
and serve amendments thereto, and the case may be settled upon
five days’ notice by any judge of the court. Notice of the settle
ment may be served by either party, within ten days after service
of the proposed amendments. The court or a judge thereof may
extend the time. for serving a case or amendments.

[Code, § 277, without change. ]

§ 31. Preference on appeals in appellate court. An appeal taken
after the calendar for a term of the appellate court is prepared
may be placed thereon upon the application of the attorney-gen-
eral at any time during the then current term, and brought on
for hearing as a preferred cause upon a notice of fourteen days.

[Code, § 278, without change. ]

' § 32, Taxation of costs, fees and disbursements. Costs, wit-
nesses’ fees and disbursements shall not be taxed, nor shall
counsel or attorneys’ fees be allowed by the court to any party.

[Code, § 274, first sentence. Remainder covered in next
section. |

§ 33, Allowance for expense of searches in certain cases. The
[said] court of claims, whenever the appraised value of the
premises appropriated shall be less than two hundred dollars,
shall in their award make a reasonable allowance for the expense
Court or Cratmms Act 1115

of procuring the abstract of title and certificate of search as to
incumbrances, which the statutes require shall be furnished the
comptroller before payment of any damages which may be
awarded for the permanent appropriation of land or water.

[Code, § 274, last sentence. Remainder covered in preceding
section. |

§ 34. Expense of procuring testimony on commission. When
testimony is taken on commission at the instance of the claimant,
the expense thereof including the fees of the commissioner, shall
be paid by the claimant; and when taken at the instance of the
state, such fees and all expenses incurred by the attorney-general
shall be paid out of the contingent fund of the court.

[Code, § 272, without change. ]

ARTICLE 3
LAWS REPEALED; WHEN TO TAKE EFFECT

Section 35. Laws repealed.
36. When to take effect.

§ 35, Laws repealed. Sections two hundred and sixty-three to
two hundred and sixty-five, both inclusive, section two hundred
and sixty-five-a, sections two hundred and sixty-six to two hun-
dred and sixty-eight, both inclusive, section two hundred and
sixty-eight-a, sections two hundred and sixty-nine to two hundred
and eighty-four, both inclusive, and all acts amendatory thereof,
are hereby repealed.

§ 36, When to take effect. This act shall take effect April
fifteenth, nineteen hundred and twenty.
 

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NEW YORK CITY COURT ACT

{1117}
NEW YORK CITY COURT ACT

AN ACT in relation to the city court of the city of New York
and the practice and procedure therein.

The People of the State of New York, represented in Senate
and Assembly, do enact as follows:

NEW YORK CITY COURT ACT

Article 1. Organization of court. (§§ 1-4.)
2. Officers of court. (§§ 5-17.)
3. Jurisdiction and powers. (§§ 18-384.)
4. Provisions relating to practice. (§§ 35-45.)
5. Special provisions for marine causes. (§§ 46-56.)
6. Summons and pleadings. (§§ 57-60.)
7. Judgments. (§§ 61, 62.)
8. Costs and fees. (§§ 63-66.)
9. Appeals. ($$ 67-77.)
10. Application of supreme court practice; exceptions.
(8 78, 79.)
11. Laws repealed; when to take effect. (§§ 80, 81.)

ARTICLE 1
ORGANIZATION OF COURT

Section 1. Short title.
2. Constitution and powers of court.
3. Suspension of justices from office.
4. Designation of chief justice and powers.

§ 1. Short title. This act shall be known as the New York
city court act.
[ New. ]

§ 2. Constitution and powers of court. The city court of the

city of New York shall consist[s] of ten justices, one of whom
f111a8A1
1120 Report or Jornt Leaisiarive ComMirree

is the chief justice of the court. Each justice must perform his
share of the labors and duties appertaining to the office. One
of the justices must attend at the chambers of the court, from
ten o’clock in the morning until four o’clock in the afternoon of
each day, except Sunday, a public holiday, or a day upon which
the inhabitants of the city of New York generally refrain from
business. Each justice, while in the rooms of the court, and not
actually engaged in the performance of other official duties,
must act upon any application for his official action, properly
made to him. The justice, assigned to a trial term or a special
term, must remain in attendance, until the day calendar is dis-
posed of, or for such other time as is reasonable.

[Code, § 320, without change. ]

§ 3. Suspension of justices from office. Where it appears pre
sumptively, to the satisfaction of the governor, that a justice of
the court has been guilty of corruption, or other gross misconduct
in office; or habitually neglects to perform his share of the labors
and duties appertaining to the office; or is incapable of properly
discharging the same; the governor may, in his discretion, make
an order, suspending that justice from the exercise of the duties
of his office, and directing that his compensation cease. Such
an order must recite the grounds upon which it is made; and it
remains in force, unless it is sooner revoked by the governor,
until the final adjournment of the next session of the legislature;
or, if the legislature is then in session, until the final adjourn-
ment of that session.

[Code, § 321, without change. ]

§ 4. Designation of chief justice and powers. The justices of
the court, or a majority of them, must, from time to time, as a
vacancy occurs in the office of chief justice, designate one of
their number to be chief justice. A certificate of the desig-
nation, under the hands of the justices making the same, must
be filed in the office of the clerk of the court. The person so
designated shall be chief justice during his term of office. The
chief justice has the like authority, within the jurisdiction of the
court, as a presiding justice of the supreme court.

[Code, § 322, without change. ]
New York Crry Courr Act 1121

ARTICLE 2
OFFICERS OF COURT

Section 5. Officers of court and their salaries.

5
6. Duties of deputy clerk.
7. Designation of special deputy clerks.
8. Clerk’s accounting for fees.
9. Judgment docket.
10. Docket-book.
11. Appointment of stenographers.
12. Appointment of interpreters.
13. Attendance of official interpreter.
14. Appointment of attendants; their salary.
15. Fees of clerks, interpreters and attendants.
16. Oaths of office of officers.
17. Suspension of officers of court.

§ 5, Officers of court and their salaries. The court has a ‘clerk
who is appointed, and may be removed, by the justices thereof, or
a majority of them, for cause upon charges and after a hearing
after notice, and who shall receive a salary of six thousand dol-
lars per annum. The justices of the court or a majority of them
must appoint, and may remove, six deputy clerks and not more
than twenty-one assistants and a stenographer and typewriter
operator for the purpose of copying their minutes and opinions
and doing such other confidential work which may be required
by said justices or the clerk of the court. The clerk is respon-
sible for the faithful discharge of his duty by each deputy clerk,
and each assistant and the stenographer and typewriter operator.
Each deputy clerk, each assistant, and the stenographer and
typewriter operator, is entitled to a salary, fixed and to be paid
as prescribed by law.

(Code, § 328, without change. ]

§ 6, Duties of deputy clerk. The deputy clerk has all the pow-
ers, and may perform all the duties of the clerk, when the office
of clerk is vacant, or at the clerk’s office, when the clerk is absent

36
1122 Report or Jomnt Learst.ativk CoMMITTER

therefrom, or at a term or sitting of the court which the deputy
clerk attends.

[ Code, § 329, without change. |

§ 7. Designation of special deputy clerks. The clerk may desig-
nate as many of his assistants, as the justices of the court, or a
majority of them deem necessary, as special deputy clerks. Each
special deputy clerk possesses, in the absence of the clerk and a
deputy clerk, the same powers as the clerk, at any sitting or
term of the court which he attends, with respect to the business
transacted thereat.

[Code, § 330, without change. |

§ 8. Clerk’s accounting for fees. The clerk must receive, for
the use of the city of New York, the fees allowed by law. Ie
shall not perform any service, for which a fee is allowed hy law,
until the fee therefor is paid to him. He must, on the first day
of each month, or within three days thereafter, render to the
comptroller of the city, an account, under oath, of all fees received,
directly or indirectly, during the preceding month, by him, or
by a deputy clerk, or either of his assistants, for any official
service; and he must, at the same time, pay the same into the
treasury of the city of New York. When the return and pay-
ment are so made, the clerk is entitled to receive his compensa-
tion, for the period included in the return. He is not entitled
to compensation for a period, for which he has not made his
return and payment.

[Code, § 331, without change. ]

§ 9, Judgment docket. [Each county clerk, and t] The clerk of
the city court of the city of New York, must keep one or more
books, ruled in columns, convenient for making the entries, pre-
scribed in the next section; in which he must docket, in its
regular order and according to its priority, each judgment,
which he is required [by this article] to docket. The expense
of procuring new books when necessary, is a county charge.

[Code, § 1245, pt., without change as applicable to the city
court. |
New Yorx Crry Court Acr 1123

§ 10. Docket-book. [Each] Zhe clerk [, specified in the last
section, ] of the city court of the city of New York, must, when
he files a judgment-roll, upon a judgment, [rendered in a court
of which he is clerk,] docket the judgment, by entering, in the
proper docket-book, the following particulars, under the initial
letter of the surname of the judgment debtor, in its alphabetical
order:

1. The name, at length, of the judgment debtor; and also his
residence, title, and trade or profession, if any of them are stated
in the judgment ;

2. The name of the party, in whose favor the judgment was
rendered ;

3. The sum, recovered or directed to be paid, in figures;

4. The day, hour, and minute, when the judgment roll was
filed ;

5. The day, hour, and minute, when the judgment was docketed
in his office;

6. The court in which the judgment was rendered, and, if it
was rendered in the supreme court, the county where the judg-
ment-roll is filed ;

7. The name of the attorney for the party recovering the
judgment.

If there are two or more judgment debtors, those entries must
be repeated, under the initial letter of the surname of each.

A clerk with whom a judgment-roll is filed upon a judgment
docketed as prescribed in [the last] this section must furnish to
any person applying therefor and paying the fees allowed by law
one or more transcripts of the judgment, attested by his signature.

[Code, § 1246, without change, as applicable to the city court.
Last paragraph is first sentence of Code § 1247, also applicable to
city court. ]

§ 11, Appointment of stenograpbers. The justices of the court
or a majority of them must appoint ten stenographers of the
court, and may at pleasure remove [either] any of them. The
justices of the court, or a majority of them, must, from time to
time, assign each of the stenographers to duty as the trial or
special term. Each stenographer is entitled to a salary, fixed
and to be paid as prescribed by law and must attend the term to
which he is assigned.

[Code, § 332, without change. |
1124 Rerort or Jotnr Lecisnative Commrrrer

§ 12. Appointment of interpreters. The justices of the court
or a majority of them, from time to time, must appoint, and
may at pleasure remove, three official interpreters of the court,
who are entitled to a salary, fixed and to be paid as prescribed
by law.

[Code, § 333, pt., without change. ] :

§ 13, Attendance of official interpreter. Each interpreter must
attend any trial or special term of the court, where his services
are required; and the justice therein presiding shall regulate his
attendance thereat.

[Code, § 333, pt., without change. ]

§ 14, Appointment of attendants; their salary. The justices of
the court or a majority of them must appoint, and may at
pleasure remove, as many attendants upon the court as they deem
necessary, not exceeding twenty-five. The justices of the court,
or a majority of them, may regulate their attendance. Each
attendant is entitled to a salary fixed, and to be paid as pre
scribed by law.

[Code, § 835, without change. ]

§ 15. Fees of clerks, interpreters and attendants. The clerk,
[the] a deputy clerk, an assistant to the clerk, the official inter-
preter, or an attendant, shall not receive any fee or compensation,
except his salary, for any official service performed by him.

[Code, § 336, without change. ]

§ 16. Oaths of office of officers. Before entering upon their
official duties the clerk, deputy clerks, assistant clerks, stenog-
raphers, interpreters and attendants must subseribe and file i in ihe
office of the clerk of the city of New York, the constitutional oath

of office.
[Code, § 333, pt., without change. ]

§ 17. Suspension of officers of court. A justice of the court may,
by an instrument under his hand, suspend a stenographer, or an
officer specified in the last section, for a period not exceeding
ten days from the filing thereof. Such an instrument must
New York Crry Courr Acr 1125

express the cause of the suspension; it must be filed in the office
of the clerk of the city and county of New York; and it may
be revoked, at any time before the expiration of the period of
suspension, by an instrument filed in like manner, under the
hand of the justice who executed the first instrument, or the
hands of a majority of the justices of the court. Where such
an instrument has been revoked, the officer shall not be again
suspended for the same cause.

[Code, § 337, without change. ]

ARTICLE 3
JURISDICTION AND POWERS

Section 18. General jurisdiction.

19. Limitation upon jurisdiction.

20. Jurisdiction in special causes.

21. Naturalization of aliens.

22. Removal of action to supreme court.

23. Compulsory removal to supreme court in certain
cases.

‘24. Stay on removal of action.

25. Effect of removal.

26. Order of removal.

27. Power of justices to administer oaths[[, et cetera].

28. Orders and warrants of attachment.

29. When court may relieve from imprisonment.

30. References of questions arising upon motion.

31. References of issues for trial.

32. Decisions and findings of fact and conclusions of
law.

33. Sale of perishable property.

34. Destruction of records and papers.

§ 18. General jurisdiction. The jurisdiction of the city court
of the city of New York, extends to the following cases:

1. An action against a natural person, or against a foreign or
domestic corporation, wherein the complaint demands judgment
for a sum of money only, or to recover one or more chattels, with
or without damages for the taking or detention thereof;
1126 Ruporr ov Joint Leatstarive ComMrirrEer

2. An action to foreclose or enforce a lien upon real property
in the city of New York, created as prescribed by statute, 11)
favor of a person, who has performed labor upon, or furnished
materials to be used in the construction, alteration or repair of
a building, vault, wharf, fence, or other structure; or who has
graded, filled in, or otherwise improved, a lot of land, or the
sidewalk or street in front of or adjoining a lot of land;

3. An action to foreclose or enforce a lien, for a sum not
exceeding [five] two thousand dollars, exolisive of interest, upou
one or more chattels;

4, The taking and entry of a judgment, upon the confession of
one or more defendants, where the sum, for which judgment is
confessed, does not exaeed [five] two thousand dollars, exclusive
of interest from the time of making the statement, upon which the
judgment is entered, provided, however, that the defendant at
the time of making such statement was a resident of the city of
New York.

[Code, § 315; § 1275 pt. The amendment of § 315 by L. 1911,
ch. 569, increasing jurisdiction to $5,000 held unconstitutional in
Lewkowitez v. Queen Aeroplane Co., 207 N. Y. 290.]

§ 19, Limitation upon jurisdiction. The jurisdiction conferred
by the last section is subject to the following limitations and
regulations:

1. In an action wherein the complaint demands judgment for
a sum of money only, the sum, for which judgment is rendered in
favor of the plaintiff, cannot exceed [five] two thousand dollars,
exclusive of interest, and costs as taxed ; except where it is brought
upon a bond or undertaking given in an action or special pro
ceeding in the same court, or before a justice thereof; or to
recover damages for a breach of promise of marriage; or where
it is a marine cause, as that expression is defined in the next
section. Where the action is brought upon a bond or other con-
tract, the judgment must be for the sum actually due, without
regard to the penalty therein contained; and where the moncy is
payable in instalments, successive actions may be brought for
the instalments, as they become due ;

2. In an action to recover one or more chattels, a judgement
cannot be rendered in favor of the plaintiff, for a chattel or
New York Crry Courr Acr 1127

chattels, the aggregate value of which exceeds [five] two thousand
dollars.

[Code, § 316. See note to last section. ]

§ 20. Jurisdiction in special causes. The city court of the city
of New York possesses the same jurisdiction in the following
actions as the supreme court of the state:

1. An action in favor of a person, belonging to a vessel in the
merchant service, against the owner, master, or commander
thereof, for the reasonable value of services, or for the breach of
a contract to pay for services, rendered or to be rendered on
board of the vessel, during a voyage, wholly or partly per-
formed, or intended to be pentarmed by it;

2. An action in favor of or against a person, belonging to or on
board of a vessel in the merchant service to recover damages for
an assault, battery, or false imprisonment, committed on board
the vessel, upon the high seas, or in a place without the United
States.

But this section does not confer upon the city court authority
to proceed as a court of admiralty or maritime jurisdiction.

[Code, § 317, without change. ]

§ 21. Naturalization of aliens. The court shall have power to
naturalize aliens.

[Code, § 318, without change. ]

§ 22, Removal of action to supreme court. The supreme court,
at a term held in the first judicial district, may, by an order
made at any time after joinder of an issue of fact, and before the
trial thereof, remove to itself an action brought in the city court,
for the purpose of changing the place of trial thereof. Where
an order for removal is made, as prescribed in this section, the
place of trial must be changed by the same order to another
county, and the subsequent proceedings therein must be the same
as if the action had been originally brought in the supreme
court. [The provisions of sections 344, 345 and 346 of this act
apply to an application to remove such an action, and to the
proceedings upon and subsequent to the removal, as if the city
1128 Revorr or Jorvr Lueaisuarive Commirree

court were specified in those sections in place of the county
court, and a justice thereof in place of the county judge. }

[| Code, § 319, without change; except to omit references to
§§ 844-346, which are included in §§ 24—26, post. ]

§ 23. Compulsory removal to supreme court in certain cases. The
supreme court, at a term held in the first judicial district, must,
on the motion of any party, by an order made at any time
before the entry of judgment, remove to itself an action brought
in the city court of the city of New York in the following cases:

1. An action to foreclose or enforce a lien, for a sum exceeding
two thousand dollars, exclusive of interest, upon one or more
chattels;

2, An action wherein the complaint demands judgment for a
sum of money only, exceeding two thousand dollars, exclusive of
interest and costs as taxed ; except where the action is brought upon
a bond or undertaking given in an action or special proceeding
in the same court, or before a justice thereof; or to recover dam-
ages for a breach of promise of marriage; or where it is a marine
cause, as that expression is defined in section [317 of this code.]
twenty of this act ;

3. An action to recover one or more chattels the aggregate value
of which exceeds two thousand dollars.

Upon the entry of the order of removal in the office of the
clerk of the county of New York, the city court shall proceed no
further therein, and the clerk of the city court must forthwith
deliver to the clerk of the county of New York all papers filed
therein, and certified copies of all minutes and entries relating
thereto, which must be filed, entered or recorded, as. the ease
requires, in the office of the clerk of the county of New York,
and thereupon the supreme court shall proeced in said action as
though said action had been commenced in said supreme court.
and all proceedings had in the city court prior to the entry of
said order of removal shall be of like force and effect as though
had in the supreme court. .

[ Code, § 319-a, without change. Enacted in view of 207 N.Y.
290. See note to § 18.]

S$ 24, Stay on removal of action. An order to stay proceedings,
for the purpose of affording an opportunity to make the appliea-
New Yorx Crry Courr Act 1129

tion for removal, may be made by [the county] a city judge, or
by a judge authorized to make such an order in the supreme
court, and with like effect and under like circumstances.

[Code, § 345; made applicable by Code, § 319 (§ 22, supra).]

§ 25. Effect of removal. The removal of an action or special
proceeding, [as prescribed in this title, ] does not invalidate, or in
any manner impair, a process, provisional remedy, or other pro-
ceeding, or a bond, undertaking, or recognizance in the action
or special proceeding so removed; each of which continues to have
the same validity and effect, as if the removal had not been made.
Where bail was given, the surrender of the defendant in the
supreme court has the same effect, as a surrender in the [county]
city court would have had, if the action or special proceeding had
remained therein.

[Code, § 346; made applicable by Code, § 319 (§ 22, supra). ]

§ 26. Order of removal. An order of removal [[, made as pre-
scribed in either of the last two sections,] takes effect upon the
entry thereof in the office of the county clerk. Where the order
directs that the action be tried in another county, the clerk with
whom it is entered, must forthwith deliver to the clerk of that
county, all papers filed therein, and certified copies of all minutes
and entries relating thereto; which must be filed, entered, or
recorded, as the case requires, in the office of the last mentioned
elerk. [{[The provisions of section 271 of this act apply to an
appeal taken from such an order.]

[Code, § 344, made applicable by Code, § 319 (§ 22, supra). |]

§ 27. Power of justices to administer oaths[, et cetera}. Fach of
the justices may, within the city of New York, administer an oath,
or take a deposition, or the acknowledgment or proof of the exe-
cution of a written instrument, and certify the same, in like
manner and with like authority and effect, as a justice of the
supreme court.

[Code, § 326, without change. ]

§ 28, Orders and warrants of attachment. In an action brought
in the court, an order cannot be made, or a warrant of attach-
1130 Rerort or Joryre Laeasiativn Commirrer

ment granted by an officer, other than a justice of the court; and
each provision of [this act, law or rules which empowers an
officer, other than a judge of the court in which an action 1s
brought, to make an order therein, must be construed as being
exclusive of an action brought in the city court.

[Code, § 327, without change of substance. ]

§ 29, When court may relieve from imprisonment. Where it
satisfactorily appears that a party, who is actually confined in
jail, by virtue of an order of arrest, or an execution against the
person, issued in an action brought in the court, is physically
unable to endure the confinement, and that he cannot procure
bail, or the necessary sureties in a bond for the jail liberties, as
the case requires, the court, or justice thereof, may, in its or his
discretion, by order, direct the sheriff to release him from cus-
tody. The sheriff must obey such an order. After such a release
from an execution against the person, another execution, against
the person of the judgment debtor, cannot be issued upon the
judgment; but the judgment creditor may enforce the judgment
against property as if the execution, from which the judgment
debtor was released, had been returned without his being taken.

[Code, § 3163, without change. ]

§ 30. References of questions arising upon motion. The court
may, of its own motion, or upon the application of either party,
without the consent of the other, by order, direct a reference, to
determine and report upon a question of fact, arising upon a
motion, in any stage of an action.

[Code, § 3172, without change. ]

§ 31, References of issues for trial. The court may, of its own
motion, or upon the application of either party, without the
consent of the other, direct a trial of the issues of. fact, by a
referee, where the trial will require the examination of a long
account, on either side, and will not require the decision of
difficult questions of law. In an action, triable by the court, with-
out a jury, a reference may be made, as prescribed in this section,
to decide the whole issue, or any of the issues; or to report the
referce’s finding, upon one or more specific questions of fact,
involved in the issue.
New York Crry Court Act 1131

[ 2. The provisions of section 1013 of the code of civil pro-
cedure are hereby made applicable to and binding upon the city
court of the city of New York.]

[Bracketed matter is Code, § 3160, subd. 2. The text of
Code, § 1013 has been inserted in place of the said subdivision. ]

§ 32. Decisions and findings of fact and conclusions of law. The
time within which the decision of the court upon a trial by the
court of an issue of fact or of law must be filed[[, in a case speci-
fied in section 1010 of this act,] is ten days after the cause is
finally submitted. The decision of the court [in a case specified
in section 1022 of this act,] upon the trial of the whole issues of
fact is sufficient if it directs the judgment to be entered there
upon; but, if so required by a party appealing, the justice by
whom the decision was made, must, within ten days after the
appeal is perfected, and notice thereof and of the requirement
is given to him, make, and file with the clerk, a special decision,
stating separately the facts found, and the conclusions of law.

[Code, § 3173, without change of substance. ]

§ 33, Sale of perishable property. Where perishable property
has been levied upon, by virtue of an execution or a warrant of
attachment, the court may, upon the application of the officer
making the levy, by order, direct the sale thereof, at such a time,
and upon such a notice, as it deems proper; and thereupon the
property must be sold accordingly.

[Code, § 3175, without change. ] ‘

§ 34, Destruction of records and papers. The justices of the
city court, or a majority of them, may, upon petition of the clerk
of such court, by order made at any term thereof, direct the clerk
of the court to destroy any records or papers deposited or filed in
his office which the justices of the court or a majority of them
conclude to be no longer necessary for any purpose whatsoever.

[Code, § 339-a, without change. ]
1132 Report or Jotwnt Leatstative Commirrrer

ARTICLE 4
PROVISIONS RELATING TO PRACTICE

Section 35. Terms of court and transaction of business.
36. Terms of court and designation thereof.
37. Execution of mandates without the city.
38. Direction and execution of mandates.
39. Time for service of notice.
40. Notice of trial and notes of issue.
41. Depositions.
42. Payment of money into court.
43, Non-aceeptance and justification of bail.
44, Proof necessary to obtain warrant of attachment.
45. Rules of court.

§ 35. Terms of court and transaction of business. The court is
always open for the transaction of any business, for which notice
is not required to be given to an adverse party. The justices of
the court, or a majority of them, from time to time must appoint,
and may alter, the times of holding special and trial terms of the
court. They must prescribe the duration of the terms; designate
the trial terms at which jurors are required to attend; and assign
the justice to preside and attend at each of the terms so appointed.
In case of the inability of a justice to preside or attend, another
justice may preside or attend in his place. Each trial and special
term must be held by one justice. Two or more special or trial
terms may be appointed to be held at the same time.

[Code, § 324, without change. ]

§ 36. Terms of court and designation thereof. Fach term so
appointed must be held at the city hall in the city of New York,
except that auxiliary or additional parts, for ‘the transaction of
any business specified in the appointment, may be held elsewhere
within the city of New York, as designated in the appointment.
An appointment must be published in two newspapers, published
in the city of New York, at least once in cach week, for three
successive weeks, before a term is held in pursuance thereof.

[Code, § 825, without change. ]
New York Crry Courr Act 1133

§ 37, Execution of mandates without the city. A mandate of
the court can be executed only within the city of New York,
except as follows:

1. An execution upon a judgment rendered therein, for a sum
exceeding twenty-five dollars, may be issued out of the court, tested
in the name of the chief justice thereof, to the sheriff of any
county, wherein the judgment has been duly docketed ;

2. A subpoena may be served within either of the counties of
Richmond, Kings, Queens, or Westchester;

3. A warrant to apprehend a witness for a failure to obey a
subpoena, may be executed by the sheriff of the city and county
of New York, or a marshal of that city, within either of those
counties ;

4. An order duly made, in an action or special proceeding
pending in the court, requiring the performance of an act by a
party thereto, or by an officer, may be served upon a person bound
to obey the order, and his obedience thereto may be required in
any part of the State;

5. An order to show cause, why a person should not be punished
for a contempt of the court, may be served by any person in any
part of the State;

6. A warrant to apprehend, and bring before the court, a person
charged with such a contempt, may be executed by the sheriff
of the city and county of New York, or a marshal of that city, in
any part of the State;

7%. The word “ city” as used m this section shall be construed
to mean and apply to the territory within the city of New York
as it existed and was constituted prior to the sixth day of June,
cightecn hundred and ninety-five.

[Code, § 338, without change. Subd. 7, inserted because of the
limitation in Greater New York charter, § 1345.]

§ 38. Direction and execution of mandates. In an action brought
in the court, an order of arrest, a warrant of attachment, an exe
cution, or a requisition to replevy a chattel, must be directed to
and executed by the sheriff. Any other mandate, which must
have been directed to and executed by the sheriff of the city and
county of New York, if it issued out of the supreme court, may.
where it issues out of the city court, be directed to and exeented
either by that sheriff, or a marshal of that city, named therein.
A marshal is entitled to the same fees as the sheriff upon a man-
1134 Revorr or Joint Lucistarive Commirrer

date directed to him, or upon the service of a summons; and cach
provision of law, relating to the execution of a mandate by the
sheriff, and the power and control of the court over the sheriff
executing the same, applies to the marshal. The return of a mar-
shal to such a mandate, or his certificate of the execution thereof,
or of the service of any paper served by him, has the same force
and effect, as the like return and certificate of a sheriff.

[Code, § 339, without change. ]

§ 39, Time for service of notice. The time for personal service
of certain notices, in an action brought in the court, is as follows:

1. Notice of justification of the sureties, in an undertaking
given by the plaintiff, as security for the defendant’s costs, not
more than two days;

2. Notice of an application for judgment [[in a case specified
in section 537 of this act;] upon the ground that a demurrer,
answer or reply ts frivolous; notice of a motion to strike out a
sham answer or a sham defense; [a pleading, in a case specified
in section 538-of this act ;]] notice of an application for judgment
upon the defendant’s default, or of the execution of a reference.
or writ of inquiry or of an assessment thereupon; [as prescribed
in section 1219 of this act;] not less than two days;

3. Notice of the justification of bail, not less than two, nor
more than ten days;

4. Notice of a motion, other than a motion specified in sub-
division second of this section, not less than four days; but the
court or a justice thereof may, upon an affidavit showing grounds
therefor, prescribe a shorter time, by an order to show cause;

5. Notice of trial of an issue of fact, or of an issue of law;
notice of any hearing, the time for serving which is not expressly
prescribed in either of the foregoing subdivisions of this section.
or elsewhere in this [title] act; not less than five davs;

6. Notice of taxation of costs, not less than two days; except
where all the attorneys, serving and served with the notice, reside
or have their offices in the city of New York, in which case, one
day’s notice is sufficient.

7. But this section does not apply where special provision has
been made for certain marine causes.

[Code, § 3161, without change of substance. ]
New York Crry Courr Act 1135

§ 40. Notice of trial and notes of issue. Notice of trial of au
issue triable at a term of the court may be given for any day of
the term. A note of issue must be filed at least two days before
the day, or the commencement of the term, for which the notice
of the trial is given; and it must, in addition to the matter
[specified in section 977 of this act,] required to be stated in a
note of issue in action in the supreme court state the day or the
term, for which the notice has been given. But this [and the
last] section [do] does not apply [to a case where special pro-
vision is otherwise made in article third of this title] where
special provision has been made for certain marine causes.

[Code, § 3162, without change of substance. ]

§ 41. Depositions. The application, to the court, [of article
second of title third of chapter ninth of this act, is] of the pro-
visions of law relating to depositions taken without the Slate for
use within the State are subject to the following qualifications:

1. The words, “the city and county of New York, or either
of the counties of Richmond, Kings, Queens, Bronx or West-
chester ’’, must be regarded as substituted, in place of the words,
“the State”, wherever those words are used [in that article, J
with respect to the locality of a witness ;

2. Interrogatories, framed, (puna? to that article,J can be
settled only by a justice of the court;

3. A commission, or order to take depositions, issued or
granted, [pursuant to that article,]] may be executed either within
or without the State.

[Code, § 3171, without change of substance. ]

§ 42. Payment of money into court. Money paid into the
court, pursuant to any provision of this act, must, unless the court
otherwise directs, be paid directly to the chamberlain of the city
of New York, to the credit of the cause in which it is paid.

[Code, § 3164, without change. ]

§ 43. Non-acceptance and justification of bail. The time for
taking certain proceedings, in an action brought in the court, is
as follows:

1. Service of notice of non-acceptance of bail, within five days
after the delivery, to the plaintifl’s attorney, of eortified copies of
1136 Rivorr or Jounr Lecisuarive ComMMIrrne

the order of arrest, return, and undertaking; [as prescribed in
section 577 of this act.J

2. Service of notice of justification of the bail, within five days
after service of the notice specified in subdivision first of this
section ;

3. Service of notice of exception to the sureties, in an under-
taking given by the plaintiff, as seenrity for the defendant’s costs,
within two days after service, upon the defendant’s attorney, of a
written notice of the filing thereof; and service of notice of the
justification of the same, or new sureties, within two days after
service of the notice of exception.

[Code, § 3168, without change. ]

§ 44, Proof necessary to obtain warrant of attachment. In
order to entitle the plaintiff to a warrant of attachment against
property, he must show by affidavit to the satisfaction of the
justice granting it, as follows:

1. That a sufficient cause of action exists against the defendant
to recover damages for one or more of the following causes:

a. Breach of contract, express or implied, other than a contract
to marry ;

b. Wrongful conversion of personal property ;

e. An injury to person or property, in consequence of negli-
gence, fraud or other wrongful act;

d, A wrongful act, neglect or default by which the decedent’s
death was caused, where the cause of action arose in this state
before or after the passage of this act, and the action is brought
by an executor or administrator against a natural person, who, or
a corporation which, would have been liable to an action in favor
of the decedent by reason thereof, if death had not ensued [as
prescribed by section 1902 of this act].

2. The amount of the damages claimed, which, if action is to
recover damages by breach of contract must be stated over and
above all counterclaims known to the plaintiff.

3. That the case is within one of the following subdivisions:

[1] «. That the defendant is a foreign corporation, or being a
natural person is not a resident of the State;

[2] >. That the defendant, being an adult and a resident of
the borough of Manhattan in the city of New York, has departed
from the State, with intent to defraud his creditors, or to avoid
service of the summons, or keeps himself concealed therein, with
New York Crry Courr Acr 1137

like intent; or that, after proper and diligent effort to ascertain
the place of the sojourn of such a resident adult defendant, the
same cannot be ascertained ;

[3] ¢. That the defendant, being an adult, has removed, or is
about to remove, property from the State, with intent to defraud
his creditors, or that he has assigned, disposed of, or secreted, or

is about to assign, dispose of, or secrete property, with the like
intent ;

[4] ¢@. That the defendant, being an adult and a resident of
that borough has been continuously without the United States
more than six months next before the granting of the warrant.
and has not made a designation of a person upon whom to serve
a summons in his behalf, as [prescribed in section 430 of this
act ;] provided by law ; or a designation so made no longer remains
in force.

The word “ city” as used in this section shall be construed to
mean and apply to the territory within the city of New York as
it existed and was constituted prior to the sixth day of June,
eighteen hundred and ninety-five.

[Code, § 3169, supplying in terms the reference to Code, § 636.
The last paragraph is inserted because of the limitation con-
tained in § 1345 of the Greater New York charter. ]

§ 45. Rules of court. The justices of the court, or a majority
of them, may, from time to time, establish rules of practice for
the court, not inconsistent with this act, or with the general rules
of practice, established as prescribed in section ninety-four of the
Judiciary Law. The latter govern the practice in the court, as
far as they are applicable thereto.

[Code, § 323, without change. ]

wie

ARTICLE 5
SPECIAL PROVISIONS FOR MARINE CAUSES

Section 46. Arrest in certain marine causes.
47. Contents of order of arrest.
48. Proceedings on arrest.
a 49, Bail or deposit before return. o
1138 Revorr or Jour Lxeistarive Commirrrer

Section 50. Further provisions relating to bail or deposit before
return.
51. Bail or deposit after return.
52. Confinement of defendant.
58. Return of proceedings.
54. Proceedings after return.
55. Trial.
56. Ordinary action for certain marine causes.

§ 46. Arrest in certain marine causes. In an action [specified
in subdivision second of section 317 of this act,] in favor of of
against a person, belonging to or on board of a vessel in the mer-
chant service, to recover damages for an assault, battery or false
imprisonment, commatted on board the vessel, upon the high seas,
or in a place without the United Sdates, the plaintiff may apply
for an order of arrest, to accompany the summons, in the form
and to the effect specified in the next section, but the plaintiff
may commence and conduct such an action in the ordinary man-
ner without applying for such order. If such an order is granted,
the proceedings in the action must be conducted as prescribed in
this article. The justices of the court, or a majority of them,
may, from time to time; by one or more general rules, attested
by the hands of the justices making the same, and filed with the
clerk, regulate the manner in which an application for such an
order may be made, and the cases in which an undertaking may
be dispensed with. Until regulations are so established, the
justice to whom the application is made, may, in his discretion,
require or dispense with an undertaking thereupon.

[Code, § 3177, without change. ]

§ 47, Contents of order of arrest. The order of arrest, granted
as prescribed in the last section, must require the sheriff to arrest
the defendant, and to bring him forthwith before the court, at
the chambers thereof; or if, when he is arrested, the court is not
in session at chambers, to hold him to bail, in a sum specified in
the order, for his personal attendance at the opening of the court.
on the next day thereafter, when it is in session at the chambers
thereof. The order must also direct that the defendant be sum-
moned to answer the complaint in the action forthwith. There-
upon the summons must conform to the order.

[ Code, § 3178, without change. ]
New York Crry Courr Acr 1139

§ 48. Proceedings on arrest. Tho sheriff, upon arresting the
defendant, by virtue of such an order, must, at the same time,
serve upon him the summons, and also a copy of the order of
arrest, and of the papers upon which it was granted. He must
forthwith bring the defendant before the court, at the chambers
thereof, if the court is then in session at chambers; otherwise,
unless bail is given, as prescribed in the next sectioh, he must
take the defendant to the jail of the city and county of New
York, for the confinement of prisoners in civil causes. The
keeper thereof must confine the defendant therein. On the next
day thereafter, when the court is in session at chambers, the
sheriff must take the defendant froni the jail, and bring him
before the court.

[Code, § 3179, without change. }

§ 49, Bail or deposit before return. The defendant, may give
bail, by delivering to the sheriff a written undertaking to the
plaintiff, in the sum specified in the order of arrest, executed
by one or more sureties, to the effect that the defendant will
attend in person at the opening of the court, at the chambers
thereof, on the next day thereafter, when it is there in session:
or he may deposit with the sheriff the sum specified in the order
of arrest. In either case, the sheriff must forthwith release him
from custody.

[Code, § 3180, without change. ]

§ 50. Further provisions relating to bail or deposit before return.
Where bail is given, as prescribed in the last section, the officer
taking the acknowledgment of the undertaking, must, if the
sheriff so requires, examine under oath, to a reasonable extent, the
persons offering to become bail, concerning their property and
their circumstances. The defendant may give bail, or make the
deposit, immediately upon his arrest, at any hour of the day or
night; and he must have reasonable opportunity to seck for and
to procure bail, before being committed to jail. Where a deposit
is made, the money deposited must, before the expiration of the
next day thereafter, not being Sunday or a public holiday, he
paid, by the sheriff, into court, to the credit of the action, [as
prescribed in section 3164 of this act.]

[Code, § 3181, without change. ]
1140 Revorr or Joint Lecisuarive Commirren

§ 51, Bail or deposit after return. At any time after the return
of the sheriff, and before final judgment, a justice of the court
may admit a defendant in custody to bail, or allow him to make
a deposit; and may direct his release, upon his giving bail or
making the deposit accordingly. The sum to be deposited, or
the sum specified in the undertaking of the bail, must be fixed,
and the sureties on the undertaking must be approved, by the
justice; who must be satisfied, by their examination, or by
other proof, respecting their sufficiency. The undertaking must
be to the effect that the defendant will, at all times, render him-
self amenable to any mandate which may be issued, to enforce a
final judgment against him in the action. [Article fourth of title
first of chapter seventh of this act, applies, where bail is given
as prescribed in this or the last section. ]

[Code, § 3182, without change. ]

§ 52, Confinement of defendant. Unless bail is given, or a
deposit is made, as prescribed in the last three sections, the
defendant must remain in the jail by virtue of the order of arrest,
until final judgment in the action; and, if the judgment is against
the defendant, until the return of an execution against property,
issued thereupon. But the court must direct him to be brought
into court, at the time of the trial; and it may, in its discretion,
direct him to be brought into court at any other time. In either
case, he must be taken from the jail, and brought into court
accordingly.

[Code, § 8183, without change. ]

§ 53, Return of proceedings. The sheriff, after serving the
summons and executing the order of arrest, must make a full
return of his proceedings thereupon, to the court at chambers.
The return must be made forthwith, unless the court is not then
in session at chambers; in which case, it must be made imme-
diately after the opening of the court, on the first day thereafter,
when it is there in session. If the defendant has given bail, the
undertaking of the bail must be returned, to be delivered to the
plaintiff when the court so directs.

[ Code, § 3184, without change. ]

§ 54, Proceedings after return. Unless both parties sooner
appear, the court must wait one hour after the return; or, if the
New York Crry Gourr Act 1141

defendant has giwen bail, one hour after the opening of the court.
As soon after the parties appear, or after the expiration of the
hour, as the business upon which the court is then engaged will
permit, the court must take up the cause. If the plaintiff
does not then appear, a judgment dismissing the complaint, with
costs, must be rendered. If the defendant does not then attend
in person, the plaintiff must then make his complaint, and the
defendant’s default must be entered. If the plaintiff appears
and the defendant attends in person, the pleadings must then be
made, and issue must be joined. The pleadings may be oral or
written; if they are oral, the clerk must enter the substance
thereof in the minutes. If either party desires a trial by a jury,
he must demand the same, at the time of the joinder of issue;
otherwise the issue must be tried by the court, without a jury.

ve ? *.
[Code, § 3185, without change. ]

§ 55, Trial. * Where a trial by jury is duly demanded, the court
at chambers must direct the issue to be tried, at a trial term, wpor.
such notice as it deems proper, or without notice; it may also direct
that the action have a preference upon the day calendar, either
generally or for a particular day; and it may give such direction
as it deems proper, with respect to filing a note of issue. Where
a trial by jury is not duly demanded, or where the defendant is
in default, the evidence must then, or at such subsequent time,
either at chambers or at a trial term or special term, as the court
at chambers appoints, be given; and thereupon final judgment
must be rendered. But the issue must be appointed to be tried,
within six days after the joinder thereof, unless both parties
assent to a longer time; or a trial by jury is demanded, and there
is no term of the court, at which it can be had, within that time.
The rial cannot be adjourned, without the consent of both
parties, beyond three calendar months from the joinder of issue.

[ Code, § 3186, without change. ]

§ 56. Ordinary action for certain marine causes. This [article]
act does not prevent the plaintiff from commencing, and con-
ducting in the ordinary manner, an action, for a cause specified
in subdivision second of section [817] twenty of this act,

[Code, § 3187, without change. ]
1142 Rerorr or Jormyr Lreaisuartve ComMirrre

ARTICLE 6
SUMMONS AND PLEADINGS

Section 57. Summons.
58. Service of pleadings.
59. Service of summons without the city or by pubh-
cation.
60. Counterclaims.

§ 57. Summons. The summons, in an action brought in the
court, must state that the time, within which the defendant must
serve a copy of his answer, is six days after the service thereof,
exclusive of the day of service; except in one of the following
cases:

1. A justice of the court may, upon satisfactory proof, by
affidavit, that either the plaintiff or the defendant’ resides without
the city of New York; or, where there are two or more plaintiffs,
or two or more defendants, that all the plaintiffs or all the defend-
ants reside without that city, direct, by an order, that the
defendant be summoned to answer within a shorter time, speci-
fied therein, not less than two days after the service of the sum-
mons, exclusive of the day of service; whereupon the summons
must correspond to the order. The order must be indorsed upon
or annexed to the summons; and a copy thereof must be delivered
with a copy of the summons. The justice may, in his discretion,
as a condition of granting the order, require the plaintiff to give
an undertaking, with one or more sureties, to the effect that the
plaintiff will pay any judgment which may be rendered against
him in the action, not exceeding a sum, specified in the under-
taking, which must be at least two hundred dollars;

2. Where an order, directing service of the summons without
the city of New York, or by publication, is granted, the summons
must state that the time, within which the defendant must serve
a copy of his answer, is ten days after service thereof, exclusive
of the day of service. If a summons, requiring the defendant to
answer within a shorter time, has been issued, as prescribed in
this section, before an order specified in this subdivision is
granted, the justice granting such an order may direct that the
summons be amended accordingly; and thereupon the summons
New Yorx Crry Courr Acr 11438

published, or served without that city, pursuant to the order,
must correctly state the time;

8. The word “ city” as used in this section shall be construcd
tg mean and apply to the territory within the city of New York
as uw existed and was constituted prior to the sixth day of Jane,
eaghteen. hundred and ninety-five.

: [Code, § 3165, without change. Subd. 3 inserted to supply the
limitation in Greater New York, charter 1, § 1845.]

§ 58, Service of pleadings. The time, within which a defendant
[in a case specified in section 479 of this act] must demand a
copy of the complaint, if a copy is not delivered at the time of
the delivery of a copy of the summons and the time within
which the plaintiff must serve the same, after a demand thereof,
[as prescribed in that section,] and the time, within which a
copy of a pleading, subsequent to the complaint, must be served,
atter the service of a copy of the preceding pleading, is the same
number of days, as stated in the summons, within which the
defendant is required to serve a copy of his answer, after service
of the summons. But, except as otherwise prescribed in section
fifty-four [3185] of this act, a defendant, arrested before answer,
has ten days after the arrest, within which to demand a copy of the
complaint or to serve a copy of his answer, as the case requires :
and judgment must be stayed accordingly.

[Code, § 3166, without change of substance. ]

§ 59. Service of summons without the city or by publication.
An order, directing the service of a summons, either without
the city of New York, or by publication, may be granted by the
court, or by a justice thereof; but only in a case, where a warrant
of attachment has been issued, as prescribed in [the last] section
forty-four and personal service of the summons cannot be made,
with due diligence, within that city. The plaintiff, when he
applies for such an order, must show by affidavit, to the satisfac-
tion of the court or justice, that the case is within this section.
Where an order is granted, as prescribed in this section, service of
the summons without that city may be made, as directed in the
order, either within or without the State. [Sections 440 to 445,
both inclusive, and sections 638, 707, and 708 of this act] The
provisions of law relating to the personal service of the summons
1144 Reporr or Joint Learstarive ComMMrirrer

on a defendant without the State, or by publication, in an action
m the supreme court in which a warrant of attachment has been
granted, including the enforcement and satisfaction of the
judgment, apply to the service or publication, pursuant to such
an order, and to the proceedings relating to the same, and subse-
quent thereto; substituting in such provisions the words, “ the
city of New York”, in place of the words, “the State”, where-
ever the latter words occur. If the defendant is a resident of
the city of New York, the order must also direct that a copy of
the summons, complaint, and order be left at his residence,
specifying it, with a person of suitable age and discretion, if,
upon reasonable application, admittance can be obtained, and
such a person found who will receive it; or, if admittance cannot
be so obtained, nor such a person found, by affixing the same to the
outer door of the residence so specified. The word “ city” as
used in this section shall be construed to mean and apply to the
territory within the city of New York as it existed and was
constituted prior to the sixth day of June, eighteen hundred and
ninety-five.

[Code, § 3170, without change of substance. The last sen-
tence inserted to supply the limitation in Greater New York
charter, § 1345.]

§ 60. Counterclaims. A counterclaim[[, specified in subdivision
second of section 501 of this act,] based on a contract existing
at the time of the commencement of the action cannot be inter-
posed, in an action brought in the court, unless it is of such a
nature, that the court has jurisdiction of an action founded
thereupon; except that, in an action brought by an executor or
administrator, any counterclaim may be interposed, which could
be interposed, in a like action, brought in the supreme court.
A counterclaim may be interposed, in an action brought in the
court, without respect to the amount thereof; and judgment
thereupon, in favor of the defendant, may be rendered for any
sum.

[Code, § 3174, without change of substance. ]
New York Crry Courr Act 1145

ARTICLE 7
JUDGMENTS

Section 61. Voluntary remission of part of damages and judg-
ment for residue.
62. Vacation of judgment.

§ 61, Voluntary remission of part of damages and judgment for
residue. A party to whom a stm is awarded, upon a trial, an
assessment of damages, or the execution of a reference or writ of

inquiry, may remit ary portion thereof, and take judgment a
the residue.

[Code, § 3176, without change. ]

§ 62. Vacation of judgment. Whenever judgment has been or
snall be entered in the city court of the city of New York in any
one or more of the following cases, to wit:

1. An action to foreclose or enforce a lien, for a sum exceeding
two thousand dollars, exclusive of interest, upon one or more
chattels ;

2. An action wherein the complaint demands judgment for a
sum of money only, and the judgment is in favor of the plaintiff,
and exceeds two thousand dollars, exclusive of interest and costs
ag taxed ; except where the action is brought upon a bond or under-
taking given in an action or special proceeding in the same court
or before a justice thereof; or to recover damages for a breach of
promise of marriage; or where it is a marine cause, as that expres
sion is defined in section [817] twenty of this [code.] act;

3. An action to recover one or more chattels, and the judgment
is in favor of the plaintiff for a chattel or chattels, the aggregate
value of which exceeds two thousand dollars;

Any party to such action, at any time after the entry of such
judgment, may apply to the said city court to have such judgment
vacated, and thereupon the said city court may in its discretion
vacate such judgment. Any case, wherein a judgment has been
so vacated, may be removed to the supreme court in the first judi-
cial district, as provided in section [319a] twenty-three.

[Code, § 319-b, without change. Enacted in view of 207 N. }
290. See note to § 18.]
1146 Rivorr ov Joint Lecistarive CoMMITTEE

ARTICLE 8
COSTS AND FEES

Section 68. Costs upon adjournment of trial.
64. Term fee allowed as costs.
°65. Residence as affecting security for costs.
66. Exception of certain practice as to security for costs.
67. Fees of clerk.

§ 63; Costs upon adjournment of trial. Where an application is
made to a court or a referee, to adjourn a trial, the payment
to the adverse party of a sum [not exceeding ten dollars, or, in the
city court of the city of New York, a sum] not exceeding five
dollars, besides the fees of his witnesses, and other taxable dis-
bursements, already made or incurred, which are rendered inef-
fectual by the adjournment, may be required, as a condition of
granting the adjournment.

[Code, § 3255, so far as applicable to the city court. ]

§ 64, Term fee allowed as costs. [For one term of] Costs
awarded to either party.in an action in the city court of the city
of New York shall include the swm of ten dollars for one term at
which the case is necessarily on the calendar[[, and for each trial
term or special term, of the supreme court, or a county court, not
exceeding five, at which the cause is necessarily on the calendar,
excluding the term at which it is tried, or otherwise finally dis-
posed of, ten dollars].

[ Code, § 3251, last paragraph of subdivision 3, without change
of substance. Remainder of section is covered under “ Costs ” in
Civil Practice Act.]

§ 65. Residence as affecting security for costs. A plaintiff, in
an action brought in the court, who has an office for the regular
transaction of business in person, within the city of New York,
is deemed a resident of that city, within the meaning of [sections
3268 and 3269 of this act.] provisions of law authorizing a
defendant im a court of record to require security for costs.

[ Code, § 3160, pt., without change of substance. ]
New Yor Crry Cournr Acr 1147

§ 66. Exception of certain practice as to security for costs. The
provisions of law authorizing a defendant in a court of record to
require security for costs [Sections 3268 and 3269 of this act] do
not apply to an action in the court, [prosecuted as prescribed in
article third of this title] in favor of or against a person, belong-
ing to or on board of @ vessel in the merchant service, to recover
damages for an assault, battery or false imprisonment, committed
on board the vessel, upon the high seas, or in a place within the
United States where an order of arrest is granted to accompany the
summons, or where an undertaking has heen given as prescribed in
section [8165] fifty-seven of this act.

[Code, § 3160, pt., without change of substance. ]

§ 67, Fees of clerk. The clerk of the city court of the city of
New York is entitled to receive for the use of the city of New
York, for the services performed by him the following fees and
none other: For filing a note of issue for the general or equity
calendar, three dollars; for entering fina] judgment in an action,
including the filing of the judgment roll, fifty cents; and ten cents
in addition for each folio exceeding ten, contained in said judg-
ment. For filing and entering an order directing the change of
name, one dollar for each name so changed. For entering any
other order or an interlocutory judgment, ten cents for each folio
exceeding five. For a certified or other copy of an order, record,
or other paper entered or filed in his office, five eents for each
folio. For filing and entering a certificate of satisfaction of a
judgment twenty-five cents and for certifying a copy thereof
twelve cents. For filing and entering an assignment of a judg-
ment twenty-five cents, and for certifying a copy thereof twelve
cents. For filing and entering a release of a judgment twenty.
five cents, and for certifying a copy thereof twelve cents. For
certifying a transcript of the docket of a judgment twelve cents.
For an extract of the minutes of a trial, ten cents. For attesting
the correctness of the copy of any paper or record on file in his
office, ten cents for each folio. For a certificate other than herein
described, twenty-five cents. For making and certifying a search
for any paper or record, one dollar. For comparing and certifying
the printed papers on appeal from an order or judgment takeit as
prescribed in [article fourth of title first of chapter twenty of]
this act, one cent per folio thereof. But where the attorneys for all
the parties interested, other than parties in default, or against
1148 Repvorr or Jour Leaistavive ComMirrer

whom a judgment or a final order has been taken, and is not
appealed from, stipulate in writing that a paper is a copy of any
paper whereof a certified copy is required by any provisions of this
act, the stipulation takes the place of a certificate, as to the parties
0) stipulating, and the clerk is not required to certify the same, or
entitled to any fees therefor. And the paper so proved by stipu-
lation shall be received by the clerks of all the courts and by the
courts and shall be used or filed with the same force and effect as
if certified by a clerk of the court. ‘

[Code, § 3164a, without change of substance. ]

ARTICLE 9
APPEALS

Section 68. Appeal from final judgment to supreme court.

69. Appeal from interlocutory judgment to supreme
court.

70. Appeal from order made at special or trial term.

71. Appeal from order made by judge out of caurt.

72. Review of discretionary power on appeal to supreme
court.

73. Time to appeal from interlocutory judgment or order.

74, Appeal to appellate division.

75. Time for appeal to appellate division.

76. Proceedings in appellate court.

77. Certification and stipulation of papers on appeal.

78. Practice and procedure on appeals.

§ 68. Appeal from final judgment to supreme court. An appeal
may be taken to the [appellate division of the] supreme court
from a final judgment rendered [in the supreme court] in the
city court of the city of New York as follows:

1. Where the judgment was rendered upon a trial by a referee,
or by the court without a jury,'the appeal may be taken upon
questions of law, or upon the facts, or upon both;

2. When the judgment was rendered upon the verdict of a jury,
the appeal may be taken upon questions of law, or upon the facts,
or upon both.

[Code, § 1346; made applicable by Code, § 3188.]
New Yorx Crry Courr Act 1149

§ 69. Appeal from interlocutory judgment to supreme court. An

appeal may [also] be taken to the [appellate division of the]
supreme court, from an interlocutory judgment rendered at a
special term or trial term of the [supreme] court, or entered upon
the report of a referee.

[Code, § 1349; made applicable by Code, §§ 3188, 3189. ]

§ 70, Appeal from order made at special or trial term. An appeal
may be taken to the [appellate division of the] supreme court
from an order made [prior to the first day of January, 1896,] in
an action upon notice, at a special term or a trial term of [a
superior city court, or of the supreme court, or at a term of the
cireuit court, and from an order made at a special term or trial
term of the supreme court, after said day,] the city court of the
city of New York or at chambers in either of the following cases:

1. Where the order grants, refuses, continues, or modifies a pro-
visional remedy; or settles, or grants, or refuses an application to
resettle a case on appeal or a bill of exceptions;

2. Where it grants or refuses a new trial; except that where
specific questions of fact, arising upon the issues, in an action
triable by the court, have been tried by a jury, pursuant to an
order for that purpose, [as prescribed in section 971 of this act,]
an appeal cannot be taken from an order, granting or refusing a
new trial, upon the merits;

3. Where it involves some part of the merits;

4, Where it affects a substantial right;

5. Where, in effect, it determines the action, and prevents a
judgment, from which an appeal might be taken ;

6. Where it determines a statutory provision of the State to be
unconstitutional; and the determination appears from the reasons
given for the decision thereupon, or is necessarily implied in the
decision.

An order, made upon a summary application, after judgment,
is deemed to have been made, in the action, within the meaning of
this section.

[Code, § 1347; made applicable by Code, § 3189. ]

§ 71, Appeal from order made by judge out of court. An appeal

may [also] be taken to the [appellate division of the] supreme
court, from an order, made in an action, upon notice, by a judge
1150 Reporr or Jomvr Leaisitattve ComMirtrr

[or justice, ] out of court, in a case where an appeal might have
been taken, as prescribed in the last section, if the order had been
made, by ihe court. [The appellate division shall have power to
vacate or modify, without notice, or upon such notice as it shall
deem proper, any order in an action or special proceeding made
by a justice of the supreme court or by the court without notice
to the adverse party; it may grant a stay of proceedings upon any
judgment or order of the supreme court from which an appeal
is pending, and may grant any order or provisional remedy which
has been applied for without notice to the adverse party, and
refused by the supreme court or a justice thereof. ]

[Code, § 1348; made applicable by Code, § 3189.]

§ 72. Review of discretionary power on appeal to supreme court.
[An appeal to the supreme court may also be taken from the
interlocutory judgment rendered, or an order made at chambers,
or at a special term or a trial term of said city court, or from an
order made by a judge thereof out of court, in a case where an
appeal may be taken to the appellate division of the supreme court
from an interlocutory judgment rendered, or an order made, in
like manner, as prescribed in sections 1347, 1848, 1349 of this
act] Upon [such] an appeal from the city court of the city of
New York, the supreme court shall have full power to review
any exercise of discretion by the court or judge below.

[Code, § 3189; omitting reference to §§ 1347, 1848, 1349,
which are included as §§ 68, 69 and 70, supra. ]

§ 73. Time to appeal from interlocutory judgment or order. An
appeal, [authorized by cither of the last two sections,] to the
supreme court must be taken within ten days after service of a
copy of the judgment or order appealed from, and a written
notice of the date of the entry thereof. [In every other respect,
titles first, third and fourth of chapter twelfth of this act, so
far as the same are applicable thereto, apply to and govern an
appeal, taken as prescribed in either of the last two sections.]

[Code, § 3190, the latter part of the section is covered by
§ 78, post. |

§ 74. Appeal to appellate division. An appeal to the appellate
division of the supreme court in the first judicial department
New Yorr Crry Courr Acr 1151

may be taken from the judgment or order of the appellate term
of the supreme court entered upon the determination of an appeal
from a judgment or order of the city court taken as prescribed
in [sections 3188 and 3189 of] this act, provided such appeal to
the appellate division be allowed by order made at the appellate
term at which [such] the appeal was determined or at the term
next after judgment is entered upon such determination or by a
justice of the appellate division of the first judicial department
and provided further that, where such appeal is from an order
granting a new trial upon a case or exceptions, the appellant must
with his application for leave to appeal, file an assent on his
part that, if the order is affirmed, judgment absolute may be
rendered against him.

i[Code, § 3191, without change of substance, amended to
clarify its provisions. |

§ 75, Time for appeal to appellate division. An appeal, [author-
ized by section 3191 of this act,] to the appellate division
allowed pursuant to the preceding section must be taken within
twenty days after the service of a copy of the order allowing such
appeal and a written notice of the date of the entry thereof.

[Code, § 3193, without change of substance. ]

§ 76, Proceedings in appellate court. The judgment or order of
the appellate court must be remitted to the court below, to be
enforced according to law. Upon an appeal from an order
granting a new trial, on a case or exceptions, if the appellate
court determines that no error was committed in granting the
new trial, it must render judgment absolute upon the right of
the appellant; and thereupon an assessment of damages, or any
other proceedings, requisite to render the judgment effectual,
may be had in the city court of the city of New York.

[Code, § 3194, without change. ]

§ 77. Certification and stipulation of papers on appeal. Where,
on an appeal from a judgment or order, [taken as prescribed in
article fourth of title first of chapter twenty of this act,] a party
shall present to the clerk a printed copy of the judgment roll or
order appealed from, it shall be the duty of the clerk, as required,
to compare and certify the same, for which service the clerk must
1152 Report or Joint LeaisnativeE ComMirrreE

receive, for the use of the city of New York a fee at the rate of
one cent per folio. Where the attorneys for all the parties inter-
ested, other than parties in default, or against whom a judgment
or a final order has been taken, and ig not appealed from, stipulate
in writing that a paper is a copy of any paper whereof a certified
copy is required by any provisions of this act, the stipulation takes
the place of a certificate, as to the parties so stipulating, and the
clerk is not required to certify the same, or entitled to any fees
therefor. And the paper so proved by stipulation shall be received
by the clerks of all the courts and by the courts and shall be used
or filed with the same force and effect as if certified by a clerk
of the court.

[ Code, § 3194a, without change. ]

§ 78, Practice and procedure on appeals. Except as otherwise
provided in this article, the provisions of law regulating practice
and procedure on appeals, including appeals from the supreme
court to the appellate division and from inferior courts of record
to the supreme court, shall apply to appeals under this article.

[See Code, § 3190, last sentence, § 3192. ]

ARTICLE 10

APPLICATION OF SUPREME COURT PRACTICE;
EXCEPTIONS

Section 79. Certain practice not to apply.
80. Conformity to supreme court practice,

§ 79. Certain practice not to apply. Except as otherwise pro-
vided in this act, the provisions of law governing the practice and
procedure in the following matters do not apply to an action or
special proceeding in the city court of the city of New York, or
before a justice thereof or to any proceeding therein:

1. The cases in which an order directing the service of a sum-
mons upon a defendant by publication may be made;

2. The granting of an injunction order in a case where the
right of the injunction depends upon the nature of the action;

3. Security upon the granting of an injunction order to stay
proceedings in an action;
New York Crry Courr Acr 1153

4 The facts to be shown by affidavit to the satisfaction of the
Justice granting a warrant of attachment.
5. Directing references and appointing referees.

[See Code, § 3160, part. This section expressly provides that
sections £38, 603, 611-619, 636, 827 and 1015 of the code of
civil procedure shall not apply to the city court. ]

§ 80. Conformity to supreme court practice. Except as in this
act or otherwise specially provided the practice, pleadings, forms
and procedure in the city court of New York shall conform, as
nearly as may be, to the practice, pleadings, forms and procedure
existing at the time in like causes in the supreme court, any statu-
tory limitations, heretofore enacted, to the contrary thereof not-
withstanding ; but this act shall not be held to increase or diminish
the jurisdiction of the city court of the city of New York as
existing immediately prior to the time this act takes effect.

[See Code, § 3159.]

ARTICLE 11
LAWS REPEALED; WHEN TO TAKE EFFECT .

Section 81. Laws repealed.
82. When to take effect.

§ 81, Laws repealed. The sections of the code of civil procedure
specified in the schedule hereto annexed, and all acts amendatory
thereof or supplemental thereto in force when this act takes effect,
are hereby repealed. When two numbers in such schedule are
united by a hyphen both such numbers are included as well as all

intermediate numbers.
§ 82. When to take effect. This act shall take effect April fif-

teenth, nineteen hundred and twenty.

Scuepute or Laws REPEALED.

Code of civil procedure, §§ 315-819, 319-a, 319-b, 320-
3338, 385-339, 339-a, 3159-8164, 3164a, 3165, 3166, 3168-
3194, 3194a.

37
CIVIL RIGHTS LAW AMENDMENTS

[1155]
CIVIL RIGHTS LAW AMENDMENTS

AN ACT to amend the civil rights law, generally.

The People of the State of New York, represented in Senate
and Assembly, do enact as follows:

Section 1. Section tw enty-two of chapter fourteen of the laws of
nineteen hundred and nine, entitled “An act relating to civil
rights, constituting’ dhapter six of the consolidated ‘Tews, ” is
hereby amended to read as follows:

§ 292. Privilege of officers and prisoner from arrest while passing
through another county. A prisoner conveyed to jail through
another county by a sheriff or other officer pursuant to law [section
one hundred and eighteen of the code of civil procedure], or the
officer having him in custody, is not liable to arrest in any civil
action or special proceeding, while passing through another countv.

[It is proposed to incorporate in the prison law § 118 of the
code of civil procedure referred to in § 22. The reference in the
latter section is therefore made general. ]

§ 2. Such chapter is hereby amended by adding thereto two
new articles, to be articles six and seven, respectively, to read as
follows:

ARTICLE 6
CHANGE OF NAME

Section 60. Petition for change of name.
61. Contents.
62. Notice.
63. Order.
64. Effect.

§ 60, Petition for change of name. A petition for leave to assume
another name may be made by a resident of the state to the county
court of the county in which he resides, or, if he resides in the

[1157]
1158 Reporr or Joint Leaistarive ComMiIrrer

city of New York, cither to the supreme court, or to the city court
of New York. The petition of an infant shall be made by his
general guardian, or by the guardian of his person, or by his next
friend.

[Code, § 2410, without change. ]

§ 61. Contents. The petition must be in writing, signed by the
petitioner and verified in like manner as a pleading in a court of
record, and must specify the grounds of the application, the name,
age and residence of the individual whose name is proposed to be
changed and the name which he proposes to assume.

[Code, § 2412, without change. ]

§ 62. Notice. If the petition be to change the name of an infant,
and is made by the infant’s next friend, notice of the time and
place when and where the petition will be presented must be
served upon the father, or if he is dead or cannot be found, upon
the mother, or if both are dead or cannot be found, upon the gen-
eral guardian or guardian of the person of the infant, in like
manner as a notice of a motion upon an attorney in an action,
unless it appears to the satisfaction of the court that the infant
has no father or mother, or that both reside without the state or
cannot be found, and that he has no guardian residing within this
state, in which case the court may dispense with notice or require
notice to be given to such persons and in such manner as the court
thinks proper.

[Code, § 2418, without change. ]

§ 63. Order. If the court to which the petition is presented is
satisfied thereby, or by the affidavit and certificate presented
therewith, that the petition is true, and that there is no reasonable
objection to the change of name proposed, and if the petition be
to change the name of an infant, that the interests of the infant
will be substantially promoted by the change, the court shall make
an order authorizing the petitioner to assume the name proposed
on a day specified therein, not less than thirty days after the
entry of the order. The order shall be directed to be entered and
the papers on which it was granted to be filed within ten days
thereafter in the clerk’s office of the county in which the petitioner
resides if he be an individual, or in the office of the clerk of the
Crvit Rigurs Law — AMENDMENTS 1159

city court of New York if the.order be made by that court. Such
order shall also direct the publication, within ten days after the
entry thereof of a copy thereof in a designated newspaper, in the
county in which the order is directed to be entered, at least once.

[Code, § 2414, without change. ]

§ 64. Effect. If the order shall be fully complied with, and
within forty days after the making of the order, an affidavit of the
publication thereof shall be filed and recorded in the office in which
the order is entered, and in each office in which certified copies
thereof are required to be filed, if any, the petitioner shall, on and
after the day specified for that purpose in the order, be known by
the name which is thereby authorized to be assumed, and by no
other name.

[Code, § 2415, without change.]

ARTICLE 7
MISCELLANEOUS RIGHTS AND IMMUNITIES

Section 70. Vexatious suits.
71. Damages in action for suing in name of another.
72. Term of imprisonment of civil prisoner.

§ 70. Vexatious suits. If a person vexatiously or maliciously,
in the name of another but without the latter’s consent, or in the
name of an unknown person, commences or continues, or causes
to be commenced or continued, an action or special proceeding, in
a court, of record or not of record, or a special proceeding before
a judge or a justice of the peace; or takes, or causes to be taken,
any proceeding, in the course of an action or special proceeding
in such a court, or before such an officer, either before or after
judgment or other final determination; am action to recover dam-
ages therefor may be maintained against him by the adverse
party to the action or special proceeding; and a like action may
be maintained by the person, if any, whose name was thus used.
He is also guilty of a misdemeanor, punishable by imprisonment
not exceeding six months.

[Code, § 1900, without change. ]
1160 Reporr or Joruvr Leaistarive COMMITTEE
1 1 Ry

§ Ti. Damages in action for suing in name of another. In an
action, brought by the adverse party, -as preserihed in the last
scetion, the plaintiff, if he recovers final judgment, is entitled to
recover treble damages. Tn an action, brought by the person
whose name was used, as preseribed i in the lash section, the plain-
tiff is entitled to recover his actual damages, and two hundred
and fifty dollars in addition thereto.

[Code, 8 1901, without change. ]

§ 72. Term of imprisonment of civil prisoner. No person shall
be imprisoned within the prison walls of any jail for a longer
period than three months under an execution or any other man-
date against the person to enforce the recovery of a sum of money
less than five hundred dollars in amount or under a commitment
upon a fine for contempt of court in the nonpayment of alimony
or counsel fees in a divorce case where the amount so to be paid
is less than the sum of five hundred dollars; and where the amount
in either of said cases is five hundred dollars or over, such impris-
onment shall not continue for a longer period than six months.
It shall be the duty of the sheriff in whose custody any such person
is held to discharge such person at the expiration of said respective
periods without any formal application being made therefor.
No person shall be imprisoned within the jail liberties of any jail
for a longer period than six months upon an execution or other
mandate against the person, and no action shall be commenced
against the sheriff upon a bond given for the jail liberties by such
person [to secure the benefit ‘of such liberties, as provided in
articles fourth and fifth of this title for an escape made after the
expiration of six months’ imprisonment as aforesaid]. Notwith-
standing such a discharge in either of the above cases, the judgment
creditor in the execution, or the person at whose instance the said
mandate was issued, has fhe same remedy against the property of
the person iipuicoued which he had before such execution or man-
date was issued; but the prisoner shall not be again. imprisoned
upon a like process issued in the same action or arrested in any
action upon any judgment under which the same may have been
granted. Except in a ease hercinbefore specified nothing in this
section shall effect a commitment for contempt of court.

[ Code, § 111, without change of substance. ]
Crvit. Riantrs Law — AMENDMENTS 1161

§ 8. Article six and sections sixty and sixty-one of such chap-
ter are hereby renumbered article eight and sections eighty and
eighty-one thereof, respectively.

§ 4. Sections one hundred and eleven, nineteen hundred, nine-
teen hundred and one, twenty-four hundred and ten, twenty-four
hundred and twelve, twenty-four hundred and thirteen, twenty-
four hundred and fourteen and twenty-four hundred and fifteen
of the code of civil procedure and all acts amendatory thereof are
hereby repealed.

§ 5. This act shall take effect April fifteenth, nineteen hundred
and twenty.
CONDEMNATION LAW

[1163]
CHAPTER 71 OF THE CONSOLIDATED LAWS
CONDEMNATION LAW

AN ACT in relation to the acquisition, by condemnation, of real
property for a public use, constituting chapter seventy-one of
the consolidated laws,

The People of the State of New York, represented in Senate
and Assembly, do enact as follows:

CHAPTER 71 OF THE CONSOLIDATED LAWS
CONDEMNATION LAW

Article 1. Short title; definitions; application (§§ 1-3).
2. Condemnation proceedings (§§ 10-33).
3. Laws repealed; when to take effect ($§ 40, 41).

ARTICLE 1
SHORT TITLE; DEFINITIONS; APPLICATION

Section 1. Short title.
2. Definitions.
3. Application of this chapter.

§ 1. Short title. This [title] chapter shall be known as the
condemnation law.

[§ 3357, code of civil procedure, without change of substance.]

§ 2. Definitions. The term “ person,” when used herein, includes
a natural person and also a corporation, joint-stock association,
the state and a political division thereof, and any commission,
board, board of managers or trustees in charge or having contre!
of any of the charitable or other institutions of the state; the term
“real property,” any right, interest or easement therein or appur-

" 11165]
1166 Repvorr or Jormvr Legistative Commirrer

tenances thereto; and the term “owner,” all persons having any
estate, interest, or easement in the property to be taken, or any
lien, charge, or incumbranee thereon, The person instituting the
proceedings shall be termed the plaintiff; and the person against
whom the proceeding ¥s brought, the defendant.

[§ 3358, code of civil procedure, without change. ]

§ 3. Application of this chapter. Whenever any person is author-
ized to acquire title to real property, for a public use by con-
demnation, the proceeding for that purpose shall be taken in the
manner prescribed in this chapter [title].

[§ 8359, code of civil procedure, without change of sub-
stance. |

ARTICLE 2
CONDEMNATION PROCEEDINGS

Section 10. Petition; what to contain.

11. Notice to be annexed to petition; service.

12. Service of petition and notice.

13. Appearance of infant, idiot, lunatic or habitual
drunkard.

14. Appearance.

15. Answer; what to contain.

16. Verification of petition or answer.

17. Trial of issues.

18. Mistakes, omissions, defects and irregularities.

19. Judgment; costs when to defendant; commissioners.

20. Duties and powers of commissioners. :

21. Confirmation or setting aside report; deposit when
payable.

22. Offer to purchase; costs; additional allowance.

23. Judgment, how enforced; delivery possession of
premises; when writ of assistance to issue.

24. Abandonment and discontinuance of proceeding.

25. Appeal from final orders; stay.

26. Appeal from judgment by plaintiff.

27. When appellate division may direct a new appraisal.

28. Conflicting claimants.

29. Party in possession may stay on giving security.
ConpDEMNATION Law 1167

Section 30. Temporary possession pending proceedings.
31. Notice of pendency of action to be filed.
32. Power of court to make necessary orders.
33. Limitations and exemptions.

§ 10. Petition; what to contain. The proceeding shall be insti-
tuted by the presentation of a petition by the plaintiff to the
supreme court, setting forth the following facts:

1. His name, place of residence, and the business in which
engaged; if a corporation or joint-stock association, whether for-
eign or domestic, its principal place of business within the state,
the names and places of residence of its principal officers, and’ of
its directors, trustees or board of managers, as the case may be,
and the object or purpose of its incorporation or association; if a
political division of the state, the names and places of residence
of its principal officers; and if the state, or any commission or
board of managers or trustees in charge or having control of any
of the charitable or other institutions of the state. the name, place
of residence of the officer acting in its or their behalf in the pro-
ceedings.

2. A specific description of the property to be condemned, and
its location, by metes and bounds, with reasonable certainty.

3. The public use for which the property is required and a con-
cise statement of the facts showing the necessity of its acquisition
for such use.

4. The names and places of residence of the owners of the prop-
erty; if an infant, the name and place of residence of his general
guardian, if he has one; if not, the name and place of residence
of the person with whom he resides; if a lunatic, idiot, or habitual
drunkard, the name and place of residence of his committee or
trustee, if he has one; if not, the name and place of residence of
the person with whom he resides. If a non-resident, having an
agent or attorney residing in the state authorized to contract for
the sale of the property, the name and place of residence of such
agent or attorney; if the name or place of residence of any owner
cannot after diligent inquiry he ascertained, it may be so stated
with a specific statement of the extent of the inquiry which has
been made.

5. That the plaintiff has been unable to agree with the owner of
the property for its purchase, and the reason of such inability.

6. The value of the property to be condemned.
1168 Ruevorr ov Jour Luaisuavive Commirrer

7. A statement that it is the intention of the plaintiff, in good
faith, to complete the work or improvement, for which the prop-
erty is to be condemned; and that all the preliminary steps
required by law have been taken to entitle him to institute the
proceeding.

8. A demand for relief, that it may be adjudged that the public
use requires the condemnation of the real property described, and
that the plaintiff is entitled to take and hold such property for
the public use specified, upon making compensation therefor, and
that commissioners of appraisal be appointed to ascertain the com-
pensation to be made to the owners for the property so taken. —

[§ 3360 of the code of civil procedure, without change. ]

§ 11. Notice to be annexed to petition; service. There must be
annexed to the petition a notice of the time and place at which
it. will be presented to a special term of the supreme court, held
in the judicial district where the property or some portion of it
is situated, and a copy of the petition and notice must be served
upon all the owners of the property at least eight days prior to
its presentation.

[§ 3361 of the code of civil procedure, without change. |

§ 12. Service of petition and notice. Service of the petition and
notice must be made in the same manner as the service of a sum-
mons in an action in the supreme court is required to be made,
and all the provisions of [articles one and two of title one of
chapter five of this act] article twenty-five of the civil practice act
which relate to the service of a summons, either personally or in
any other way, and the mode of proving service, shall apply to the
service of the petition and notice. If the détendant has an agent
or attorney residing in this state, authorized to contract for the
sale of the real property described in the petition, service upon
such agent or attorney will be sufficient service upon such defend-
ant. In ease the defendant is an infant of the age of fourteen
years or upwards, a copy of the petition and notice shall also be
served upon his general guardian, if he has one; if not, upon the
person with whom he resides.

L$ 3862, code of civil procedure, without change. ]
Conpemnation Law 1169

§ 13. Appearance of infant, idiot, lunatic or habitual drunkard.
Tf a defendant is an infant, idiot, lunatic or habitual drunkard.
it shall be the duty of his general guardian, committee or trustee.
if he has one, to appear for him upon the presentation of the
petition and attend to his interests, and in case he has none, or
in case his general guardian, committee or trustee fails to appear
for him, the court shall, upon the presentation of the petition and
notice, with proof of seizure, without further notice, appoint a
guardian ad litem for such defendant, whose duty it shall be to
‘appear for him and attend to his interests in the proceeding, and,
if deemed necessary to protect his rights, the court may require
a general guardian, committee or trustee, or a guardian ad litem
to give security in such sum and with such sureties as the court
may approve. If a service other than personal has been made
upon any defendant, and he does not appear upon the presentation
of the petition, the court shall appoint some competent attorney
to appear for him and attend to his interests in the proceeding.

3363, code of civil procedure, without change.
Pp g

§ 14. Appearance. The provisions of law and of the rules and
practice of the court, relating to the appearance of parties in per-
son or by attorney in actions in the supreme court, shall apply to
the proceeding from and after the service of the petition, and
all subsequent orders, notices and papers may be served upon the
attorney appearing and upon a guardian ad litem in the same
manner and with the same effect as the service of papers in an
action in the supreme court may be made.

[§ 3364, code of civil procedure, without change. |

§ 15, Answer; what to contain. Upon presentation of the peti-
tion and notice with proof of service thereof, an owner of the
property may appear and interpose an answer, which must con-
tain a general or specific denial of each material allegation of the
petition controverted by him, or of any knowledge or information
thereof sufficient to form a belief, or a statement of new matter
constituting a defence to the proceeding.

ES 3365, code of civil procedure, without change. |
§ 16. Verification of petition or answer. A petition or answer

[this act] relating to the form and contents of the verification of
must be verified, and the provisions of the civil practice act
1170 Rervorr or Jornr Leeistative ComMirrer

pleadings in courts of record, and the persons by whom it may
be made, shall apply to the verification.

[§ 3866, code of civil procedure, without change. ]

§ 17, Trial of issues. The court shall try any issue raised by
the petition and answer at such time and place as it may direct,
or it may order the samme to be referred to a referee to hear and
determine, and upon such trial the court or referee shall file a
decision in writing, or deliver the same to the attorney for the
prevailing party, within twenty days after the final submission
of thé proofs and allegations of the parties, and the provisions
of [this act] the civil practice act relating to the form and con-
tents of decisions upon the trial of issues of fact by the court or
a referee, and to making and filing exceptions thereto, and the
making and settlement of a case for the review thereof upon
appeal, and to the proceedings which may be had in case such
decision is not filed or delivered within the time herein required,
and to the powers of the court and referee upon such trial, shall
be applicable to a trial and decision under [the title] this chapter.

[§ 8367, code of civil procedure, without change of substance. |

§ 18. Mistakes, omissions, defects and irregularities. The pro-
visions of article nine of the civil practice act [title one of
chapter eight of this act] shall also apply to proceedings had
under this chapter [title].

[$ 3368, code of civil procedure, without change of substance. ]

§ 19. Judgment; costs when to defendant; commissioners. J udg-
ment shall be entered pursuant to the direction of the court or
referee in the decision filed. If in favor of the defendant, the
petition shall be dismissed with costs to be taxed by the clerk,
at the same rates as are allowed, of course, to a defendant pre-
vailing in an action in the supreme court, including the allowances
for proceedings before and after notice of trial. If the decision is
in favor of the plaintiff, or if no answer has been interposed and
it appears from the petition that he is entitled to the relief
demanded, judgment shall be entered, adjudging that the condem-
nation of the real property described is necessary for the public
use, and that the plaintiff is entitled to take and hold the property
for the public use specified, upon making compensation therefor
ConpEMNATION LAW 1171

and the court shall thereupon appoint three disinterested and
conipetent frecholders, residents of the judicial district embracing
the county where the real property or some part of it is situated,
or of some county adjoining such judicial district, commissioners
to ascertain the compensation to be made to the owners for the
property to be taken for the public use specified, and fix the time
and place for the first meeting of the commissioners. Provided,
however, that in any such proceeding instituted within the first
or second judicial district, such commissioners shall be residerts
of the county where the real property, or some part of it, is sit-
uated, or of some adjoining county. If a trial has been had, at
least eight days’ notice of such appointment must be given to all
the defendants who have appeared. The parties may waive, in
writing, the provisions of this section as to the residence of the
commissioners, and in that case they may be residents of any
county in the state. Where owners of separate properties are
joined in the same proceeding, or separate properties of the same
owner are to be condemned, more than one set of commissioners
may be appointed. No person shall be appointed such a com-
missioner [[of estimate and appraisement in condemnation or
street opening proceedings or referee] in the first or second
judicial districts [, in an action or special proceeding, ]}} who holds
the position of clerk, private secretary, secretary, or stenographer
to any justice or judge of a court of record, or to any board
of justices or judges of such a court in any department where such
justice or judge is engaged in the discharge of the duties of his
office.

[§ 3369, code of civil procedure, without change. Last sentence
is the third sentence of code, § 1024, so far as relates to con-
demnation commissioners. Remainder of section is covered
elsewhere. |

§ 20, Duties and powers of commissioners. The commissioners
shall take and subscribe the constitutional oath of office. Any of
them may issue subpoenas and administer oaths to witnesses; a
majority of them may adjourn the proceeding before them, from
time to time in their discretion. Whenever they meet, except by
appointment of the court or pursuant to adjournment, they shall
cause at least eight days’ notice of such mecting to he given to the
defendants who have appeared, or their agents or attorneys. They
shall view the premises described in the petition, and hear the
1172 Reporr or Joinr Luecistarive Commirrer

proof and allegations of the parties, and, reduce the testimony
taken by them, if any, to writing, and after the testimony in each
case is closed, they, or a majority of them, all being present, shall,
without unnecessary delay, ascertain and determine the com-
pensation which ought justly to be made by the plaintiff to the
owners of the property appraised by them; and, in fixing the
amount of such compensation, they shall not make any allowance
or deduction on account of any real or supposed benefits which the
owners may derive from the public use for which the property is
to be taken, or the construction of any proposed improvement con-
nected with such public use. But in case the plaintiff is a rail-
road corporation and such real property shall belong to any other
railroad corporation, the commissioners on fixing the amount of
such compensation, shall fix the same at its fair value for railroad
purposes. They shall make a report of their proceedings to the
supreme court with the minutes of the testimony taken by them,
if any; and they shall each be entitled to six dollars for services
for every day they are actually engaged in the performance of
their duties, and their necessary expenses to be paid by the plain-
tiff; provided, that in proceedings within the counties of New
York and Kings such commissioners shall be entitled to such
additional compensation not exceeding twenty-five dollars for
every such day, as may be awarded by the court, and provided
that in proceedings instituted by a village or any board thereof
under this [title] chapter such commalasioness shall be entitled to
such additional compensation, not exceeding five dollars for every
such day, as may be awarded by the court.

[§ 3370, code of civil procedure, without change. ]

§ 21. Confirmation or setting aside report; deposit when payable.
Upon filing the report of the commissioners, any party may move
for its confirmation at a special term, held in the district where
the property or some part of it is situated, upon notice to the
other parties who have appeared, and upon such motion, the court
may confirm the report, or may set it aside for irregularity, or
for error of law in the proceedings before the commissioners, or
upon the ground that the award is excessive or insufficient. If the
report is set aside, the court may direct a rehearing before the
same commissioners, or may appoint new commissioners for that
purpose, and the proceedings upon such rehearing shall be con-
ducted in the manner prescribed for the original haat ing, and the
ConpEMNATiIon Law 117 3

same proceedings shall be had for the confirmation of the second
report, as are herein prescribed for the confirmation of the first
report. If the report is confirmed, the court shall enter a final
order in the proceeding, directing that compensation shall be
made to the owners of the property, pursuant to the determination
of the commissioners, and that upon payment of such compen-
sation, the plaintiff shall be entitled to enter into the possession’
of the property condemned, and take and hold it for the public
use specified in the judgment. Deposit of the money to the credit
of, or payable to the order of the owner, pursuant to the direction

of the court, shall be deemed a payment within the provisions of
this [title] chapter.

[§ 3371, code of civil procedure, without change. ]

§ 22. Offer to purchase; costs; additional allowance. 1. In all
cases where the owner is a resident and not under legal disability
to convey title to real property the plaintiff, before service of his
petition and notice, may make a written offer to purchase the prop-
erty at a specified price, which must within ten days thereafter
be filed in the office of the clerk of the county where the property
is situated ; and which cannot be given in evidence before the com-
missioners, or considered by them. The owner may at the time
of the presentation of the petition, or at any time previously,
serve noticé in writing of the acceptance of plaintiff’s offer, and
thereupon the plaintiff may, upon filing the petition, with proof
of the making of the offer and its acceptance, enter an order that
upon payment of the compensation agreed upon, he may enter into
possession of the real property described in the petition, and take
and hold it for the public use thereim specified.

2. If the offer is not accepted, and the compensation awarded
by the commissioners does not exceed the amount of the offer with
interest from the time it was made, no costs shall be allowed to
either party. If the compensation awarded shall exceed the
amount of the offer with interest from the time it was made, or
if no offer was made, the court shall, in the final order, direct that
the defendant recover of the plaintiff the cost of the proceeding,
to be taxed by the clerk at the same rate as is allowed, of course,
to the defendant when he is the prevailing party in an action in
the supreme ceurt, including the allowances for proceedings,
before and after notice of trial, and the court may also grant an
additional allowance of costs, not exceeding five per centum upon
1174 Report or Jomnt LucistativE ComMItTTEE

the amount awarded. The court shall also direct in the final order
what sum shall be paid to the general or special guardian, or com-
mittee or trustee of an infant, idiot, lunatic or habitual drunkard,
or to an attorney appointed by the court to attend to the interests
of any defendant upon whom other than personal service of the
petition and notice may have been made, and who has not ap-
peared, for costs, expenses and counsel fees, and by whom or
out of what fund the same shall be paid. If a trial has been had,
and all the issues determined in favor of the plaintiff, costs of the
trial shall not be allowed to the defendant, but the plaintiff shall
recover of any defendant answering the costs of such trial caused
by the interposition of the unsuccessful defence, to be taxed by the
clerk at the same rate as is allowed to the prevailing party for the
trial of an action in the supreme court.

[§ 3372, code of civil procedure, without change. ]

§ 23. Judgment, how enforced; delivery possession of premises;
when writ of assistance to issue. Upon the entry of the final order,
the same shall be attached to the judgment-roll in the proceeding,
and the amount directed to be paid, either as compensation to the
owners, or for the costs or expenses of the proceeding, shall be
docketed as a judgment against the person who is directed to pay
the same, and it shall have all the force and effect of a money
judgment i in an action in the supreme court, and collection thereof
may be enforced by execution and by the same proceedings as
judgments for the recovery of money in the supreme court may
be enforced [under the provisions of this act]. When payment
of the compensation awarded, and costs of the proceeding, if any,
has been made, as directed in the final order, and a certified copy
of such order has been served upon the owner, he shall, upon
demand of the plaintiff, deliver possession thereof to him, and in
case possession is not delivered when demanded, the plaintiff
may apply to the court without notice, unless the court shall
require notice to be given, upon proof of such payment and of
service of the copy order, and of the demand and non-compliance
therewith, for a writ of assistance, and the court shall thereupon
cause such writ to be issued, which shall be executed in the same
manner as when issued in other cases for the delivery of posses-
sion of real property.

[§ 3373, code of civil procedure, without change. ]
ConDEMNATION LAW 1175

§ 24, Abandonment and discontinuance of proceeding. Upon the
application of the plaintiff to be made at any time after the pre-
sentation of the petition and before the expiration of thirty days
after the entry of the final order, upon eight days’ notice of motion
to all other parties to the proceeding who have appeared therein
or upon an order to show cause, the court may, in its discretion,
and for good cause shown, authorize and direct the abandonment
and discontinuance of the proceeding, upon payment of the fees
and expenses, if any, of the commissioners, and the costs and
expenses directed to be paid in such final order, if such final order
shall have been entered, and upon such other terms and conditions
as the court may prescribe; and upon the entry of the order grant-
ing such application and upon compliance with the terms and
conditions therein prescribed, payment of the amount awarded
for compensation, if such compensation shall have been theretofore
awarded, shall not be enforced, but in such case, if such abandon-
ment and discontinuance of the proceeding be directed upon the
application of the plaintiff, the order granting such application,
if permitting a renewal of such proceedings, shall provide that
proceedings to acquire title to such lands or any part thereof shall
not be renewed by the plaintiff without a tender or deposit in
court of the amount of the award and interest thereon.

[§ 3874, code of civil procedure, without change. ]

§ 25. Appeal from final orders; stay. Appeal may be taken to
the appellate division of the supreme court from the final order,
within the time provided for appeals from orders by [title four
of chapter twelve of this act] article forty of the civil practice act ;
and all the provisions of such [chapter] article relating to appeals
to the appellate division of the supreme court from orders of the
special term shall apply to such appeals. Such appeal will bring
up for review all the proceedings subsequent to the judgment, but
the judgment and proceedings antecedent therete may be reviewed
on such appeal, if the appellant states in his notice that the same
will be brought up for review, and exceptions shall have been filed
to the decision of the court or the referee, and a case or a case and
exceptions shall have been made, settled and allowed, as required
by the provisions of [this act] the civil practice act for the review
of the trial of actions in the supreme court without a jury. The
proceedings of the plaintiff shall not be stayed upon such an
appeal, except by order of the court, upon notice to him, and the
1176 Rerort or Jownt Lecisuaritves CoMMITTEr

appeal shall not affect his possession of the property taken, and
the appeal of a defendant shall not be heard except on his stipu-
lation not to disturb such possession.

[$ 3375, code of civil procedure, without change of substance. ]

§ 26. Appeal from judgment by plaintiff. If a trial has been
had and judgment entered in favor of the defendant, the plaintiff
may appeal therefrom to the appellate division of the supreme
court within the time provided for appeals from judgments by
[title four of chapter twelve of this act] article forty of the evil
practice act, and all the provisions of said [chapter] article
relating to appeals from judgments shall apply to such appeals;
and on the hearing of the appeal the appellate division may affirm,,
reverse or modify the judgment, and in case of reversal may grant
a new trial, or direct that judgment be entered in favor of the
plaintiff. If the judgment is affirmed, costs shall be allowed to
the respondent, but if reversed or modified, no costs of the appeal
shall be allowed to either party.

[$ 3376, code of civil procedure, without change of substance. |

§ 27. When appellate division may direct a new appraisal. On
the hearing of the appeal from the final order the court may direct
a new appraisal before the same or new commissioners, in its dis-
cretion, and the report of such commissioners shall be final and
pouluntrs upon all parties interested. If the amount of the com-
pensation to be paid is increased by the last report, the difference
shall be a lien upon the land appraised, and shall be paid to the
parties entitled to the same, or shall be deposited as the court
shall direct; and if the amount is diminished, the difference shall
be vefntled to the plamtiff by the party to whom the same may
have been paid, and judgment therefor may be rendered by the
court, on the filing of the last report, against the parties liable to
pay ihe same.

[§ 3377, code of civil procedure, without change. ]

§ 28. Conflicting claimants. If there are adverse and conflicting
claimants to the money, or any part of it, to be paid as ecompen-
sation for the property taken, the court may direct the money to
be paid into the court by the laingae, and may determine who is
entitled to the same, and direct to whom the same shall be paid,
Conpemnation Law 1177

and may, jn its discretion, order a reference to ascertain the facts
on which such determination and direction are to be made.

L§ 3378, code of civil procedure, without change. ]

: § 29, Party in possession may stay on giving security. At any
stage of the proceeding the court may authorize the plaintitf, if
‘in possession of the property sought to be condemned, to continue
in possession, and may stay all actions or proceedings against
him on account thereof, upon giving security, or depositing such
sum of money as the court may direct to be held as security for the
payment of the compensation which may be finally awarded to
the owner therefor and the costs of the proceedings, and in every
such case the owner may conduct the proceeding to a conclusion,
if the plaintiff delays or neglects to prosecute the same. When
the final award to any owner is less than fifty dollars, in pro-
ceedings to condemn a right of way, for telephone or telegraph
poles and wires, the allowance of costs, if any, and the amount
thereof not exceeding that prescribed by statute, shall be in the
discretion of the court in any action or proceeding that may have
been or may hereafter be stayed, if the telephone or telegraph
poles and wires, in such action or proceeding so stayed, shall
have been erected for more than three years prior to the com-
mencement thereof.

[§ 8379, code of civil procedure, without change. |

§ 30, Temporary possession pending proceedings. When an answer
to the petition has been interposed, and it appears to the satis-
faction of the court that the public interests will be prejudiced
by delay, it may direct that the plaintiff be permitted to enter
immediately upon the real property to be taken, and devote it
temporarily to the public use specified in the petition, upon
depositing with the court the sum stated in the answer as the
value of the property, and which sum shall be applied, so far as
it may be necessary for that purpose, to the payment of the award
that may be made, and the costs and expenses of the proceeding,
aud the residue, if any, returned to the plaintiff, and, in case the
petition should be dismissed, or no award should be made, or the
proceedings should be abandoned by the plaintiff, the court shall
direct that the money so deposited, so far as it may be necessary,
shall be applied to the payment of any damages which the defend-
1178 Reporr or Joint Lecistative CommMirrer

ant may have sustained by such entry upon and use of his prop-
erty, and his costs and expenses of the proceedings, such damages
to be ascertained by the court, or a referee to be appointed for that
purpose, and if the sum so deposited shall be msufficient to pay
such damages, and all costs and expenses awarded to the defend-
ant, judgment shall be entered against the plaintiff for the defi-
ciency, to be enforced and collected in the same manner as a
judgment in the supreme court; and the possession of the prop-
‘erty shall be restored to the defendant.

[§ 8380, code of civil procedure, without change. |

§ 31. Notice of pendency of action to be filed. Upon service of
the petition, or at any time afterwards before the entry of the
final order, the plaintiff may file in the clerk’s office of each county
where any part of the property is situated, a notice of the pen-
dency of the proceeding, stating the names of the parties and the
object of the proceeding, and containing a brief description of the
property affected thereby, and from the time of filing, such notice
shall be constructive notice to a purchaser, or incumbrancer of the
property affected thereby, from or against a defendant with respect
to whom the notice is directed to be indexed, as herein prescribed,
and a person whose conveyance or incumbrance is subsequently
executed or subsequently recorded, is bound by all proceedings
taken in the proceeding after the filing of the notice, to the same
extent as if he was a party thereto. The county clerk must
immediately record such notice when filed in the book in his office
kept for the purpose of recording notices of pendency of actions,
and index it to the name of each defendant specified in the direc-
tion appended at the foot of the notice, and subscribed by the
plaintiff or his attorney.

b§ 3381, code of civil procedure, without change. ]

§ 32. Power of court to make necessary orders. In all proceed-
ings under this [title]. chapter, where the mode or manner of
conducting all or any of the proceedings therein is not expressly
provided for hy law, the court before whom such proceedings may
he pending, shall have the power to make all necessary orders
and give necessary directions to carry into effect the object and
intent of this [title] chaptcr, and of the several acts conferring
ere

Conpemnation Law 1179
authority to condemn lands for public use, and the practice in
such cases shall conform, as near as may be, to the ordinary prac-
tice in such court.

L§ 3382, code of civil procedure, without change. ]

§ 33, Limitations and exemptions. So much of all acts and parts
of acts as prescribe a method of procedure in proceedings for the
condemnation of real property for a public use is repealed, except
such acts and parts of acts as prescribe a method of procedure for
the condemnation of real property for public use as a highway,
or as a street, avenue, or public place in an incorporated city or
village, or as may prescribe methods of procedure for such con-
demnation for any public use for, by, on behalf, on the part, or
in the name of the corporation of the city of New York, known
as the mayor, aldermen, and commonalty of the city of New York,
or by whatever name known, or by or on the application of any
board, department, commissioners or other officers acting for or
on behalf or in the name of such corporation or city, or where
the title to the real property so to be acquired vests in such cor-
poration or in such city, and all proceedings for the condemnation
of real property embraced within the exceptions enumerated in
this section are exempted from the operation of this [title]
chapter.

[§ 3383, code of civil procedure, without change. |

ARTICLE 3
LAWS REPEALED; WHEN TO TAKE EFFECT

Section 40. Laws repealed.
41. When to take effect.

§ 40, Laws repealed. Scctions three thousand three hundred
and fifty-seven to three thousand three hundred and eighty-four,
inclusive, of the code of civil procedure, and all acts amendatory
thereof, are hereby repealed.

[ New. ]
1180 Reporr or Jour Leaisnative Commrrrer
. ‘ oe: ei Oa

§ 41, When to take effect. This [title] chapter shall take
effect [on the first day of May, one thousand eight hundred and
ninety, and shall not affect any proceeding previously com-
menced] April fifteenth, nineteen hundred and twenty.

[§ 3384, eode of civil procedure, amended as indicated. Pend-
ing proceedings are saved by §§ 94 and 95 of general construction
law.]
COUNTY LAW AMENDMENTS

[1181]
COUNTY LAW#AMENDMENTS

AW ACT to amend the county law, generally.

The People of the State of New York, represented in Senate
ard Assembly, do enact as follows:

Section 1. Section two of chapter sixteen of the laws of nine-
teen hundred and nine, entitled “An act in relation to counties,
constituting chapter eleven of the consolidated laws,” is hereby
amended to read as follows:

§ 2. Application of this chapter. This chapter shall not apply
to the county of New York, except as hereinafter specifically
provided, and except that provisions of the code of civil procedure
m force on January first, nineteen hundred and seventeen, appli-
cable to the county of New York and substantially re-enacted into
this chapter in such year shall continue to apply to such county.

§ 2. Section one hundred and fifty-three of such chapter is
hereby amended to read as follows:

§ 153. Court may direct action on bond of county treasurer.
Whenever any county treasurer, after service on him personally,
or by leaving at his office, in his absence, with some person having
charge thereof, or if such service can not be made, by leaving with
some person of suitable age and discretion at his place of residence,
or at his last place of residence in the county, if he has departed
therefrom, of a certified copy of an order or judgment of the court,
directing the payment or delivery of any money, [or] stocks,
securities or other investments held by him pursuant to an order
of the court, to any person or persons, shall fail or neglect so to-do,
or where any county treasurer has invested or loaned any moneys
held by him pursuant to an order of the court, to any person or per-
sons on inadequate or worthless securities, and shall fail or neglect,
when required so to do, to pay over the amount of the moneys so
invested to the person or persons entitled thereto, the court may,
by order, direct that an action be brought upon the official bond
of such treasurer, against him and his sureties, to recover the
amount of the money or securities so directed to be paid or deliv-
ered, or of the moneys so invested on inadequate or worthless
security, for the benefit of the person or persons in whose behalf

[1183]
1184 Rerorr or Jornt Lecisuattve CoMMiIrrer

the direction shall have been by such order given, and whose name
or names appear therein, or their assigns, and’ thereupon such
action may be brought for such purpose.

[Code, § 1887, without enine of substance is covered by the
amendment. |

§ 3. Article eight of such chapter is hereby amended by adding
thereto a new section, to be section one hundred and fifty- four, to
read as follows:

§ 154. When county treasurer of Erie county to act as coroner.
In the county of Erie the powers imposed and the duties con-
ferred upon coroners by sections one hundred and ninety-sia to.
one hundred and ninety-nine-f of this chapter [the provisions of
this title] shall be exercised and performed by the county treasurer
of such county, and such county treasurer shall, in the exercise
and performance thereof, be subject to the same liabilities and
responsibilities as are prescribed | in such sections [this title} in
the case of coroners.

[Code, § 181-a, without change of substance. ]

§ 4. Such chapter is hereby amended by inserting at the end
of article nine four new sections, to be sections one hundred and
seventy, one hundred and seventy-one, one hundred and seventy-
two and one hundred and seventy-three, to read as follows:

§ 170. When county clerks in the city of New York to act as
coroners. In the city of New York the powers imposed and the
duties conferred upon coroners by sections [196-199-f] one hun-
dred and ninety-six to one hundred and ninety-nine-f of this chap-
ter shall be exercised and performed by the county clerk of the
appropriate county, and the county clerk shall, in the exercise
and performance thereof, be subject to the same liabilities and
responsibilities as are prescribed in such sections in the case of
coroners.

[See section 1585-a of the Greater New York charter, added by
Laws 1915, chapter 284.]

§ 171. Clerk to keep judgment docket book. Each county
clerk[, and the clerk of the city court of the city of New York,
must] shall keep one or more books, ruled in columns, convenient
for making the entries prescribed in section [twelve hundred and.
Country Law AMENDMEN?S 1185

forty-six] five hundred and sixteen of the civil practice law; in
which he must docket, in its regular order, and according to its
priority, each judgment which he is required [by this article] to
‘docket. The expense of procuring new books when necessary is a
county charge.

[Code, § 1245, first two sentences. Included by Board in county
law, § 174. Covered as to city court by proposed city court act,

§ 9]

§ 172. Judgment docket and card index; New York county.
1. The judgment dockets kept by the county clerk of New York
county must [hereafter] be kept in two separate sets of books,
one set to be designated and used for judgment debtors that are
individuals, including all individual members of a copartnership
or of a firm doing business under a firm name or style as stated
in the title of the action, and the other set to be designated and
used for judgment debtors that are corporations, a joint stock
company, a copartnership or a firm name or style under which a
person or persons are doing business; and each set of such judg-
‘ment dockets: must have a separate volume or volumes for each
letter of the alphabet, and each judgment docket book shall have
its letter, and the year or years of its entries plainly marked on
its back and cover and on every page.

2. A judgment docket for judgment debtors that are individuals
shall contain the names of those judgment debtors whose last name
begins with the letter marked on the back of the volume. Each
‘volume shall also have a marginal page index showing each letter
of the alphabet in order. And a page of such jadgment docket
for judgment debtors that are individuals shall contain the names
of those judgment debtors whose first name begins with the letter
or whose first initial is the letter marked on the marginal index
for that page; except that there shall be at the back of each of
such volumes blank pages not indexed which shall contain the
names of those judgment debtors whose first names or initials are
stated in the title of the action to be unknown ov fictitious.

8. [And] A judgment docket for those judgment debtors that
are corporations, a joint stock company, a copartnership or a firm
name or stvle under which a person or persons are doing business
shall contain the names of those judgment debtors the first letter
‘or initial of whose name as it appears, following the prefixed

Po gg:

=
1186 Report or Joint Learsiartve ComMirret

articles “A,” “An,” or “ The,” is the letter marked on the page
and on the back of the book.

4. [And] There must be prepared and kept two separate sets
of volumes for judgment dockets, designated, lettered, indexed
and marked as hereinbefore provided in which there shall be
entered in the same manner as hereinbefore directed to be entered,
in their regular order and according to their priority and as soon
as it may be practicable to have it done, the names of judgment
debtors against whom judgments have been docketed within ten
years of the time of the making of the entry in such volumes.

5. [And] The county clerk of New York county shall prepare
and keep a card index, supplemental to the judgment docket books
hereinbefore provided for, wherein he shall enter and arrange in
alphabetical order the names of all judgment debtors hereinbefore
directed to be docketed.

6. [And] With every entry of a judgment in an action begun
on or after September first, nineteen hundred and eleven, there
shall be entered as a part of such entry the number of the action
and the year in which it was begun.

[Code, § 1245, part, without change. Included by Board in
county law, § 177. |

§ 173, Current docket books and filing for New York and Bronx
counties. 7. The county clerk of New York county and the county
clerk of Bronx county must keep books to be known as current
docket books. Each half page of space in each book shall be con-
secutively numbered in a series of consecutive numbers for each
year and shall be devoted to one action. On a half page so num-
bered the clerk shall enter the title of the action having the same
consecutive number for that year, with the names of the plaintitis
and defendants and attorneys in full, and in chronological order
a brief description of each paper as it is filed, together with the
date of filing thereof, also the verdict, report or decision, if any,
rendered in the action as of the date of the rendering thereof, also
all orders and judgments in the action. All interlocutory and
provisional proceedings, and proceedings supplementary to execu-
tion, shall he entered on the same half page of the docket as the
action out of which they arise, except in actions where the entries
are so voluminous as to require one or more additional half pages
of space; in which case the entries shall be continued under the
same number upon other pages of that or a subsequent docket
' Country Law AMENDMENTS 1187

book, reference thereto being entered at the end of the first and all
additional half pages, and the clerk upon entering the description
of a paper filed in an action shall enter upon its front page and
opposite the title caption the number of the action and the filing
date and number of entry of the paper.

2. There shall be kept an alphabetical index of all the actions
entered in such current docket books during any year, which index
shall consist of two sets of separate volumes, one set to be desig-
nated and used for indexing actions wherein the plaintiff or plain-
tiffs are individuals, including all individual members of a
copartnership or of a firm doing business under a firm name or
style as stated in the title of the action, and the other set to be
designated and used for indexing actions wherein the plaintiff or
plaintiffs are corporations, a joint stock company, a copartnership
or a firm name or stvle under whieh a person or persons are doing
business. Each of such sets of index books shall have a separate
volume or volumes for each letter of the alphabet, and the volumes
designated and used for indexing actions wherein the plaintiff or
plaintiffs are individuals shall have a marginal page index show-
ing each letter of the alphabet in order, and shall have the desig-
nation of its set of books, its letter and the vear or years of its
entries plainly marked on its back and cover and on every page.
And all such actions shall be indexed in such index volumes
according to all the plaintitis of each title, in the same manner as
it is provided in section [1245] one hundred and seventy-two of
this chapter that judgment debtors shall be docketed in the judg-
ment docket books, and in every case the serial number of the
action shall be entered opposite the name indexed. [Within three
days after a summons, writ or other original process is served in
an action in the supreme court, New York county, or in an action
in the supreme court, Bronx county, or in an action in the county
court, Bronx county, the attorney or party causing the same to he
served shall file said process with proof of service in the office of
the clerk who has custody of the records of the court in which the
action is brought. The said clerk shall, upon receipt thereof,
stamp the same upon its front page with a certain number to be
one of the series for that vear, and enter in the current docket
book, on the half page bearing the same number, the names of
the parties as they appear on said process, and the name and
address of the attorney who issued the same. And the attorney
or party causing such summons, writ or original process to be
served shall, upon demand, give to the party so served, or to the
1188 Report or Jor Leoistatrive Commirtree

attorney of such party, the number so stamped by the clerk,
stamped or indorsed upon a paper with the title of the uction, and
the name and address of the attorney or party who made or caused
the service to be made. All papers in the action shall bear the
same number and year as the summons, writ or other original
process, which number shall constitute a part of the title of such
action. All original papers in the action, with proof or admission
of their service, not later than the day after their service, shall be
filed with or mailed to the clerk who stamped the number on the
summons, writ or other original process. All papers to be here-
after filed with the clerk ot New York county, or with the clerk
of Bronx county must be flat and filed fat. ‘The word “ action”
as used in this section shall mean “ action or special proceeding. ]

3. Whenever a paper pertaining to any action begun prior to
September first, nineteen hundred and eleven, as to New York
county or prior to May tenth, nineteen hundred and fifteen, as to
Bronx county, [the passage of this act] is filed in the ottice of
the clerk who has custody of the records of the court in which the
action is pending the clerk shall upon receipt of such paper stamp
the same upon the front page with a certain number, to be one of
a series of consecutive numbers for the year in which said action
was brought, and shall enter in a current docket book prepared
for that year the names of the parties to the action and the name
and address of the attorney who filed the paper, in the same man-
ner as 1f such paper were the original summons, writ or other
process in such action; and the clerk shall as soon as practicable
thereafter stamp or indorse that number upon every paper in that
action theretofore filed in his office and shall enter such papers, as
they are so numbered, in such docket book in the same manner as
if such docketing had been begun with the first paper in such
action. And all such entries in such docket books of actions begun
prior to September first, nineteen hundred and eleven, as to New
York county or prior to May tenth, nineteen hundred and fifteen,
as to Bronx county, [the passage of this act] shall be indexed in
separate volumes for each letter of the alphabet, and for corpo-
rations, a joint stock company, a copartnership or a person or
persons doing business under a firm name or style, as hereinbefore
provided, in the same manner as actions begun before such date
[after the passage of this act are hereinbefore directed to be
indexed].

4. Whenever an action is transferred to another court, or the
place of trial changed, the clerk to whom the papers in such action
Counry Law AMENDMENTS 1189

are delivered shall enter in the current docket book in which ha
makes entries copies of all entries theretofore made in said action,
and shall continue to make subsequent entries therein in the same
manner as if the process had originally been filed with him. All
papers numbered and docketed as herein directed shall be filed
together ; and on the entry of final judgment in any action all the
papers in that action shall be arranged in the order of the dates
on which they were filed and shall be fastened or bound together
flat with the judgment-roll and go filed.

5. The county clerk of New York county shall appoint, subject
to the rules of the state civil service commission, such subordinates
“as may be necessary for the work required to be done in his office
under the provisions of this section [act], and shall designate the
positions and fix compensation of such suhordinates, subject to the
approval of the board of estimate and apportionment of the city
of New York[; and the comptroller of the city of New York shall
issue and sell certificates of indebtedness to an amount sufficient to
provide for the payment of the salaries of such subordinates dur-
ing the year nineteen hundred and twelve, which shall be a charge
against the county of New York, and an amount sufficient to pay
and discharge the certificates so issued shall he included in the
budget made by said board of estimate and apportionment for the
year nineteen hundred and thirteen].

[Code, § 1245-a, part, without change of substance. The mat-

ter in brackets relating to filing papers should be covered by
Rule. ]

§ 5, Article ten of such chapter is hereby amended by adding
at the end thercof ten new sections, to be sections one hundred
and ninety-six to one hundred and ninety-nine-f, to read, respec-
tively, as follows:

$ 196. Duties of coroner when sheriff is a party. In an action
or special proceeding, to which the sheriff of a county is a party,
a coroner of the same county has all the power, and is subject to
all the duties of a sheriff, in a cause to which the sheriff is not a
party; except as otherwise specially prescribed by law.

[Code, § 172, without change. |

§ 197, Any one of the coroners may execute a mandate. A man-
date in a civil action or special proceeding which must or may be
1190 Reporr or Joint Leqistarive CoMMrrrer

executed by the coroners, or by a coroner of a county, must be
directed either to a particular coroner, or generally to the coroners
of that county. Where such a mandate is directed generally to
the coroners of a county, or requires them to do any act, it may
be exceuted, and a return thereto may be made and signed, by one
of them; but such an act or return does not affect the others,

[Code, § 173, without change. ]

§ 198, Arrest of sheriff by coroner. Where a mandate, requiring
the arrest of the sheriff of the county, is directed to a coroner,
he must execute the same in the manner prescribed by law, with
respect to the execution of a similar mandate by a sheriff; and he
is authorized to take an undertaking on the arrest, or an under-
taking for the jail liberties, in a like case, and in like manner,
and with like effect, as where such an undertaking may be faken
by a sheriff.

[Code, § 174, without change. ]

§ 199. Confinement of sheriff under arrest by coroner. Where
the actual confinement of a sheriff by a coroner, on a mandate, is
required or authorized by law, he must be confined by the coroner,
in a house situated within the liberties of the jail of the county,
other than the sheriff’s house, or the jail, in the same manner as a
sheriff is required by law to confine a prisoner in the jail.

[Code, § 175, without change. ]

§ 199-a. Place of confinement to be deemed a jail. That house
thereupon becomes the jail of the county, for the use of the coroner
and each provision of law relating to the jail, or to an escape from
the jail, applies thereto, while the sheriff is confined therein.

[Code, § 176, without change. ]

§ 199-b. Sheriff how admitted to jail liberties; liability of coroner
for escape. A sheriff so arrested must be admitted to the liberties
of the jail of the county, in a like case, and upon executing a like
undertaking to the coroner, as prescribed by law for a prisoner
in the sheriff’s custody. For an eseape of the sheriff from the
County Law Amenpuents 1191

liberties, the coroner is liable, in the same manner, and to the

same extent, as a sheriff for a similar escape; and he may make
the same defense as a sheriff,

[Code, § 177, without change. ]

x 199-c. Rights of coroner to prosecute, upon undertaking for
jail liberties. The coroner may prosecute an undertaking for the
liberties taken by him, and is entitled to all the rights, and subject
to all the liabilities prescribed by law with respect to a similar
undertaking taken by a sheriff. The undertaking may be assigned
by him, to the party at whose instance the sheriff was arrested ;
and the same proceedings may be had thereupon, as upon an
undertaking taken and assigned by a sheriff in a similar ease.

[Code, § 178, without change. ]

§ 199-d. Confinement of person arrested by coroner when sheriff
is plaintiff. A person arrested by a coroner, in an action or special
proceeding, in which the sheriff of the county is plaintiff, must be
confined in the jail of the county, in a case where such a confine-
ment is required or authorized by law; but the coroner is not
liable for an escape of the prisoner from the jail, after he has
been confined therein. A person so confined must be kept and-
treated, in all respects, like a prisoner confined by the sheriff.

[Code, § 179, without change. ]

§ 199-e. Jail liberties, undertaking and discharge of person
arrested by coroner. A person so arrested by a coroner is entitled
to be discharged, or to the liberties of the jail, as the case requires,
upon giving an undertaking to the coroner, in the like manner,
and in a like case, in which a person arrested by a sheriff would
be entitled to be discharged, or to the liberties. The undertaking
so given must be in all respects similar to that required to be given
to a sheriff; and it has the like effect, and may be assigned and
proceeded upon in like manner.

[Code, § 180, without change. ]

§ 199-f. Liability of coroner for escape of such prisoner. A
coroner is answerable for an escape of a prisoner, admitted by
1492 Reporr or Joiny Lutisiarive CoMMrirrer

him to the liberties of the jail, in the same manner and to the
same extent as a sheriff and may interpose a like defense.

[Code, § 181, without change. ]

§ 6. Sections one hundred and seventy-two to one hundred and
eighty-one, both inclusive, section one hundred and eight-one-a,
section twelve hundred and forty-five; all of section twelve hun-
dred and forty-five-a except the eighth to the fourteenth sentences,
both inclusive; and section eighteen hundred and eighty-seven of
the code of civil procedure and all acts amendatory thereof, are
hereby repealed.

§ 7. This act shall take effect April fifteenth, nineteen hun-
dred and twenty.
DECEDENT ESTATE LAW
AMENDMENTS

[1193]
DECEDENT ESTATE LAW AMENDMENTS

AN ACT to amend the decedent estate law, generally.

The People of the State of New York, represented in Senate
and Assembly, do enact as follows:

Section 1. Chapter eighteen of the laws of nineteen hundred
and nine, entitled “An act relating to estates of deceased persons,
constituting chapter thirteen of the consolidated laws,” is hereby
amended by adding thereto five new articles, to be articles five,
six, seven, eight and nine, respectively, to read as follows:

ARTICLE 5
ACTION FOR CAUSING DEATH OF DECEDENT

Section 130. Action by executor or administrator for negligence
or wrongful act or default causing death of
decedent.

131. Trial and burden of proof of contributory negli-
gence.

132. Amount of recovery.

133. Distribution of damages recovered.

134. Next of kin defined.

§ 130, Action by executor or administrator for negligence or
wrongful act or default causing death of decedent. The executor or
administrator duly appointed in this state, or in any other state,
territory or district of the United States, or in any foreign
country, of a decedent who has left him or her surviving a hus-
band, wife, or next of kin, may maintain an action to recover dam-
ages for a wrongful act, neglect or default, by which the decedent’s
death was caused, against a natural person who, or a corporation
which, would have been liable to an action in favor of the deced-
ent by reason thereof if death had not ensued. Such an action
must be commenced within two years after the decedent's death.
When the husband, wife or next of kin, do not participate in the
estate of decedent, under a will appointing an executor, other than

[1195]
1196 Report or Jor Lratsuartve ComMIrree

such husband, wife or next of kin, who refuses to bring such
action, then such husband, wife or next of kin shall be entitled to
have an administrator appointed for the purpose of prosecuting
such action for their benefit.

[Code, § 1902, without change. ]

§ 131. Trial and burden of proof of contributory negligence. On
the trial of any action to recover damages for causing death the
contributory negligence of the person killed shall be a defense,
to be pleaded and proven by the defendant.

[Code, § 841-b, without change, as added by L. 1913, ch. 228,
This section has been duplicated in Civil Practice Act, § 265.]

§ 132, Amount of recovery. The damages awarded to the plain-
tiff may be such a sum as the jury upon a writ of inquiry, or upon
a trial, or, where issies of fact are tried without a jury, the court
or the referee, deems to be a fair and just compensation for the
pecuniary injuries, resulting from the decedent’s death, to the
person or persons, for whose benefit the action is brought. If the
decedent leaves surviving a father and a mother, the death of such
father prior to the verdict shall not affect the amount of damages
recoverable. When final judgment for the plaintiff is rendered,
the clerk must add to the sum so awarded, interest thereupon from
the decedent’s death, and include it in the judgment. The inqui-
sition, verdict, report or decision, may specify the day from which
interest is to be computed; if it omits so to do, the day may be
determined by the clerk, upon affidavits.

[Code, § 1904, without change. ]

§ 133. Distribution of damages recovered. The damages re
covered in an action, [brought] as prescribed in [the last section]
this article, or obtained through scttlement without action,
are exclusively for the benefit of the deecdent's husband or wife,
and next of kin; and, when they are collected, they must be dis-
tributed by the plaintiff, or representative, as if they were unbe-
queathed assets, left in his hands, after payment of all debts, and
expenses of administration ; subject however to the following pro-
visions, to wit:

1. In ease the decedent shall have left him surviving a wife or a
husband, but no children, the damages recovered shall be for the
sole benefit of such wife or husband.
Decepenr Egratre Law AMENDMENTS 1197

2. In case the decedent leaves neither husband, wife, nor issue,
but leaves a mother, and a father who has abandoned him, or
who has left the maintenance and support of their child to the
mother, the damages or recovery shall be for the sole benefit of
such mother.

3. In case the decedent leaves no husband or wife, issue or
father, or having left a father entitled to recovery, who dies prior
to the recovery or verdict, the damages or recovery shall be for
the sole benefit of the mother if then living.

The reasonable expenses of the action, or settlement, the rea-
sonable funeral expenses of the decedent, and the commissions of
the plaintiff or representative, upon the residue may be fixed by
the surrogate, upon notice, given in such a manner and to such
persons, as the surrogate deems proper or upon the judicial settle
ment of the account of the plaintiff, or representative, and may be
deducted from the ‘recovery.

[Code, § 1903, without change. ]

§ 154. Next of kin defined. The term “next of kin,” as used
in the last three sections of this article includes all those entitled
under the provisions of law relating to the distribution of personal
property, to share in the unbequeathed assets of a decedent, afier
payment of debts and expenses, other than a surviving husband or
wife [the foregoing section, has the meaning specified in section
eighteen hundr ed aa seventy of this act}, except if decedent leaves
surviving a father and mother but no widow, child ur descendant,
it shall mean both the father and the mother.

[Code, § 1905, without change of substance. The new matter
substitutes the text of § 1870 for the reference. |

ARTICLE 6

ACTION BY OR AGAINST AN EXECUTOR OR
ADMINISTRATOR; PRACTICE REGULATIONS

Section 140. Executor and administrator; how to sue or be sued.

141. When personal and representative causes of action
may be joined.

142. Separate dockets and executions. ne
1198 R

Section 143

144.

147.

148.

149.

152.
153.
154.
155.

156.
157.
158.
159.
160.

145.
146.

Eport or JoiNT Levtstative COMMITTEE

. Regulations, when some of the executors are not
summoned.

Executors who have not qualified not necessary par-
ties.

When action not to abate by death.

Action upon refusal to pay legacy or distributive
share, :

Action by infant for legacy or distributive share;
euardian’s bond.

When action barred by judgment against heir or
devisec.

Decedent’s real property not bound by judgment
against executor or administrator.

. Want of assets not to be pleaded by exceutor or

administrator.

. Leave to issue execution against executor or admin-

istrator.

How leave procured; order; and contents thereof.

Security before grant of order.

Execution on former judgment.

Action against executor or administrator who has
been superseded.

False pleading by executor or administrator.

When inventory may be contradicted.

Liability for uncollected demands.

The last two sections qualified.

Foreign executor or administrator may sue or be
sued,

§ 140, Executor and administrator; how to sue or be sued. An
action or special proceeding, hereafter commenced by an executor
or administrator, upon a cause of action, belonging to him in his
representative capacity, or an action or special proceeding, here-

after comme
him persona

uced against him, except where it is brought to charge
lly, must be brought by or against him in his repre

sentative capacity. FA judgment, in an action hereafter com-
meneed, recovered against an executor or administrator, without

describing h

im in his representative capacity, cannot be enforced

against the property of the deecdent, except by the special dircetion
of the court, contained therein.J

[Code, §

1814, without change. ]
Decepenr Esrare Law AMENDMENTS 1199

x 141, When personal and representative causes of action may be
joined. An action may be brought against an executor or adminis-
trator, personally, and also in his representative capacity, in either
of the following cases:

1. Where the complaint sets forth a cause of action against him
in both capacities, or states facts, which render it uncertain in
which capacity the cause of action exists against him.

2. Where the complaint sets forth two or more causes of action
against the defendant, in different capacities, all of which grow
out of the same transaction, or transactions connected with the
same subject of action; do not require different places or modes of
trial; and are not inconsistent with each other.

In a case specified in this section, a judgment for the plaintiff
for a sum of money must distinctly show whcther it is awarded
against the defendant personally, or in his representative capacity.

[Code, § 1815, without change. ]

§ 142. Separate dockets and executions. In a case specified in
the last section, or where costs, to be collected out of the individual
property of an executor or administrator, are awarded in an action
by or against him in his representative capacity, so much of the
judgment, as awards a sum of money against him personally, may
be separately docketed, and a separate exeention may be issued
thereupon, as if the judgment containcd no award against him in
his representative capacity.

[Code, § 1816, without chance. ]

§ 143. Regulations, when some of the executors are not summoned.
In an action or special proceeding against two or more executors °
or administrators, representing the same decedent, all are con-
sidered as one person; and those who are first served with process,
or first appear, must answer the plaintiff. Separate answers, by
different executors or administrators cannot be required or allowed,
except by direction of the court. Judgment in favor of the plaintiff
- may be entered, and, in a proper case, execution may be issued
against all the defendants as if all had appeared. But this section
~ does not affect the plaintiff’s right to bring into court all the execu-
tors or administrators who are parties.

[Code, § 1817, without change] sansa ass
1200 Revorr or Jour LecistativE COMMITTEE

§ 144, Executors who have not qualified not necessary parties.
One of two or more executors to whom letters testamentary have
not been issued is not a necessary party to an action or special
preceeding in favor of or against the executors in their repre-
sentative capacity.

[Code, § 1818, without change. ]

§ 145. When action not to abate by death. Where an action or
special proceeding is authorized or directed by law, to be brought
by or in the name of an executor, administrator or a person
appointed by a surrogate. as prescribed by law, to dispose of the
real property of a decedent [a public officer, or by a receiver, or
other trustee, appointed by virtue of a statute], his death or
removal does not abate the action or special proceeding; but the
same may be continued by his successor, who must, upon his appli-
eation, or that of a party interested, be substituted for that purpose
by the order of the court, a copy of which must be annexed to the
judgment-roll.

[Code, § 766, amended to conform to the reference in § 1828.
The latter section, now unnecessary is as follows: An executor,
administrator, or a person appointed by the surrogate, as pre-
scribed in chapter eighteenth of this ect, to dispose of the real
property of a decedent, is deemed a trustee, appointed by virtue

of a statute, within the meaning of that expression as used in see
tion 766 of this act. ]

§ 146, Action upon refusal to pay legacy or distributive share.
If, after the expiration of one year from the granting of letters
testamentary or letters of administration, an executor or adminis-
‘ trator refuses, upon demand, to pay a legacy, or distributive share,
the person entitled thereto may maintain such an action against
him, as the case requires. But for the purpose of computing the
time, within which such an action must be commenced, the cause
of action is deemed to accrue, when the exceutor’s or adminis-
trator’s account is judicially settled, and not before.

[Code, § 1819, without change. ]
§ 147, Action by infant for legacy or distributive share;

guardian’s bond. ‘The guardian ad litem of an infant, in whose
favor an action is brought, as prescribed in the last section, must,
Decepen Esrare Law AMENDMENTS © 1201

unless he is also the general guardian, exceute and file with the
clerk, before the commencement of the action, a bond to the infant,
with at least two suflicient sureties, in a penalty fixed by a judge
of the court, conditioned that the guardian will duly account to
the infant, when he attains full age, or, in case of his death,
to his personal representatives, for all money or property, which

the guardian may receive, by reason of the legacy or distributive
share,

[Code, § 1820, without change. ]

§ 148. When action barred by judgment against heir or devisee.
A final judgment against an heir or devisee bars an action against
the executor or administrator of the decedent, for the same cause,
and every other remedy to enforce payment thereof out of the
decedent's property, unless an execution against property issued
upon the judgment has been returned wholly or partly unsatisfied,
or sufficient real property to satisfy the judgment has not de-
scended, or been devised, to the judgment debtor. But, if the
judgment was recovered for a debt or legacy, expressly charged
upon the estate descended or devised, the bar is absolute.

[Code, § 1821, without change. ]

§ 149. Decedent’s real property not bound by judgment against
executor or administrator. eal property, which belonged to a
decedent, is not bound, or in any way affected, by a judgment
against his executor or administrator, and is not liable to be sold
by virtue of an exceution issued upon such a judgment, unless the
judgment is expressly made, by its terms, a len upon specific
real property therein described, or expressly directs the sale
thereof.

[Code, § 1823, without change. ]

§ 150. Want of assets not to be pleaded by executor or adminis-
trator. In an action against an executor or administrator, in his
representative capacity, wherein the complaint demands judgment
for a sum of money, the existence, sufficiency, or want of assets,
shall not be pleaded by either party; and the plaintiff's right of
recovery is not affected thereby, except with respect to the costs
to be awarded, as prescribed by law. A judgment in such an ac-
tion is not evidence of assets in the defendant’s hands.

[Code, § 1824, without change. ]
1202 Report or Jownr Lecistarive CoMMITTEE

§ 151, Leave to issue execution against executor or administrator.
Except as provided in this section, an execution shall not be issued,
upon a judgment for a sum of money, against an executor or
administrator, in his representative capacity, until an order per-
mitting it to be issued has been made by the surrogate from whose
court the letters were issued. Such an order must specify the
sum to be collected, and the execution must be indorsed with a
direction to collect that sum. If a judgment be jointly against.
an executor or administrator in his representative capacity and
one or more other parties, execution may be issued thereon, with-
out such order, against such other party or parties, but it must
have indorsed thereon a direction not to levy against any prop-
erty to the possession of which such executor or administrator
as such is or may be entitled.

[Code, § 1825, without change. ]

§ 152. How leave procured; order; and contents thereof. At
least six days’ notice of the application for an order specified in the
last section, must be personally served upon the executor or admin-
istrator, unless it appears that service cannot be so made with due
diligence ; in which case notice must be given to such persons, and
in such manner as the surrogate directs, by an order to show cause
why the application should not be granted. Where it appears
that the assets, after payment of all sums chargeable against them
for expenses, and for claims entitled to priority as against the
plaintiff, are not, or will not be, sufficient to pay all the debts,
legacies or other claims of the class to which the plaintiffs claim
belongs, the sum, directed to be collected by the execution, shall
not exceed the plaintiff’s just proportion of the assets. In that
case, one or more orders may be afterwards made in like manner,
and one or more executions may be afterwards issued, whenever
it appears that the sum directed to be collected by the first execu-
tion is less than the plaintiff’s just proportion.

[Code, § 1826, without change. ]

§. 153. Security before grant of order. Where a judgment has
been rendered against an executor or administrator, for a legacy
or distributive shine, the surrogate, before granting an order per-
mitting an execution to be eeaned thereupon, may, and in a proper
case must, require the applicant to file in his office an undertaking
Decepent Esrate Law AMENDMENTS 1203

to the defendant, in such a sum and with such sureties as the
surrogate directs, to the effect that if, after collection of any sum
of money by virtue of the exceution, the remaining assets are not
sufficient to pay all sums for which the defendant is chargeable
for expenses, claims entitled to priority as against the applicant,
and the other legacies or distributive shares, of the class to which
the applicant’s claim belongs, the plaintiff will refund to the
defendant the sum so collected, or such ratable part thereof, with
the other legatees or representatives of the same class, as is neces-
sary to make up the deficiency.

[Code, § 1827, withovt change. ]

§ 154, Execution on former judgment. An execution may be
issued, in the name of an executor or administrator, in his repre-
sentative capacity, upon a judgment recovered by any person who
preceded him in the administration of the same estate, in any case
where it might have been issued in favor of the original plaintiff,
and without a substitution.

[Code, § 1829, without change. ]

§ 155. Action against executor or administrator who has been
superseded. Jf an executor or administrator is defendant in an
action or special proceeding, pending when his powers cease, the
plaintiff may, in a proper case, proceed therein against him, to
charge him personally; but a judgment or other determination,
thereafter rendered or made against him, is not of any force, as
against the estate of the decedent, or a person succeeding to the
administration thereof.

[Code, § 1830, without change. ]

& 156. False pleading by executor or administrator. An executor

or administrator cannot be made personally liable to the adverse
party, for a debt or for damages, by reason of his having made a
false allegation in pleading.

[Code, § 1831, without change. ]

§ 157. When inventory may be contradicted. In an action or
special proceeding, to which an executor or administrator is a
party, wherein the question whether he has administered the estate
1204 Revorr or Jor Lecisnarive CoMMITTEE

of the decedent, or any part theroof, is in issue, or is the subject
of inquiry, and the inventory of assets, filed by him, is given in
evidence, either party may rebut the same by proof, either
1. That any property was omitted in the inventory, or was not
returned therein at its true value; or
9. That any property has perished, or has been lost, without
the fault of the executor or administrator; or has been fairly
sold by him, at private or public sale, at a less price than the
value so returned; or that, since the return of the inventory, it
has de“eriorated or gtcue f in value.

[Code, § 1832, without change. ]

§ 158, Liability for uncollected demands. In such an action or
special proceeding, the executor or administrator shall not be
charged with a demand or right of action, included in the inven-
tory, unless it appears that the same has been collected, or might
have been collected, with due diligence.

[Code, § 1833, without change. ]

§ 159. The last two sections qualified. The last two sections do
not vary any rule of cvidence respecting any proof, which an
executor or administrator may now make.

[Code, § 1834, without change. Sections 1835, 1836 included
in Civil Practice Act under “ Costs.’’]

§ 160, Foreign executor or administrator may sue or be sued

An executor or administrator duly appointed in any other state,
territory or district of the United States or in any foreign coun-
try may sue or be sued in any court in this state in his capacity
of executor or administrator in like manner and under like re-
strictions as a nonresident may sue or be sued, if, within twenty
days after any such executor or administrator shall commence,
or appear in, any action or proceeding in any court in this state
or within twenty days after he shall be required or directed bv
summons or otherwise to appear therein, there shall be filed in
the office of the clerk of the court, in which such action or pro-
ceeding shall be brought or be pending: a copy of the letters tes-
tamentary or letters of administration issued to such executor or
administrator duly authenticated as prescribed by section 45 of
Drcepent Esrarr Law AMENDMENTS 1205

this chapter [twenty-seven hundred and four of the code of civil
procedure]; in default whereof all proceedings in such action or
proceeding may be stayed until such duly authenticated copy of
such letters shall be so filed.

[Code, § 1836-a, without change. ]

ARTICLE 7

ACTION BY CREDITOR AGAINST DEBTOR’S
NEXT OF KIN, LEGATEE OR DEVISEE

Section 170.

171.
172.
173.
174.
175,
176.
127,

178.
179.
180.
181.
182.
188.
184.
185.
186.
187.
188.

189.
190,
191.
192.

193.

194.

Action against legatees and others to enforce lia-
bility for decedent’s debt.

Action may be joint or several.

Jn joint action, recovery to be apportioned.

Recovery in a several action.

Requisites to recovery in action against legatee.

Recovery; in action against a preferred legatec.

Liability of heirs and devisees for debt of decedent.

When action therefor may be brought against heirs
and devisees.

Effect of application to sell real property.

Action must be joint.

Recovery to be apportioned.

Requisites to recovery against heirs.

Requisites to recovery against devisces.

Deductions for prior recoveries.

Complaint to describe Jand descended or devised.

Judgment; when to be satisfied out of real property.

When judgment not a lien on real property alicned.

How judgment taken, when real property aliened.

Classification of debts, to be cuforced wnder this
article.

Defense, by reason of other prior or equal claims.

When such a elaim is paid.

Action not suspended hy infaney.

Liability of heir or devisee not affected where will
makes specifie provision for payment of debt.
One action, where same person is liable in different

capacities.
Next of kin defined.
1206 Report or Jone Leaisnative Commirrer

§ 170. Action cgiinst legatees and others to enforce liability for
decedent’s debt. An action may be maintained, as prescribed in
this article, against the surviving husband or wife of a decedent,
and the next of kin of an intestate, or the next of kin or legatees
of a testator to recover, to the extent of the assets paid or dis-
tributed to them, for a debt of the decedent, upon which an
action might have been maintained, against the executor or ad-
ministrator. The neglect of the creditor to present his claim to
the exeeutor or administrator, within the time prescribed by law
for that purpose, does not impair his right to maintain such an
action.

[Code, § 1837, without. change. ]

§ 171. Action may be joint or several. An action, specified in
the last section, must be brought, either jointly against the sur-
viving husband or wife, and all the legatees or all the next of kin,
as the case may be, or at the plaintiff’s election, against one of
them only. But where a legacy is received by two or more persons
jointly, they are deemed one legatee, within the meaning of each
provision of this article, relating to legatees.

[Code, § 1838, without change. ]

§ 172. In joint action, recovery to be apportioned. Where a
joint action is brought, as prescribed in the last section, the whole
sum, which the plaintiff is entitled to recover, must be apportioned
among the defendants, in proportion to the legacy or distributive
share, as the case may be, received by each of them; and the final
judgment must award, against each defendant separately, the pro-
portionate sum thus ascertained. The costs of the action, if the
plaintiff is entitled to costs, must be apportioned in like manner;
except that the expenses of serving the summons upon each defend-
ant must be taxed against him only; and one sheriff's fee, for
returning an execution, may be taxed against each defendant,
against whom any sum is awarded.

[Code, § 1839, without change. |

§ 173. Recovery in a several action. Where an action is brought
against the surviving husband or wife only, or against one only of
the next of kin, or legatees, the sum, which the plaintitf is entitled
Decepent Esrate Law AMENDMENTS 1207

to recover, cannot exceed the sum which he would have been en-
titled to recover from the same defendant, in an action brought,
as prescribed in the last section.

[Code, § 1840, without change. |

§ 174. Requisites to recovery in action against legatee. If the
action is brought against a legatee, or against all the legatees, the
plaintiff must shew, either

1. That no assets were delivered by the executor or adminis-
trator of the decedent, to the surviving husband or wife, or next
of eae or

‘ That the value of assets, so delivered, has been recovered
= some other creditor; or

3. That those assets, after payment of the expenses of admin-
istration and preferred demands, are not sufficient to satisfy the
demand of the plaintiff; in which case, he can recover only for
the deficiency.

[Code, § 1841, without change.]

§ 175. Recovery; in action against a preferred legatee. Where
some of the legatees are preferred to others, an action may be
maintained, as prescribed in the last five sections, against one or
all of figsé who are equally preferred, or equally deferred, as if
the legatees of that class were all the legatees. But where it is
brought against a preferred legatee, or a class of preferred legatees,
the plaintiff must show, in addition to the matters, with respect
to the next of kin, required by the provisions of the last section,
the same matters, with respect to each legatee, or class of legatees,
to whom the defendant or defendants are preferred.

[Code, § 1842, without change. ]

§ 176. Liability of heirs and devisees for debt of decedent. The
heirs of an intestate, and the heirs and devisees of a testator,
are respectively liable for the debts of the decedent, arising by
simple contract, or by specialty, to the extent of the estate, interest,
and right in the real property, which descended to them from, or
was effectually devised to them by, the decedent.

[Decedent estate law, § 101, without change. ]
1208 Report or Jotwr Lratsnative ComMirrreer

§ 177. When action therefor may be brought against heirs and
devisees. An action to enforce the liability declared in the pre-
ceding section [one hundred and one of the decedent estate law],
cannot be maintained, except in one of the following cases:

1. Where one year has elapsed since the death of the decedent,
and no letters testamentary, or letters of administration, upon
his estate, have been granted within the state.

2. Where eighteen months have elapsed since Jetters testamen-
tary, or letters of administration, upon his estate, were granted,
within the state.

[Code, § 1844, without change. ]

§ 178. Effect of application to sell real property. Where it
appears that, at the time of the commencement of an action to
enforce the liability declared in section one hundred and seventy-
sic of this chapter [one hundred and one of the decedent estate
law], a proceeding for the judicial settlement of the accounts of
the executor or administrator of decedent in which an order to
dispose of real property of the decedent for the payment of his
debts may be made, is pending in a surrogate’s court, having
jurisdiction, the proceedings in the action, subsequent to the com-
plaint, must be stayed by the court, until the proceeding is dis-
posed of, unless the plaintiff elects to discontinue. If an order
to dispose cf real property is granted, the action must be dis-
missed, unless the plaintiff has alleged in his complaint, or alleges
in a supplemental complaint, that real property, other than that
included in the decree, descended or was devised to the defendants.
If the plaintiff elects to proceed under such an allegation, he is
entitled to a preference in payment, out of the real property, with
respect to which the allegation is made; but he cannot share, as a
creditor, in the distribution of the money, arising from the diz
posal of the real property, described in the order, and the judg
ment in the action does not charge, or in any way affeet, that
property.

[Code, § 1845, without change. ]

§ 179. Action must be joint. An action against heirs or devisces,
brought as prescribed in the last three sections [section one hun-
dred and one of the decedent estate law and the last two scetions
of this act], must be brought jointly against all the heirs, to whom
Decevenr Esrare Law AMENDMENTS 1209

any real property descended from the decedent, or jointly against
all the devisees, as the case may be.

[Code, § 1846, without change. ]

§ 180. Recovery to be apportioned. In such an action, the sum,
which the plaintiff is entitled to recover, for damages and costs,
must be apportioned among all the defendants, in proportion to
the value of the real property descended to each heir, or devised
to each devisee, as the case may be, as prescribed in section [1539]
one hundred and seventy-two of this [act] chapter, for a similar
apportionment among legatees or next of kin, in proportion to
the assets received by them. The final judgment must, in like
manner, award against cach defendant the proportionate sum,
with which he is chargeable.

[Code, § 1847, without change. ]

§ 181. Requisites to recovery against heirs. Where the action is
brought against heirs, the plaintitf must show, either

1. That the decedent’s assets, if any, within the state were
not sufficient to pay the plaintifi’s debt, in addition to the ex-
penses of administration, and debts of a prior class; or

2. That the plaintiff has been unable, or will be unable, with
due diligence, to collect his debt, by proceedings in the proper sur-
rogate’s court, and by action against the executor or adminis-
trator, and against the surviving husband or wife, legatees, and
next of kin.

The executor’s or administrator’s account, as rendered to, and
settled by, the surrogate, may be used as presumptive evidence
of any of the facts, required to be shown by this section.

[Code, § 1848, without change. ]

§ 182. Requisites to recovery against devisees. Where the action
is brought against devisees, the plaintiff must show, in addition
to the matters specified in the last section, cither that the real
property of the decedent, which descended to his heirs, was not
sufficient to pay the plaintiff's debt, or that the plaintiff has been
unable, or will be unable, with due diligence, to collect his debt
by an action against the heirs.

[Code, § 1849, without change. ]
1210 Revorr or Joinr Lecisuative ComMitrrEer

§ 183. Deductions for prior recoveries, Where the assets, appli-
eable to the plaintiffs debt, were sufficient to pay a part thereof,
or a part thereof has been collected from the executor or adminis-
trator, or from the surviving husband or wife, next of kin, or lega-
tees, the plaintiff can recover only for the residue, remaining
unpaid or uneollceted; and if the action is against devisees, he
can reeover only for the residue, which the real estate descended,
or the amount of his recovery against the heirs, is insufficient to
discharge.

“[Code, § 1850, without change. ]

§ 184. Complaint to describe land descended or devised. The
complaint must describe, with common certainty, the real property,
descended or devised to the defendaut; and must specify its
value.

[Code, § 1851, without change. ]

§ 185, Judgment; when to be satisfied out of real property. If it
appears that any of the real property, which descended or was
devised to a defendant, had not been aliened bv him at the time
of the commencement of the action, the final judgment must
direct that the debt of the plaintiff, or the proportion thereof
which he is entitled to recover against that defendant, be collected
out of that real property. Such a judgment is preferred, as a
lien upon that property, to a Judgment obtained against the defend-
ant, for his individual debt or demand.

[Code, § 1852, without change. |

§ 186. When judgment not a lien on real property aliened. But
a judgment, rendered as prescribed in the last section, does not
bind, and the execution thereupon cannot in any way affect, the
title of a purchaser, in good faith and for value, acquired before
a notice of the pendency of the action is filed, or final judgment
is entered, and the judgment-roll filed.

[Code, § 1858, without change. ]

§ 187. How judgment taken, when real property aliened. Tf it
appears that, before the commencement of the action, or afterwards
and before the filing of a notice of the pendeney of the action, the
defendant aliencd the real property deseended or devised to him,
or any part thereof, the plaintiff may, at his election, take a final
Decepent Esrare Law AMENDMENTS 1211

judgment against him for the value of the property so aliened, or
so much thereof as may be necessary, as in an action for the defend:
ant’s own debt.

[Code, § 1854, without change. ]

§ 188. Classification of debts, to be enforced under this article.
Where the surviving husband or wife, next of kin, legatces, heirs,
or devisees, are liable for demands against the decedent, as pre-
seribed in this article, [or section one hundred and one of the
decedent estate law,J they must give preference in the payment
thereof, and they are so liable therefor, in the order prescribed by
law, for the payment of debts by an executor or administrator.
Preference of payment cannot be given to a demand, over another
of the same class, except where a similar preference by ai execu-
tor or administrator is allowed by law. The commencement of an
action, under any provision of this article, [or section one hundred
and one of the decedent estate law.J does not entitle the plaintiff's
demand to preference over another of the same class, except as
otherwise specially prescribed by law.

[Code, § 1855, without change of substance. Section 101 has
been transferred to this article as § 176.]

§ 189, Defense, by reason of other prior or equal claims. Where
it appears, in an action brought as prescribed in this article, that
there are unsatisfied demands against the decedent’s estate, of a
class prior to that of the plaintiff’s demand, the defendant is
entitled to judgment, if the value of the property, which was
received, devised, or inherited, as the case may be, by the class
to which he belongs, does. not exceed the amount of the valid
demands of a prior class. If it exceeds the amount of those
demands, the judgment against the defendant cannot exceed such
a proportion of the plaintiff’s demand, as the total amount of the
valid demands of his class bears to the excess.

[Code, § 1856, without change. ]

§ 190. When such a claim is paid. Where a defendant, or a
person belonging to his class, has paid a demand against the
decedent’s estate, of a class prior to that of the plaintiff's demand,
or has paid a demand of the same class, the amount of the demand
so paid must be estimated, in ascertaining the amount to be
recovered, as if it was outstanding and unpaid.

[Code, § 1857, without change. ]
1212 Report or Jom? Lecaistarive ComMirtrr

§ 191. Action not suspended by infancy. An action against heirs
or devisecs, brought as prescribed in this article, is not delayed,
nor is the remedy of the plaintiff suspended, by reason of the
infancy of any of the parties; except that an execution shall not
be issued against an infant heir or devisee, until the expiration of
one year after final judgment is rendered, and the judgment-roll
filed.

[Code, § 1858, without change. ]

§ 192. Liability of heir or devisee not affected where will makes
specific provision for payment of debt. [The preceding section and
article two of title three of chapter fifteen of the code of civil pro-
cedure do] This article does not affect the liability of an heir or
devisee, for a debt of a testator, where the will expressly charges
the debt exclusively upon the real property descended or devised,
or makes it payable exclusively by the heir or devisee, or out of
the real property descended or devised, before resorting to the
personal property, or to any other real property descended or
devised.

[Decedent estate law, § 102, with reference changed to conform
to the transfer of section 101 to this article. ]

§ 193. One action, where same person is liable in different capac-
ities. Where a person, who takes real property of a decedent by
devise, and also by descent; or who takes personal property as
next of kin, and also as legatee; or who takes both real and
personal property in either capacity; or who is exccutor or ad-
ministrator, and also takes in either of the before mentioned
capacities; would be liable in one capacity, for a demand against
the deecdent, after the exhaustion of the remedy against him in
another capacity; the plaintiff, in anv action to charge him,
which can be maintained, without joining with him any other
person, except a person whose liability is in all respects the same,
may recover any sum, for which he is liable, although the remedy
against him in another capacity was not exhausted. But this
section does not inercase the sum, which the plaintiff is entitled to
recover against him, in the capacity in which he is actually liable;
nor does it charge a defendant individually, who is liable only in
a representative capacity. ;

[Code, § 1860, without change. ]
Decrpvent Esrare Law Amenduent's 1218

§ 194. Next of kin defined. The term “ next of kin,” as used in
this article [title], includes all those entitled, under the pro-
visions of law relating to the distribution of personal property,
to share in the unbequeathed assets of a decedent, after payment
of debts and expenses, other than a surviving husband or wife.

[Code, § 1870, without change. ]

ARTICLE 8

ACTION TO ESTABLISH A WILL OR CONSTRUE
A DEVISE

Section 200. When action to establish a will may be brought.
201. Judgment, that will be established.
202. Judgment admitting the will to probate.
203. Contents of judgment; surrogate’s duty.
204. Proof of lost will in certain cases.
205. Action to determine validity, construction or effect
of devise.
206. Retrospective effect of this article.

§ 200, When action to establish a will may be brought. An
action to procure a judgment, establishing a will, may be main-
tained, by any person interested in the establishment thereof, in
either of the following cases:

1. Where a will of real or personal property, or both, has been
executed, in such a manner and under such circumstances, that
it might, under the laws of the state, be admitted to probate in
a surrogate’s court; but the original will is in another state or
country, under such circumstances, that it cannot be obtained for
that purpose; or has heen lost or destroved, hy accident or design,
before it was duly proved and recorded within the state.

2. Where a will of personal property made by a person, who
resided without the state, at the time of the execution thereof,
or at the time of his death, has been duly executed, according to
the laws of the state or country in which it was executed, or in
which the testator resided at the time of his death, and the ease
is not one, where the will can be admitted to probate in a surro-
gate’s court, under the laws of the state.

[Code, § 1861, without change. ]
1214 Report or Jornt Lecistarive Commirrig

§ 201. Judgment, that will be established. If, in such an action,
the facts necessary to establish the validity of the will, as pre
scribed in the last section, are satisfactorily proved, final judgment
must be rendered, establishing the will accordingly. ‘But where
the will of a person, who was a resident of the state at the time
of his death, is established as prescribed in the last section, the
judgment establishing it dues not affect the construction or validity
of any provision contained therein; and such a question arising
with respect to any provision, must be determined in the same
action, or in another action or a special proceeding, as the case
requires, as if the will was executed within the state.

[Code, $ 1862, without change. ]

§ 202. Judgment admitting the will to probate. Where the
parties to the action, who have appeared or have been duly sum-
moned, include all the persons who would be necessary parties to a
special proceeding, in a surrogate’s court, for the probate of the
same will and the grant of letters thereupon, if the circumstances
were such that it could have been proved in a surrogate’s court;
the final judgment, rendered as prescribed in the last section, must
direct, that an exemplified copy thereof be transmitted to the sur-
rogate having jurisdiction, and be recorded in his oftice; and that
letters testamentary, or letters of administration with the will
annexed, be issued thereupon from his court, in the same manner,
and with like effect, as upon a will duly proved in that court.

[Code, § 1863, without change. ]

§ 203. Contents of judgment; surrogate’s duty. A copy of the
will so established, or, if it is lost or destroved, the substanee
thereof must be incorporated into a final judgment. rendered as
prescribed in the last section; and the surrogate must record the
sume, and issue letters thereupon, as dirceted in the judgment.

[Code, § 1864, without change. ]

§ 204. Proof of lost will in certain cases. But the plaintiff is
not entitled to a judgment, establishing a lost or destroved will,
as preseribed in this article, unless the will was in existence at
the time of the testator’s death, or was fraudulently destroyed in
his lifetime; and its provisions are clearly and distinetly proved
Decevenr Estate Law AMENDMENTS 1915

by at least two credible witnesses, a correct copy or draft being
equivalent to one witness.

[Code, § 1865, without change. ]

§ 205. Action to determine validity, construction or effect of
devise. The validity, construction, or effect, under the laws of the
state, of a testamentary disposition of real property situated within
the state, or of an interest in such property, which would descend
to the heir of an intestate, may be determined, in an action brought
for that purpose, in like manner as the validity of a deed, purport-
ing to convey land, may be determined. The judgment in such
an action may perpetually enjoin any party from setting wn or
from impeaching the devise, or otherwise making any claim in
contravention to the determination of the court, as justice réquires.
But this section does not apply to a case, where the question in
controversy is determined by the decree of a surrogate’s court,
duly rendered upon allegations for that purpose, as prescribed
by law [in article first of title third of chapter eighteenth of this
act], where jurisdiction of the plaintiff was duly [cited] acquired
in the special proceeding in the surrogate’s court, before the com-
mencement of the action.

[Code, § 1866, without change of substance. ]

§ 206, Retrospective effect of this article. The provisions of
this article apply as well to wills made before, as to those made
after, this article takes effect.

[Code, § 1867, without change. ]

ARTICLE 9
RECEIVERS

Section 210. Receiver of decedent’s estate.

g 910. Receiver of decedent’s estate. Where the estate of a
decedent has been brought under the jurisdiction of the supreme
court, by an action for partition or distribution, or for the con-
struction or establishment of a will, the court may, upon the death
of the sole surviving exeentor, appoint a receiver of the cstate,
1216 Report or Jomnt Learsnative Commirrer

pending the action, wpun such terms and conditions, and upon
such notice to the parties interested, as the court directs, and upon
such security, if any, as to the court seems proper. For the pur-
pose of carrying into effect the judgment and orders of the court
in relation to the estate, a receiver so appointed is the successor
in interest of the surviving executor; and has, subject to the direc
tion of the court, the like power, as an administrator with the
will annexed.

[Code, § 1869, without change. ]

§ 2. Article five of such chapter and sections one hundred and
thirty and one hundred and thirty-one thereof are hereby renum-
bered article ten and sections two hundred and fifty and two hun-
dred and fifty-one, respectively.

§ 3. Sections one hundred and one and one hundred and two
of such chapter are hereby repealed. Sections eight hundred and
forty-one-b, eighteen hundred and fourteen to eighteen hundred
and thirty-six, both inclusive, eighteen hundred and thirty-six-a,
eighteen hundred and thirty-seven to eighteen hundred and forty-
two, both inclusive, eighteen hundred and forty-four to. eighteen
hundred and fifty-eight, both inclusive, eighteen hundred and
sixty to eighteen hundred and sixty-seven, both inclusive, eigh-
teen hundred and sixty-nine to eighteen hundred and seventy, both
inclusive, nineteen hundred and two to nineteen hundred and five,
both inclusive, of the code of civil procedure, and all acts amenda-
tory of such sections, are hereby repealed.

[Code, § 1822, is repealed without re-enactment. It has been
superseded by Code, § 2681, which is included in the surrogate
court act. ]

§ 4. This act shall take effect April fifteenth, nineteen hundred
and twenty.
EXECUTIVE LAW AMENDMENTS

39 [1217]
EXECUTIVE LAW AMENDMENTS

AN ACT to amend the executive law, generally.

The People of the State of New York, represented in Senate
and Assembly, do enact as follows:

Section 1. Article six of chapter twenty-three of the laws of
nineteen hundred and nine, entitled “An act in relation to execu-
tive officers, constituting chapter eighteen of the consolidated
laws,” is hereby amended by adding thereto two new sections, to
be sections sixty-nine and sixty-ninea, to read as follows:

§ 69. When costs payable to relator. Where security is [so]
given by relator in an action brought by the attorney-general on
the relation or information of a person having an interest all
costs and disbursements taxed in favor of the plaintiff shall be
payable to the relator.

[Code § 1986, last sentence, without change of substance. ]

§ 69-a. Validating appearance of attorney-general in an action to
foreclose a mortgage. In all cases where, prior to September first,
nineteen hundred and eight, the attorney-general shall have ap-
peared in behalf of the people of this state, in an action for the
foreclosure of a mortgage, such appearance shall be as valid and
effectual as though chapter two hundred and eighty-four of the
laws of nineteen hundred and eight had been in force at the time
of such appearance, whether such actions were pending or con-
eluded when such chapter took effect, anything in such chapter
to the contrary notwithstanding, provided, however, that nothing
herein contained shall affect the right or title of any person,
claiming such real property under letters patent issued by the
people of the state, for a valuable consideration before [this act
shall take effect] September first, nineteen hundred and twelve.

[Code § 1627, subd. 3, without change of substance. ]

§ 2. Subdivision three of section sixteen hundred and twenty-
seven, and the last sentence of section nineteen hundred and eighty-
six of the code of civil procedure, and all acts amendatory of such
mentioned parts of sections, are hereby repealed.

§ 3. This act shall take effect April fifteenth, nineteen hun-

dred and twenty.
[1219]
GENERAL CONSTRUCTION LAW
AMENDMENTS

1221;
GENERAL CONSTRUCTION LAW AMENDMENTS

AN ACT to amend the general construction law, generally.

The People of the State of New York, represented in Senate
and Assembly, do :nact as follows:

Section 1. Chapter twenty-seven of the laws of nineteen hun-
dred and nine, entitled “ An act relating to construction, constitut-
ing chapter twenty-two of the consolidated laws,” is hereby
amended by inserting in article two thereof the following sections,
to be sections eleven-a, sixteen-a, eighteen-a, twenty-a, twenty-b,
twenty-five-a, twenty-six-a, twenty-eight-a, thirty-three-a, thirty-
seven-a, forty-six-a and fifty-threea, to read, respectively, as
follows:

§ 1l-a. Action. [The word] “Action” [[as used in the new
revision of the statutes,] when applied to judicial proceedings,
signifies an ordinary prosecution in a court of justice, by a party
against another party, for the enforcement or protection of a right,
the redress or prevention of a wrong, or the punishment of a
public offense. Actions are of two kinds: civil and criminal.

[Code, §§ 3333, 3335, without change, except as indicated. ]

§ 16-a. Civil action. The term “ civil action ” means any action
except when prosecuted in the name of the people of the state of
New York, as plaintiffs, against a party charged with crime.

[Code, § 3337, in connection with Criminal Code, § 6.]

§ 18-a. Criminal action. A “criminal action” is prosecuted in
the name of the people of the state of New York, as plaintiffs,
against a party charged with crime.

[Code, § 3336, adapted to conform to § 6 of Criminal Code.

§ 20-a, Distinct parcel. [A] “Distinct parcel” of real prop-
erty is a part of the property which is or may be set off by
boundary lines as distinguished from an undivided share or
interest therein.

[Code, § 3343, subdivision 16, without change. ]

[1223
1224 Report or Joint LeaisLativE COMMITTEE

§ 20-b. Ejectment. “ Ejectment” as describing an action
therefor, means an action to recover the immediate possession of
real property.

[Code, § 3343, subdivision 20, in part, without change of sub-
stance. ]_

§ 2h-a, Injury to property. [An] “Injury to property” is an
actionable act, whereby the estate of another is lessened, other
than a personal injury, or the breach of a contract.

[Code, § 3348, subdivision 10, without change. ]

§ 26-a, Judgment creditor. [The term,] “ Judgment creditor ”
signifies the person who is entitled to collect or otherwise enforce,
in his own right, a judgment for a sum of money, or directing the
payment of a sum of money.

[Code, § 3343, subdivision 13, without change. |
; gs

§ 28-a, Mandate. [The word,] “ Mandate” includes a writ,
process or other written direction, issued pursuant to law, out of
a court, or made pursuant to law, by a court, a judge or person
acting as a judicial officer, and commanding a court, board or
other body, or an officer or other person, named or otherwise
designated therein, to do or to refrain from doing an act therein
specified.

[Code, § 3348, subdivision 2, without change of substance. ]

§ 33-a. Notify. [The word] “ Notify” as used with respect
to procuring the attendance of a juror, is equivalent to the word
“summon ” as used in the like connection, in the [same] con-
stitution and laws of the state.

[Code, § 3343, subdivision 19, in part. ]

§ 387-a. Personal injury. [A] “ Personal injury” includes
libel, slander, criminal conversation, seduction and malicious
prosecution; also an assault, battery, false imprisonment, or other
actionable injury to the person either of the plaintiff, or of
another.

[Code, § 3348, subdivision 9, without change. ]
GENERAD Construction Law AMENDMENTS 1225

§ 46-a. Special proceeding. Every [other] prosecution by a
party [for either of the purposes specified in the last section]
against another party in a court of justice which is not an action
is a special proceeding.

[Code, § 3334, withont change of substance. ]

§ 538-a, Trial juror; trial jury. The terms “ trial juror” and
“trial jury”, are respectively equivalent to the terms “ petit

juror”, and “ petit jury ”, as used in the constitution and laws
of the state.

[Code, § 3348, subdivision 19, part, without change of sub-
stance. ]

§ 2. Section twenty-six of such chapter is hereby amended to
read as follows:

§ 26. Judge. The term “ judge” includes every judicial officer
authorized, alone or with others, to hold or preside over a court of
record. I¢ also includes a justice, surrogate, recorder, justice of
the peace or other judicial officer authorized or required to act or
prohibited from acting in or with respect to the matter or thing
referred to in the provision wherein that word is used.

[The new matter is from Code, § 3348, subdivision 3.]

§ 3. Sections thirty-three hundred and thirty-three to thirty-
three hundred and thirty-seven, both inclusive, and subdivisions
two, three, nine, ten, thirteen, sixteen and nineteen of section
thirty-three hundred and forty-three of the code of civil procedure,
and all acts amendatory thereof, are hereby repealed.

§ 4. This act shall take effect April fifteenth, nineteen hun-
dred and twenty.
GENERAL CORPORATION LAW
AMENDMENTS

[1227]
GENERAL CORPORATION LAW AMENDMENTS

AN ACT to amend the general corporation law, in relation to
actions by and against foreign corporations.

The People of the State of New York, represented in Senate
and: Assembly, do enact as follows:

Section 1. Article two of chapter twenty-eight of the laws of
nineteen hundred and nine, entitled “An act relating to corpora-
tions generally, constituting chapter twenty-three of the consoli-
dated laws,” is hereby amended by adding thereto three new
sections, to be sections forty-five, forty-six and forty-seven thereof,
to read, respectively, as follows:

§ 45. Action by foreign corporation. An action may be main-
tained by a foreign corporation, in like manner, and subject to
the same regulations, as where the action is brought by a domestic
corporation, except as otherwise specially prescribed by law. But
a foreign corporation cannot maintain an activa, founded upon
an act, or upon a liability or obligation, express or implied, arising
out of, or made and entered into in consideration of, an act, which
the laws of the state forbid a corporation or association of individ-
uals to do, without express authority of law. This section does
not.affect the validity of a meeting of the stockholders.or directors
of a foreign corporation, held within the state, where such a meet-
ing is authorized by the laws of the state, country, or government
by or under which the corporation is created; or of an act, done
at such a meeting, which is not in conflict with the same laws, or
the laws of the state.

[Code, § 1779, without change. Under the code definition, the
section does not apply to a corporation of the U. 8. (national
bank) ; but as a national bank may be sued as a domestic corpora-
tion, there is no change in effect if the section applies to such
corporations. |

§ 46, Action against foreign corporation. An action against a
foreign corporation may be maintained by a resident of the state,
or by a domestic corporation, for any cause of action.

[Code, § 1780, first sentence, without change. See note to

45 ra.
582, SUD ] [1229]
1230 Report or Jotnt Leaisiarive Committers

§ 47, Action against foreign corporation by another foreign cor-
poration or non-resident. An action against a foreign corporation
may be maintained by another foreign corporation, or by a non-
resident, in one of the following cases only:

1. Where the action is brought to recover damages for the
breach of a contract made within the state, or relating to property
situated within the state, at the time of the making thereof.

2. Where it is brought to recover real property situated within
the state, or a chattel, which is replevied within the state.

3. Where the cause of action arose within the state, except
where the object of the action is to affect the title to real property
situated without the state.

4. Where a foreign corporation is doing business within this
state.

Within the meaning of this section, a foreign corporation shall
not include a corporation located in this state and created by or
under the laws of the United States.

_ [Code, § 1780, last part, without change. The italicized matter
confines the application of the section as under code. }

§ 2. Sections seventeen hundred and seventy-nine and seventeen
hundred and eighty of the code of civil procedure and all acts
amendatory thereof are hereby repealed.

§ 3. This act shall take effect April fifteenth, nineteen hun-
dred and twenty.
INSURANCE LAW AMENDMENTS

[1231]
INSURANCE LAW AMENDMENTS

AN ACT to amend the insurance law, in relation to the use of
searching company’s abstracts.
SORA Sea's SR RN, SS
The People of the State of New York, represented in Senate
and Assembly, do enact as follows:

Section 1. Chapter thirty-three of the laws of nineteen hun-
dred and nine, entitled “:An act in relation to insurance corpora-
tions, constituting chapter twenty-eight of the consolidated laws,”
is hereby amended by inserting therein a new section, to be sec-
tion one hundred and eightv-two-a, to read as follows:

§ 182-a. Use of title company’s abstracts in actions and proceed-
ings. Searches affecting property situate in any county in which
the office of county clerk or register is a salaried one, when made
and certified to by title insurance, abstract or searching companies,
organized and doing business under the laws of this state, may be
used in all aclions or special proceedings in which official searches
may be used, in place of and with the same legal effect as such
official searches.

[Code § 8256, part of last sentence, without change. Included
by Board in Insurance Law, § 1826.]

§ 2. The last sentence of section thirty-two hundred and fifty-
six of the code of civil procedure, so far as it authorizes the use
of title company searches as evidence, is hereby repealed.

§ 3. This act shall take effect April fifteenth, nineteen hun-
dred and twenty.

[1233]
JOINT STOCK ASSOCIATION LAW
AMENDMENTS

[1235]
JOINT STOCK ASSOCIATION LAW AMEND-
MENTS

AN ACT to amend the joint-stock association law, generally, an]
changing the name thereof.

The People of the State of New York, represented in Senate
and Assembly, do enact as follows:

Section 1. The title of chapter thirty-four of the laws of nine-
teen hundred and nine, entitled “ An act in relation to joint-stock
associations, constituting chapter twenty-nine of the consolidated
{aws,” is hereby amended to read as follows: ‘ An act in relation
to [joint-stock] associations, constituting chapter twenty-nine of
the consolidated laws,”

§ 2. The title of such chapter immediately preceding the
schedule of articles 1s hereby amended to read as follows:

[Joint-Stock] General Associations Law.

§ 3. Section one of such chapter is hereby amended to read as
follows:

§ 1. Short title. This chapter shall be known as the [“ Joint-
Stock Association Law.” } “General Associations Law.”

§ 4. The title of article two of such chapter is hereby amended
to read as follows:

[Generar Provisions] Joir-Srock AssocratIons.

§ 5. Article two of such chapter is hereby amended by adding
at the end thereof three new sections, to be sections nine, ten and
eleven, to read, respectively, as follows:

§ 9. Receiver of joint-stock association. Section ten of this
chapter [eighteen hundred and nine of the code of civil pro-
cedure] and sections three hundred and six and three hundred
and seven of the general corporation law apply to an action or a
special proceeding, against a joint-stock association created by or
under the laws of the state, or a trustee, director, or other officer

thereof; or against a joint-stock association created by or under
[1237]
1238 Report or Joint Leaisiative CoMMITTEE

the laws of another state, government, or country, or a trustee,
director, or other officer thereof, where the association does busi-
ness within the state, or has, within the state, a business agency
or a fiscal agency, or an agency for the transfer of its stock.

[Code, § 1812, without change. ]

§ 10. Injunction against joint-stock association. An injunction
order, suspending the general and ordinary business of a joint-
stock association, consisting of seven or more persons, or suspend-
ing from office, or restraining from the performance of his duties,
a trustee, director, or other officer thereof, can be granted only by
the court, upon notice of the application therefor, to the proper
officer of the association, or to the trustee, director, or other officer
enjoined. If such an injunction order is made, otherwise than
as prescribed in this section, it is void.

[Code, § 1809, without change. ]

§ 11. Misnomer of party not available. Where an action, au-
thorized by a law of the state, is brought against one or more
persons, as stockholders of a joint-stock association, an objection
to any of the proceedings cannot be taken, by a person properly
made a defendant in the action, on the ground that the plaintiff
has joined with him, as a defendant in the action, a person, whose
name appears on the stock-books of the association, as a stockholder
thereof, by the name so appearing; but who is misnamed, or dead,
or is not liable for any cause. In such a case, the court may,
at any time before final judgment, upon motion of either party,
-amend the pleadings and other papers, without prejudice to the
previous proceedings, by substituting the true name of the person
intended, or by striking out the name of the person who is dead,
or not liable, and, in a proper case, inserting the name of his
representative or successor.

[Code, § 1813, without change. ]

§ 6. Such chapter is hereby amended by inserting therein a new
article, to be article three, to read as follows:
Joint Stock Assocrarton Law AMENDMENTS 1239

ARTICLE 3

ACTION OR PROCEEDING BY OR AGAINST
UNINCORPORATED ASSOCIATIONS

Section 12. Action or proceeding by unincorporated association.
13. Action or proceeding against unincorporated asgo-
ciation.
14. When action not to abate.
15. Effect of judgment; execution thereupon.
16. Subsequent action against members.
‘17. Article permissive; effect upon statute of limitations.

§ 12. Action or proceeding by unincorporated association. An
action or special proceeding may be maintained, by the president
or treasurer of an unincorporated association, consisting of seven
or more persons, to recover any property, or upon any cause of
action, for or upon which all the associates may maintain such
an action or special proceeding, by reason of their interest or
ownership therein, either jointly or in common. An action may
likewise be maintained by such president or treasurer to recover
from one or more members of such association his or their propor-
tionate share of any moneys lawfully expended by such association
for the benefit of such associates, or to enforce any lawful claim
of such association against such member or members.

[Code, § 1919, first two sentences, without change. ]

-§ 13, Action or proceeding against unincorporated association.
An action or special proceeding may be maintained, against the
president or treasurer of such an association, to recover any prop-
erty, or upon any cause of action, for or upon which the plaintiff
may maintain such an action or special proceeding, against all the
associates, by reason of their interest or ownership, or claim of
ownership therein, either jointly or in common, or their liability
therefor, either jointly or severally. Any partnership, or other
company of persons, which has a president or treasurer, is deemed
an association within the meaning of this section.

[Code, § 1919, last two sentences, without change. ]
1240 Report oF Joint Lzeaisuative Commirrrs

§ 14. When action not to abate. The death or legal incapacity
of a member of the association does not affect an action or special
proceeding, brought as prescribed in the last two sections. If the
officer, by or against whom it is brought, dies, is removed, resigns,
or becomes otherwise incapacitated, during the pendency thereof,
the court must make an order, directing it to be continued by or
against his successor in office, or any other officer, by or against
whom it might have been originally commenced.

[Code, § 1920, without change. ]

§ 15. Effect of judgment; execution thereupon. In such an
action, the officer against whom it is brought cannot be arrested ;
and a judgment against him does not authorize an execution to be
issued against his property, or his person; nor does the docketing
thereof bind his real property, or chattels real. Where such a
judgment is for a sum. of money, an execution issued thereupon
must require the sheriff to satisfy the same, out of any personal
or real property belonging to the association, or owned, jointly or
in common, by all the members thereof.

[Code, § 1921, without change. ]

§ 16. Subsequent action against members. Where an action has
been brought against an officer, or a counterclaim has been made,
in an action brought by an officer, as prescribed in this article
[the last three sections], another action, for the same cause, shall
not be brought against the members of the association, or any of
them, until after final judgment in the first action, and the return,
wholly or partly unsatisfied or unexecuted, of an execution issued
thereupon. After such a return, the party in whose favor the
execution was issued, may maintain an action, as follows:

1. Where he was the plaintiff, or a defendant recovering upon
a counterclaim, he may maintain an action against the members
of the association, or, in a proper case, against anv of them, as
if the first action had not been brought, or the counterclaim had
not been made, as the case requires; and he may recover therein,
as part of his damages, the costs of the first action, or so much
thereof, as the sum, collected by virtue of the execution, was
insufficient to satisfy.

2. Where he was a defendant, and the ease is not within sub
division first of this section, he may maintain an action, to recover
Joint Stock Association LAw AMENDMENTS 1241

the sum remaining uncollected, against the persons who composed
the association, when the action against him was commenced, or
the survivors of them.

But this section does not affect the right of the person, in whose
favor the judgment in the first action was rendered, to enforce
a bond or undertaking, given in the course of the proceedings
therein. ‘Section eleven of this chapter [1818 of this act] applies
to an action brought, as prescribed in [the last] this section [but
one} against the members of any association, which keeps a book
for the entry of changes in the membership of the association, or
the ownership of its property; and to each book so kept.

[Code, §§ 1922, 1924, without change. ]

§ 17. Article permissive; effect upon statute of limitations. This
article does not prevent an action from being brought by or against
all the members of an association, except as prescribed in the last
section. Where an action is brought against the members of the
association, as prescribed in subdivision first of the last section,
the time between the commencement of the action by or against
the officer, and the return of the first execution issued upon the
final judgment rendered therein, is not a part of the time limited
by law, for the commencement of the second action.

[Code, § 1923, without change. ]

§ 7. Article three of such chapter is hereby renumbered article
four thereof.

§ 8. Sections eighteen hundred and nine, eighteen hundred and
twelve, eighteen hundred and thirteen, nineteen hundred and nine-
teen to nineteen hundred and twenty-four, both inclusive, of the
code of civil procedure and all acts amendatory thereof are hereby
repealed.

§ 9. This act shall take effect April fifteenth, nineteen hun-
dred and twenty.
JUDICIARY LAW AMENDMENTS

[1243]
JUDICIARY LAW AMENDMENTS

AN ACT to amend the judiciary law, generally.

The People of the State of New York, represented in Senate
and Assembly, do enact as follows:

Section 1. Chapter thirty-five of the laws of nineteen hundred
and nine, entitled “An act in relation to the administration of
Justice, constituting chapter thirty of the consolidated laws,” is
hereby amended by inserting therein two new sections to be sec-
tions two hundred and fifty-five-a and two hundred and fifty-five-b,
to read as follows:

§ 255-a, Penalty for clerk’s neglect to docket or furnish tran-
script of judgment. A clerk of a court who omits, as soon as prac-
ticable, to docket a judgment required to be docketed, or to furnish
a transcript of a judgment, so docketed in his office, [as pre-
scribed in the last two sections,] forfeits to the person aggrieved,
two hundred and fifty dollars, in addition to the damages sus-
tained by reason of the omission.

[Code, § 1248, without change of substance. Included by
Board in county law, § 179-h.]

’ § 255-b, Dockets of clerks to be public. A docket-book, kept by
a clerk of a court, must be kept open, during the business hours
fixed by law, for search and examination by any person.

[Code, § 1249, without change of substance. Included by
Board in judiciary law, § 286.]

-§ 2. Section five hundred and thirty-seven of such chapter is
hereby amended to read as follows:

§ 537. Sheriff must notify jurors drawn from third box and make
return. The sheriff must forthwith notify each person drawn as
a trial juror from the box containing names of jurors residing in
the city or town where a trial term of a court is appointed to be
held, and make a return, as prescribed by law [in title fifth of

chapter ten of the code of civil procedure], where talesmen are
[1245]
1246 Report or Joint LecisLativE CoMMITTEER

required to attend. The persons so notified shall have the duties
and liabilities of talesmen as prescribed by law.

[This section as amended is intended to cover the provisions of
Code, § 1055, which reads as follows: ‘“‘ The provisions of title
five of this chapter apply to each person notified by the sheriff as
provided by section five hundred and thirty-seven of the judiciary
law.” ]

§ 3. Such chapter is hereby amended by inserting therein a
new section, to be section five hundred and thirty-eight-a, to read
as follows:

§ 538-a, Sheriff must notify jurors drawn for struck jury. The
sheriff must notify the persons whose names are contained in the
list of gurors drawn to serve as a struck jury; and must return
the names of those notified, to the term, at which they are required
to attend, as prescribed by law for notifying and returning ordi-
nary trial jurors.

[Code, § 1066, without change of substance. ]

§ 4. Such chapter is hereby amended by inserting therein a
new article, to be article eighteen-a thereof, to read as follows:

ARTICLE 18-A.-
JURORS GENERALLY

Section 740, Limitation upon issuance of venire.
741. Preparation of ballots for trial term.
742. Drawing jury.
743. Disposition of ballots; first and second boxes.
744. New jury may be drawn while first is empaneled.
745. Talesmen; jurors for third box.
746, Additional talesmen.
747. Who to act where sheriff is party.
748. Duty of sheriff and of talesmen.
749. Jury competent although not in original panel,
749-a, Party obtaining order for a struck jury to give
eight days’ notice.
749-b. Mode of striking jury.
Jupiciary Law AMENDMENTS 1247

Section 749-c. Jurors so drawn to be notified to attend.

749-d. Provision where clerk or commissioner of jurors
is interested.

749-e. Party applying for special jury to pay expenses.

749-£. Copy of order for foreign jury to be delivered to
sheriff.

749-g. Mode of obtaining a foreign jury.

749-h. Presentation of claims by jurors and disposition
of unclaimed fees.

749-1, Application of article.

§ 740. Limitation upon issuance of venire. A venire to procure
jurors cannot be issued in a civil action, brought in a court of
record, except as specially prescribed by law.

[Code, § 1191, without change. ]

§ 741. Preparation of ballots for trial term. At the opening of
a term of a court of record at which issues of fact are to be tried
by jury, the clerk must cause ballots, uniform, as nearly as may
be, in appearance, to be prepared by writing the name of each
person, returned to the term as a trial juror, with his proper
. additions, on a separate piece of paper. He must roll up or fold
each ballot, in the same manner, as nearly as may be, so as to
resemble the others, and so that the name is not visible. The
ballots must be deposited in a sufficient box, from which they must
be drawn[f, as prescribed in this article].

[Code, § 1163, without change of substance. ]

§ 742. Drawing jury. When an issue of fact, to be tried by a
jury, is brought to trial, the clerk, under the direction of the
court, must openly draw, out of the box, as many of the ballots,
one after another, as are sufficient to form a jury. Before the
first ballot is drawn, the box must be closed and well shaken, so
as thoroughly to mix the ballots; and the clerk must draw each
ballot, without seeing the name written on any of them, through
an aperture, made in the lid of the box, large enough only to admit
his hand conveniently.

[Code, $§ 1164, 1165, without change. ]
1248 Report or Jornt Lecisuative Commirrer

§ 743. Disposition of ballots; first and second boxes. The ballots,,
containing the names of the jurors so sworn, must be then de
posited in another box, and there kept, apart from the other ballots,
until that jury is discharged. After that jury is discharged, the
ballots containing their names must be again rolled up or folded,
as prescribed in section seven hundred and forty-one [1163] of
this chapter [act], and returned to the box from which they
were first taken; and the same course must be pursued, as often
as an issue is brought to trial by a jury. The ballot, containing
the name of a juror, who is absent, when his name is drawn or
called, or is set aside, or excused from serving on that trial, must
be again rolled up or folded, in the same manner as before, and
returned to the box, containing the undrawn ballots, as soon as
the jury is sworn.

[Code, §§ 1167-1169, without change. |

§ 744. New jury may be drawn while first is empanelled. If an
issue is brought to trial by a jury, while a jury is empanelled in
another cause, at the same term, and not then discharged, the court
may order a jury, for the trial of that issue, to be drawn, out of the
box containing the ballots then undrawn; but, in any other case,
the ballots, containing the names of all the trial jurors, returned
at, and attending the term, must be placed together in the same
box, before a jury is drawn therefrom.

[ Code, § 1170, without change. ]

§ 745. Talesmen; jurors from third box. If a sufficient number
of jurors, duly drawn and notified, do not attend, or cannot be
obtained to form a trial jury, the court may, in any county except
Westchester, direct the sheriff to require the attendance of such
a number of talesmen, from the bystanders, or from the county at
large, qualified to serve as trial jurors, as it deems sufficient for
the purpose. In Westchester county, the court must direct the
sheriff to draw a sufficient number of ballots from the first box,
specified in section five hundred and eight of this chapter [the
judiciary law]; if there is not a sufficient number of. ballots
remaining therein, to draw the residue from the second box, specl-
fied in section five hundred and twenty-three of this chapter [the
judiciary law]. In any other county, except New York and
Kings, it may, in its discretion, instead of directing him to require
Jupictary Law AMENDMENTS 1249

talesmen to attend, direct him to draw a sufficient number of
ballots from the third box, specified in section five hundred and
twenty-four of this chapter [the judiciary law]. In either case,
the sheriff must notify the persons thus drawn to attend forthwith,
or upon a day fixed by the court. If, for any reason, a sufficient
number of jurors to try the issue is not obtained, from the persons
notified, under an order made as prescribed in this section, the
court may make another order, or successive orders, until a suffi-
cient number is obtained, and in making each order, the court may
exercise the same discretion, as in making the first order.

[Code, § 1171, without change. ]

§ 746, Additional talesmen. In any county, except New York,
Kings, or Westchester, the court may also direct the sheriff to
require the attendance of such a number of qualified talesmen,
for the trial of an issue of fact, as it deems sufficient, where, by
reason of one or more juries being empanelled, or for any other
reason, no ballot remains undrawn; or where, in consequence of
jurors being set aside, a juror cannot be obtained, for the trial
of that issue, from the list of those returned.

[Code, § 1172, without change. ]

§ 747. Who to act where sheriff is party. If, in a case specified
in the last two sections, the sheriff is.a party to the issue, the court
must appoint a disinterested person, to act in place of the sheriff.
For that purpose, the person so appointed possesses all the powers,
and is subject to all the duties and liabilities of the sheriff, with
respect to the matters specified in those sections.

[Code, § 1173, without change. ]

§ 748. Duty of sheriff and of talesmen. The sheriff, or person
appointed by the court, must notify the requisite number of per-
sons to attend, and make return thereof, as prescribed in section
five hundred and thirty-six of this chapter [the judiciary law];
except that each person must be required to attend forthwith.
Each person so notified must attend forthwith, and, unless excused
by the court or set aside, must serve as a juror upon the trial. For
a neglect or refusal so to do, he may be fined in the same manner
as a trial juror, regularly drawn and notified, as prescribed in

40
1250 Reporr of Joint Lecisiative ComMirrEr

this chapter [the judiciary law; and he is subject to the same
exceptions and challenges as any other trial juror].

[ Code, § 1174, without change. The last clause is covered by
civil practice act under “ Trial.’’]

§ 749. Jury competent although not in original panel. It is not
a valid objection to a jury, procured as prescribed in the last four
sections, that it contains none of the jurors originally returned
to the term, or is only partially composed of such jurors.

[Code, § 1175, without change. ]

§ 749-a, Party obtaining order for struck jury to give eight days’
notice. Unless the order for a struck jury specifies, or directs the
officer, who is to strike the jury, to fix a time for the parties to
attend, the party obtaining it must give at least eight days’ notice
of the time when he will attend, before the clerk of the county
in which the action is triable, or, if it is triable in the city and
county of New York, or the county of Kings, before the com-
missioner of jurors, for the purpose of having the jury struck.

[Code, § 1064. Included by board in judiciary law, § 493.
Section 1063 is included in civil practice act under “ Trial.’’]

§ 749-b. Mode of striking jury. At the time appointed, the clerk,
or, in his absence, the deputy-clerk, or the commissioner, as the
case requires, must attend at his office, with the original lists
or books, filed or kept in his office, as required by law, contain-
ing the names of the persons who are then liable to serve as trial
jurors; and, in the presence of the parties, or their attorneys or
counsel, must strike a trial jury, as follows:

1. The clerk, deputy-clerk, or commissioner, must select from
the lists or books, the names of forty-eight persons, whom he
deems. most indifferent between the parties, and best qualified
to try the issue; and must make and certify a lst of those
names.

2. The party, on whose application the special jury’ was
directed to be-struck, or his attorney or counsel, may then first
strike from the list one name; the adverse party or his attorney
or counsel may then strike therefrom one name; and so alter-
nately until each party has stricken out twelve names.
Jupiciary Law AMENDMENTS 1251

3. If either party fails to attend, at the time and place of
striking the jury, or neglects to strike out a name, the clerk,
deputy-clerk, or commissioner, must strike for him.

4. The clerk, deputy-clerk, or commissioner, must thereupon
make out a list of the names of the twenty-four persons not
stricken out, and must certify that it is a correct list of the per-
sons drawn to serve as jurors, pursuant to the order of the court.
He must immediately deliver the list so certified, and a certified
copy of the order, to the sheriff of the county. If the list, from
any ward or town, cannot be found, the clerk must make a new
list from the ballots then in use for jurors for that ward or town,
and must use that list, upon striking the jury, in place of the
original list.

[Code, § 1065. Included by board in judiciary law, § 494.]

§ 749-c. Jurors so drawn to be notified to attend. The sheriff
must notify the persons whose names are contained in the list;
and must return the names of those notified, to the term, at
which they are required to attend, as prescribed by law for noti-
fying and returning ordinary trial jurors.

[Code, § 1066, without change. Included by board in judici-
ary law, § 539-a.]

§ 749-d. Provision where clerk or commissioner of jurors is inter-
ested. If it appears to the court, to which an application for a
special jury is made, that the clerk, or the commissioner of
jurors, as the case may be, is interested in the action; or is
related to either of the parties; or is not indifferent between
them; the court must appoint two disinterested persons to strike
the jury; end the court may, in its discretion, in any case
appoint two such persons to strike such jury. The persons so
appointed possess, for the purposes of the action, all the powers
conferred, by this article, upon the clerk, or the commissioner of
jurors.

[Code, § 1068, without change. Included by Board in
judiciary law, § 496. Code, § 1067 is in civil practice act under
* "Trial? |
1252 Report or Jornt Leaisuarive Commrrren

§ 749-e. Party applying for special jury to pay expenses. The
expense of striking a special jury must be paid by the party
applying for it; and shall not be taxed in the costs of the action.

[Code, § 1069, without change. Included by board in costs
law, § 94.]

§ 749-f. Copy pf order for foreign jury to be delivered to sheriff,
Where an order for a trial by a foreign jury is made, a certified
copy thereof must be delivered to the sheriff of the county, from
which it is to be drawn; who must give notice thereof to the clerk
of that county, and also, in the city and county of New York, or
the county of Kings, to the commissioner of jurors, at least twenty
days before the first day of the term, at which the foreign jury
is required to attend.

[ Code, § 1070, without change. ]

§ 749-g. Mode of obtaining a foreign jury. The clerk, or, in the
county of Kings, the commissioner, to whom the notice is given,
must draw the names of twenty-four persons, in the same manner,
and in presence of the same officers, as prescribed by law, with
respect to ordinary trial jurors; except that notice of the drawing
need not be published. A certified list of the names drawn must
be delivered to the sheriff, who must notify each person drawn,
and make a return, as in an ordinary ease.

[Code, § 1071, without change. ]

§ 749-h. Presentation of claims by jurors and disposition of un-
claimed fees. All jurors including those in a criminal action or
special proceeding in a court or before an officer duly summoned
and who served as provided for by the laws of this state and are
entitled to payment therefor, must present their claims to the
proper official designated by law for the payment of jurors’ fees,
on or before the thirty-first day of December of the year succeed-
ing or following the year in which such services were rendered
and performed, and failure to comply with this provision shall be
a forfeiture of the payment for such claims or services thereafter.
All notices issued requiring jurors to attend at a term of court
or at a meeting of the grand jury, shall have printed thereon the
foregoing provision relating to forfeiture of fees. All moneys
or jurors’ fees forfeited by the provisions of this section shall be
Jupiciary Law AMENDMENTS 12538

transferred and applied to the fund of such county or city, from
which they were paid, on or before the first day of March, in each
year.

‘ [Code, § 3331-a, without change. See civil practice act,
1523.]

§ 749-1, Application of article. This article, except sections
seven hundred and forty-nine-a to seven hundred and forty-nineg,
both inclusive, applies equally to a criminal and a civil action or
special proceeding, and to a court of criminal and a court of civil
jurisdiction.

[Code, § 3347, subd. 7, part.]

§ 5. Such chapter is hereby amended by inserting therein a
new article to be article twenty-a, to read as follows:

ARTICLE 20-A
REMISSION OF FINES AND FORFEITURES

Section 798. Remitting fines and penalties and discharging
recognizances.
799, Restrictions upon power to remit.
799-a. Notice of application for remission and discharge
and costs on remission.

§ 798. Remitting fines and penalties and discharging recogni-
zances. Upon the application of a person, who has been fined by
a court, or of a person whose recognizance has become forfeited,
or of his surety, the county court of the county in which the term
of the court was held, where the fine was imposed, or the recogni-
zance taken, may, except as otherwise prescribed in the next sec-
tion, upon good cause shown, and upon such terms as it deems
just, make an order, remitting the fine, wholly or partly, or the
forfeiture of the recognizance, or part of the penalty thereof;
or it may discharge the recognizance. If a fine so remitted has
been paid, the county treasurer, or other officer, in whose hands
the money remains, must pay the same, or the part remitted,
according to the order.

[Code, § 350, without change. ]
1254 Report oF Joint Leaistative Commirrree

§ 799, Restrictions upon power to remit. The last section does
not authorize a county court to remit any part of a fine exceed-
ing two hundred and fifty dollars imposed by the supreme court
upon conviction for a criminal offense; or a fine to any amount
imposed by a court upon an officer or other person, for an actual
contempt of court, or for disobedience to its process, or other
mandate; or to remit or discharge a recognizance taken in its
county for the appearance of a person in another county. In the
latter case, the power of remitting or discharging the recogni-
zance is vested in the county court of the county, in which the
person is bound to appear.

[Code, § 351, without change. ]

§ 799-a. Notice of application for remission and discharge and
costs on remission. An application for an order, as prescribed in
the last section but one, cannot be heard, until such notice thereof
as the court deems reasonable, has been given to the: district-
attorney of the county, and until he has had an opportunity to
examine the matter, and prepare to resist the application. And
upon granting such an order, the court must always impose, as a
condition thereof, the payment of the costs and expenses, if any,
incurred in an action or special proceeding for the collection of
the fine, or the penalty of the recognizance.

[Code, § 352, without change. Code, § 353 omitted as covered
by code of criminal procedure, § 484.]

§ 6. Sections three hundred and fifty to three hundred and
fifty-two, both inclusive, one thousand and fifty-five, one thousand
and sixty-four to one thousand and sixty-six, both inclusive, one
thousand and sixty-eight to one thousand and seventy-one, both
inclusive, one thousand one hundred and sixty-three, one thou-
sand one hundred and sixty-four, one thousand one hundred and
sixty-five, one thousand one hundred and sixty-seven to one thou-
sand one hundred and seventy-five, both inclusive, one thousand
one hundred and ninety-one, one thousand two hundred and forty-
eight, one thousand two hundred and forty-nine, three thousand
three hundred and thirty-one-a and subdivision seven of section
three thousand three hundred and forty-seven of the code of civil
procedure and all acts amendatory thereof are hereby repealed.

§ 7. This act shall take effect April fifteenth, nineteen hun-
dred and twenty.
LEGISLATIVE LAW AMENDMENTS

[1255]
LEGISLATIVE LAW AMENDMENTS

AN ACT to amend the legislative law, in relation to legislative
committees.

The People of the State of New York, represented in Senate
and Assembly, do enact as follows: .

Section 1. Article four of chapter thirty-seven of the laws of
nineteen hundred and nine, entitled “An act in relation to legis-
lation, constituting chapter thirty-two of the consolidated laws,”
is hereby amended by inserting therein a new section to be sec-
ticn sixty-two-a, to read as follows:

§ 62-a, Subpoenas; oaths. The chairman, vice-chairman or a
majority of a legislative committee may issua a subpoena requir-
ing a person to attend before the committee and be examined in
reference to any matter within the scope of the inquiry or investi
gation being conducted by the committee, and, in a proper case,
to bring with him, a book or paper. The provisions of the civil
practice act in relation to enforcing obedience to a subpoena law-
fully issued by a judge, arbitrator, referee or other person in a
matter not arising in an action in a court of record apply to a
subpoena issued by a legislative committee as authorized by this
section. Any member of a legislative committee may administer
an oath to a witness.

[See code, § 854, as to legislative committees, and code, §
§438, as to oaths. ]

§ 2. This act shall take effect April fifteenth, nineteen hun-
dred and twenty.

[1257]
PARTNERSHIP LAW AMENDMENTS

[1259]
PARTNERSHIP LAW AMENDMENTS

AN ACT to amend the partnership law, in relation to continuance
of partnership business during litigation.

The People of the State of New York, represented in Senate
and Assembly, do enact as follows:

Section 1. Article two of chapter forty-four of the laws of
nineteen hundred and nine, entitled “An act in relation to part- »
nership. constituting chapter thirty-nine of the consolidated laws,”
is hereby amended by adding at the end a new section to be sec-
tion eight, to read as follows:

§ 8. Continuance of partnership business during action for ac-
counting. In an action brought to dissolve a partnership, or for an
accounting between partners, or affecting the continued prosecu-
tion of the business; the court may, in its discretion, by order,
authorize the partnership business to be continued, during the
pendency of the action by one or more of the partners, wpon their
executing and filing with the clerk an undertaking, in such a sum
and with such sureties as the order prescribes, to the effect that
they will obey all orders of the court, in the action, and perform
all things which the judgment therein requires them to perform.
The court may impose such other conditions as it deems proper,
and it may in its discretion at any time thereafter require a new
undertaking to be given. The court may also ascertain the value
of the partnership property. and of the interest of the respective
partners by a reference or otherwise, and may direct an accounting
between any of the partners; and the judgment may make such
provision for the payment to the retiring partners, for their in-
terest, and with respect to the rights of creditors, the title to the
partnership property, and otherwise, as justice requires, with or
without the appointment of a receiver, or a sale of the partner-

ship property. .
[Code § 1947, without change. Included by board in partner-

ship law, § 8.] 11261]
1262 Report or Joint Lzoisiative ComMirtTEr

§ 2. Section nineteen hundred and forty-seven of the code of
civil procedure is hereby repealed.

§ 38. This act shall take effect April fifteenth, nineteen hun-
dred and twenty.
PENAL LAW AMENDMENTS

[1263]
PENAL LAW AMENDMENTS

AN ACT to amend the penal law, in relation to alteration of
legal process or pleadings.

The People of the State of New York, represented in Senate
and Assembly, do enact as follows:

Section 1. Article one hundred and eighty-four of the penal
law is hereby amended by adding at the end a new section to be
section twenty hundred and fifty-three to read as follows:

§ 2053. Alteration of legal process, pleading or record. A proc-
ess, pleading, or record. shall not be altered, by the clerk or any
other officer of the court, or by any other person, without the direc-
tion of the court, or of another court of competent authority ; ea-
cept in a case where a party, or his attorney, is specially author-
ized by law to amend the pleading.

[Code § 727, without change. Included by board in penal law,
§ 2053.]

§ 2. Section seven hundred and twenty-seven of the penal law
is hereby repealed.
§ 38. This act shall take effect April fifteenth, nineteen hun-

dred and twenty.

(1265]
PERSONAL PROPERTY LAW
AMENDMENTS

[1267]
PERSONAL PROPERTY LAW AMENDMENTS

AN ACT to amend the personal property law, in relation to the
exemption of exhibits at international exhibitions.

The People of the State of New York, represented in Senate
and Assembly, do enact as follows:

Section 1. Chapter forty-five of the laws of nineteen hundred
and nine, entitled “An act relating to personal property, constitu-
ting chapter forty-one of the consolidated laws,” is hereby

amended by adding a new article to be article seven-a, to read as

follows: , ee

ARTICLE 7-A

Section 250. Exemption of exhibits at international exhibitions.

§ 250. Exemption of exhibits at international exhibitions. No
process of attachment, execution, sequestration, replevin, distress
or any kind of seizure shall be served or levied upon articles,
goods, wares, merchandise or property of any description while
the same is enroute to or from, or while on exhibition or de-
posited by exhibitors at any international exhibition held under
the auspices or supervision of the United States, within any city
or county of this state, nor shall such property be subject to at-
tachment, seizure, levy or sale, for any cause whatever, in the
hands of the authorities of such exhibition or otherwise.

[Code, § 1404-a. Included also as to executions in civil
practice act. |

§ 2. Section fourteen hundred and four-a of the code of civil
procedure is hereby repealed.

§ 3. This act shall take effect April fifteenth, nineteen hun-
dred and twenty.

(1269]
PRISON LAW AMENDMENTS

[1271]
PRISON LAW AMENDMENTS

AN ACT to amend the prison law, generally.

The People of the State of New York, represented in Senate
and Assembly, do enact as follows:

Section 1. Article two of chapter forty-seven of the laws of nine-
teen hundred and nine, entitled “An act relating to prisons, con-
stituting chapter forty-three of the consolidated laws,” is hereby
amended by adding at the end thereof, three new sections, to be
sections twenty-two, twenty-three and twenty-four, to read as
follows:

§ 22. United States prisoners. A sheriff must receive into his
jail and keep a prisoner, committed to the same, by virtue of civil
process issued by a court of record, instituted under the authority
of the United States, until he is discharged by the due course of
the laws of the United States, in the same manner as if he was
committed by virtue of a mandate in a civil action, issued from
a court of the State. The sheriff may receive, to his own use, the
money payable by the United States for the use of the jail. A
sheriff or jailer, to whese jail a civil prisoner is committed, as pre-
scribed herein [in the last section], is answerable for his safe
keeping in the courts of the United States, according to the laws
thereof.

[Code, §§ 133, 134, without change of substance. Sections
apply to “civil” prisoners only. Code, § 3347, sub. 1.]

§ 23, Conveyance of prisoner after arrest. A sheriff or other
officer, who has lawfully arrested a civil prisoner, may convey
his prisoner through one or more other counties, in the ordinary
route of travel, from the place where the prisoner was arrested,
to the place where he is to be delivered or confined.

[Code, § 118, without change of substance. Section 3347 A sub.
1, declares that “the prisoners referred to” are “civil”

prisoners. |
[1273]

 
1274 Report or Joint Luaistative COMMITTEE

§ 24. Care and support of civil prisoner. A person arrested, by
virtue of an order of arrest, in an action or special proceeding
brought in a court of record; or of an exccution issued upon a
judgment rendered in a court of record; or surrendered in exoner-
ation of his bail; must be safely kept in custody, in the manner
prescribed by law, and, except as otherwise provided by law [pre
scribed in the next section and in subdivision nineteen of section
two hundred and forty of the county law], at his own expense,
until he satisfies the judgment rendered against him, or is dis-
charged according to law.

[Code, § 110, without change of substance. ]

§ 2. Article thirteen of such chapter is hereby amended by
adding at the end thereof thirteen new sections, to be sections
three hundred and sixty-one to three hundred and sixty-nine-e,
both inclusive, to read as follows:

§ 361. Confinement of civil prisoner. A civil prisoner, com-
mitted to jail upon process for contempt, or committed for miscon-
duct in a case prescribed by law, must be actually confined and
detained within the jail, until he is discharged by due course of
law, or is removed to another jail or place of confinement, in a
case prescribed by law. A sheriff or keeper of a jail, who suffers
such a prisoner to go or be at large out of his jail; except by vir-
tue of a writ of habeas corpus, or by the special direction of the
court committing him, or in a case specially prescribed by law;
is liable to the party aggrieved, for his damages sustained thereby,
and is guilty of a misdemeanor. If the commitment was for the
non-payment of a sum of money, the amount thereof, with inter-
est, is the measure of damages.

[Code, § 157, without change of substance. Section applies to
“civil” prisoners only. Code § 3347, sub. 1.]

§ 362. Who entitled to jail liberties. A person in the custody of
a sheriff, by virtue of an order of arrest; or of an execution in a
civil action; or in consequence of a surrender in exoneration of
his bail; is entitled to be admitted to the liberties of the jail, ‘pon
delivertne to the sheriff an approved undertaking as prescribed in
[the next] section three hundred and sixty four of thes chapter.

[Code, § 140, without change. ]
Prison Law AMENDMENTS 1275

§ 363. Jail liberties where new jail designated. If a prisoner
has been admitted to the liberties of the jail of the county, for
which a designation is made pursuant to section three hundred
and fifty-one of this chapter [the prison law], he must, notwith-
standing, remain within those liberties, but he may be removed
by the sheriff, to whom he has given bond for the liberties, to the
jail or other place so designated, and confined therein, in a case
where the sheriff might confine him in the jail of his own county.

[ Code, § 138, without change. ]

§ 364. Undertaking for jail liberties. The undertaking must be
executed by the prisoner, and one or more sufficient sureties, resi-
dents, and householders or freeholders of the county, in a penalty
at least twice the sum, in which the sheriff was required to hold the
defendant to bail, if he is in custody under an order of arrest, or
has been surrendered in exoneration of his bail, before judgment;
or directed to be collected by the execution, if he is in custody
under an execution; or remaining uncollected upon a judgment
against him, if he has been surrendered after judgment; condi-
tioned, that the person so in custody shall remain a prisoner, and
shall not, at any time, or in any manner, escape or go without the
liberties of the jail, until discharged by due course of law. Upon
the giving and the approval by the court or a judge thereof, or a
eounty judge, of such an undertaking, the prisoner shall be re
leased from the custody of the sheriff and the sheriff shall there-
upon be exonerated from liability. But after the allowance of the
undertaking as hereinafter prescribed, the same must be delivered
by the clerk, on request, to the party at whose instance the pris-
oner was in custody. Within two days after the approval bv the
court, judge, or county judge, the undertaking must be filed by the
sheriff with the clerk, and a copy delivered to the party at whose
instance the prisoner was in custody, or to his attorney, who shall
within three days thereafter serve upon the surety or sureties, or
the attorney for the prisoner, a notice that he does not accept him.
or them, as bail; otherwise he is deemed to have accepted them.
Within three days after the receipt of such notice, the surety or
sureties, or the attorney for the prisoner, may serve upon the
party, or attorney for the party, at whose instance the prisoner
was in custody, notice of justification of the same or other bail
before the court or a judge thereof, or a county judge, at a speci-
fied time and place; the time to be not Jess than five days nor more
1276 Report or Jornr Lucisuarive ComMirTEr

than ten days thereafter, and the place to be within the county
where one of the bail resides or where the defendant was arrested.
Except as otherwise expressly prescribed [in this article] the
provisions of law regulating the substitution of new sureties or a
new undertaking, and the examination and qualification of the
new sureties, and the allowance of the undertaking after justifica-
tion, upon an order of arrest in a civil action in a court of record
[contained in article third of title first of chapter seventh of this
act], shall govern. If the bail shall not be allowed, the court,
judge or county judge shall remand the prisoner to the custody of
the sheriff. This section applies to a civil prisoner only.

[Code, § 150, without change of substance. Section 150 applies
to “civil” prisoners only. Code, § 3347, sub. 1.]

§ 365, Recommittal of prisoner for surety’s insufficiency. An
undertaking [so taken] of a civil prisoner for jadl liberties is held
for the indemnity of the party at whose instance the prisoner exe-
cuting it is confined. If the party at whose instance the prisoner
is in custody discovers that a surety therein is insufficient, he may,
upon proof of the fact, by affidavit or otherwise, apply to the court
or to a judge thereof, on whose process or mandate such prisoner
is in custody, or to the county judge of the county where such pris-
oner is confined, and the court, or a judge thereof, or such county
judge, may make an order committing such prisoner to close con-
finement in the jail until another undertaking with good and suffi-
cient sureties is offered.

[Code, §§ 151, 152, without change of substance. Section
applies to civil prisoners only. Code, § 3347, sub. 1.]

§ 366. Surrender of prisoner by surety. One or more of the
sureties, in an undertaking given for the liberties of a jail, may
surrender the principal, at any time before judgment is rendered
against them in an action on the undertaking; but they are not
exonerated thereby, from a liability incurred before making the
surrender. The surrender must be made as follows: The surety
or sureties making it must take the principal to the keeper of the
jail, who must, upon his or their written requisition to that effect,
take the principal into his custody, and indorse upon the undertak-
ing given for the liberties, an acknowledgment of the surrender;
Prison Law AMENDMENTS 1277

and also, if required, give the surety or sureties a certificate,
acknowledging the surrender.

[Code, §§ 153, 154, without change. ]

§ 367, Liberties of jail where designation of another jail made.
If a person, who is arrested, before or after the designation of
another jail or place of confinement by the sheriff of the county
for which the designation is made, becomes entitled, after the desig-
nation, and before his removal, to the liberties of the jail, he must
be admitted to the liberties of the jail of that county, as if the des-
ignation had not been made; but he may be removed by the sheriff
to the jail, or other place, so designated, and confined therein, in a
case where the sheriff might coutine him in the jail of his own
county.

[ Code, § 139, without change of substance. ]

§ 368. Jail liberties where prisoner is transferred to another jail,
If a person confined in or removed to the jail of a contiguous
county, designated as prescribed in article thirteen of this chapter
[the judiciary * law], becomes entitled to the liberties of the jail,
the sheriff of that county must admit him to the jail liberties, as
if he had been originally arrested by that sheriff, on a mandate
directed to him.

[Code, § 140, without change. |

§ 369, Revocation of designation of jail. When a jail is erected
for the county, for whose use the designation pursuant to section
three hundred and fifty-one of this chapter [the judiciary law]
was made, or its jail is rendered fit and safe for the confinement
of prisoners, or the reason for the designation of another jail or
place has otherwise ceased to be operative, the designation must
be revoked, as prescribed in this article and section three hundred
and fifty-two of this chapter [the judiciary law].

[ Code, § 141, without change. ]
§ 369-a. Manner and effect of revocation. The county clerk

must immediately serve a copy of the revocation, duly certified by
him under his official seal, upon the sheriff of the same county ;

 

* So in original.
1278 Reporr or Jorny Legistative ComMirrEesr

who must remove the civil and criminal prisoners belonging to his
custody, and confined without his county, to his proper jail. Ifa
prisoner has been admitted to the jail liberties in the other county,
he must also be removed; and he is entitled to the liberties of the
jail of the county, to which he is removed, without a new bond, as
if he had been originally admitted to the jail liberties in that
county; and the bond given by him applies accordingly to those
liberties.

[Code, § 142, without change of substance. Section applies to
“civil and criminal ” prisoners. Code, § 3347, sub. 1.]

§ 369-b. What constitutes an escape. The going at large, within
the liberties of the jail in which he is in custody, of a civil prisoner
who has executed such an undertaking, or of a prisoner who would
be entitled to the liberties upon executing such an undertaking, is
not an escape. But the going at large, beyond the liberties, by
such a prisoner, without the assent of the party at whose instance
he is in custody, is an escape; and the sheriff in whose custody he
was, or his sureties, has the same authority to pursue and retake
him, as if he had escaped from the jail. Such an escape forfeits
the undertaking for the liberties, if any; subject to the provisions
of [the next] article thirteen-a of this chapter [title].

[Code, § 155, without change of substance. Section applies to
“civil” prisoners only. Code, § 3347, sub. 1.]

§ 369-c. Sheriffs liability for escape. Where a civil prisoner,
in a sheriff’s custody, goes or is at large beyond the liberties of the
jail, without the assent of the party at whose instance he is in cus-
tody, the sheriff is answerable therefor, until an undertaking pro
vided for in section three hundred and sixty-four [one hundred
and fifty] of this [article] chapter has been given and approved,
as follows:

1. If the prisoner was in custody by virtue of an order of arrest,
or in consequence of a surrender in exoneration of his bail, before
judgment, the sheriff is answerable to the extent of the damages
sustained by the plaintiff.

2. If the prisoner was in custody by virtue of any other man-
date, or in consequence of a surrender in exoneration of his bail,
after judgment, the sheriff is answerable for the debt, damages, or
sum of money, for which the prisoner was committed.
Prison Law AMENDMENTS 1279

3. Upon the giving and approval of the undertaking in this arti-

cle mentioned, no action for an escape shall be maintained against
the sheriff.

[Code, § 158, without change uf substance. Section applies to
“civil” prisoners only. Code, § 3347, sub. 1.]

§ 369-d. Service of summons in action for escape. [3. If the]
The summons in an action [is] against a sheriff, for a cause
specified in section [one hundred and fifty-eight] three hundred
and sixty-nine-c of this [act], chapter may be served by deliver-
ing [it] @ copy thereof within the state to the defendant in
person, or to his undersheriff in person, or at the office of the
sheriff during the hours when it is required by law to be kept
open, to a deputy sheriff or a clerk in the employment of the
sheriff, or other person in charge of the office.

[Code, § 426, subd. 3, without change of substance. ]

§ 369-e. Defence of sheriff in action for escape. In an action
against a sheriff or other officer, for the escape of a prisoner, it is
a defence, that the escape was without the assent of the defendant,
and that at the commencement of the action, he had the prisoner
within the liberties, either by his voluntary return or by recapture,
or that an undertaking required to be given by sections [one hun-
dred and forty-nine] three hundred and sixty-two and [one hun-
dred and fifty] three hundred and sixty-four of this chapter
[act], was given and approved.

[Code, § 171, without change. |

§ 8. Such chapter is hereby amended by inserting therein a
new article, to be article 13-a, to read as follows:

ARTICLE 13-A
ACTION UPON UNDERTAKING FOR JAIL LIBERTIES

Section 369-f. Defense in action by sheriff on undertaking for
jail liberties.
369-g. Effect of judgment against sheriff as against
sureties.
1280 Report oF Joint Lzuaisuative ComMirrer

Section 369-h. Summary judgment for sheriff.
869-1. Stay or vacation of judgment.
369-j. Judgment as evidence.
369-k. Subrogation where undertaking is forfeited.
369-1. Effect of commencement of action as a bar.
369-m. Defence to action.
369-n. Stay of proceedings against sheriff.
369-0. Application of article.

§ 369-f. Defense in action by sheriff on undertaking for jail
liberties. In an action brought on an undertaking for the jail
liberties, it is a defense, that the prisoner voluntarily returned to
the liberties of the jail from which he escaped, or was recaptured
by, or surrendered to the sheriff, from whose custody he escaped,
before the commencement of the action. The defendants may
make that or any other defense to the action, which might be made
by the sheriff, to an action against him for the escape.

[Code, § 160, without change. ]

§ 369-g. Effect of judgment against sheriff as against sureties.
But if judgment has been rendered against the sheriff, in an action
brought for the escape, and due notice of the pendency of the
action was given to the prisoner and his sureties, to enable them to
defend the same, the judgment against the sheriff is conclusive
evidence of his right to recover against the prisoner and his sure
ties, to whom the notice was given, as to any matter which was or
might have been controverted, in the action against the sheriff.

[Code, § 161, without change. ]

§ 369-h. Summary judgment for sheriff. In an action brought by
a sheriff on an undertaking for the jail liberties, if it appears to
the court, upon a motion made in behalf of the sheriff, that judg-
ment has been rendered against him, for the escape of the prisoner,
and that due notice of the pendency of the action against him, was
given to the prisoner and his sureties, to enable them to defend
the same, the court must order a summary judgment for the plain-
tiff; and judgment must be entered accordingly, with costs.

But to entitle a sheriff to move for such a judgment, he must
have served a copy of his complaint, and given twenty days’ notice
of the motion.

[Code, §§ 162, 163, without change. ]
‘Prison Law AMENDMENTS 1281

' § 369-1. Stay or vacation of judgment. Tf it appears, on the
hearing of the motion, that the defendants have a meritorious
defense, which was not controverted in the action against the
sheriff and which by law could not have been so controverted, the
court may stay proceedings on the judgment, with such limitations
and upon such terms, as it deems just, until a trial in the action;
but the judgment must stand as a security for the sheriff. If the
defense is established, the court must vacate the judgment, and
render judgment for the defendant.

[Code, § 164, without change. ]

§ 369-j, Judgment as evidence. In an action brought by a sheriff
on an undertaking for the jail liberties, a judgment against him
for the escape of the prisoner, is evidence of the damages sustained
by him, as if it had been collected; and he may recover his reason-
able attorney’s and counsel fees, and other expenses in defending
the action against him, as part of his damages.

[Code, § 165, without change. ]

§ 369-k. Subrogation where undertaking is forfeited. If an
undertaking for the jail liberties is forfeited before the same is
duly allowed, the party at whose instance the prisoner was con-
fined, or, in ease of his death, his executor or administrator, may
elect to bring an action on the undertaking. ‘The person so elect-
ing may maintain an action on the undertaking, where an action
might have been heretofore maintained by the sheriff, and he may
recover the same damages for the breach of the condition, which
he might heretofore have recovered in an action against the sheriff

for the escape.
[Code, §§ 166, 167, without change. ]

§ 369-l. Effect of commencement of action as a bar. The com-
mencement of such an action shall be deemed an election and is a
bar to an action, by or on behalf of such person, against the sheriff
or other officer accepting such an undertaking, for an escape by the
prisoner executing the undertaking, amounting to a breach of the
conditions thereof, unless the escape was with the assent of the
sheriff or other officer.

[Code, § 168, without change. ]
41
1282 Report or Joint LecisLativeE COMMITTEE

§ 869-m. Defense to action. In an action brought as provided
for in the last two [three] sections, the defendant may make any
defense, which he might heretofore have made, if the action was
brought by the sheriff.

[Code, § 169, without change. ]

§ 369-n. Stay of proceedings against sheriff. If the person so
entitled to bring an action on the undertaking for the jail liberties,
in lieu of making such election, brings an action against the sheriff
for the escape, the court may, except where the escape was made
with the sheriff’s assent, stay proceedings upon a judgment recov-
ered against the sheriff, with such limitations and upon such
terms as it deems just, until he has had a reasonable time to prose
cute the undertaking, and collect a judgment recovered thereon.

[Code, § 170, without change. |

§ 369-0. Application of article. The term “ prisoner” as used
in this article means a civil prisoner only.

[To conform to section 3347, subdivision 1.]

§ 4. Sections one hundred and ten, one hundred and eighteen,
one hundred and thirty-three, one hundred and thirty-four, one
hundred and thirty-eight to one hundred and forty-two, both
inclusive, one hundred and forty-nine to one hundred and fifty-
five, both inclusive, one hundred and fifty-seven, one hundred and
fifty-eight, one hundred and sixty to one hundred and seventy-
one, both inclusive, and subdivision taree of section four hun-
dred and twenty-six, of the code of civil procedure, and all acts
amendatory thereof, are hereby repealed.

§ 5. This act shall take effect April fifteenth, nineteen hun-
dred and twenty.
PUBLIC LANDS LAW AMENDMENTS

[1283]
PUBLIC LANDS LAW AMENDMENTS

'AN ACT to amend the publie lands law, generally.

The People of the State of New York, represented in Senate
and Assembly, do enact as follows: .

Section 1. Section nineteen of chapter fifty of the laws of
nineteen hundred and nine, entitled “An act relating to the public
lands, constituting chapter forty-six of the consolidated laws,” as
amended by chapter three hundred and twenty-nine of the laws of
nineteen hundred and sixteen, is hereby amended to read as fol-
lows:

§ 19. Payment of incumbrances on public lands; cost. The com-
missioners of the land office whenever they deem it for the best
interests of the state may order the treasurer, on the warrant
of the comptroller, to pay off and cancel any charges, assess-
ments, or encumbrances, other than the lien of a tax under article
ten of the tax law, existing on any lands belonging to the state
or in which the state has an interest, or to acquire any outstand-
ing undivided interest in such lands adverse to the title of the
state, to perfect in the state a title to any such lands, or to pro-
tect the state’s interests therein. In an action for partition of or
to foreclose a mortgage on such lands all such actions wherein
the commissioners of the land office are so empowered the plain-
tiff shall not be entitled to costs if the people of the state are made
a party defendant, unless the commissioners of the land office,
after a full presentation of the facts to them shall have deter-
mined before the action of partition is brought against the state
that the interests of the state did not warrant their making an
order for the payment or cancellation of such mortgage, lien or
encumbrance, or any amount due thereon, or for the acquist-
tion of any outstanding undivided interest adverse to the state,
or pursuant to this section, or unless the commissioners of the
land office shall have failed to make such determination within
three months after such full presentation of facts shall have
been made to them by a verified statement in writing, and filed
with the secretary of satd commissioners at his office in the city
of Albany, nor, unless a certified copy of the commissioner's

[1285]
1286 Report or Joint Leaistatrve ComMMIrrEer

report of partition, and of the referee’s or sheriff’s report of
sale, in case of a sale, filed in the action shall have first been
duly served upon the attorney-general; and in no such case
wherein the people are made a party defendant because of an
interest other than the lien of a tax under article ten of the tax
law, shall any additional allowance under sections [thirty-two
hundred and fifty-two or thirty-two hundred and fifty-three of
this act] fourteen hundred and eighty-nine or fourteen hundred
and ninety of the civil practice act be made to the plaintiff.
[The matter in italics is from Code § 1594, part, and § 1627,
part, relating to actions for partition and foreclosure. ]
- § 2: Such chapter is hereby amended by adding thereto two
new articles, to be articles thirteen and fourteen, to read as
follows:

ARTICLE 13
ACTION TO VACATE LETTERS PATENT

Section 188. When attorney-general may maintain action.
139. Action triable by jury.
139-a, Judgment-roll and effect of judgment.
139-b. Transcript to be filed in each county where real
property is situated.

§ 138. When attorney-general may maintain action. The at-
torney-general may maintain an action to vacate or annul letters-
patent, granted by the people of the state, in either of the follow-
ing cases:

1. Where they were obtained by means of a fraudulent sug-
gestion, or concealment of a material fact, made by, or with the
knowledge or consent of, the person to whom they were issued.

2. Where they were issued in ignorance of a material fact, or
through mistake.

3. Where the patentee, or those claiming under him, have done
or admitted an act, in violation of the terms and conditions upon
which the letters-patent were granted, or have, by anv other means,
forfeited the interest acquired under the same.

Whenever the attorney-general has good reason to believe that
any act or omission, specified in this section, can be proved, and
Pusric Lanps Law AMENDMENTS 1287

that the person to be made defendant has no sufficient legal defence,
he must commence such an action.

[Code, § 1957, without change. |

§ 139. Action triable by jury. An action, brought as pre-
scribed in this article, is triable, of course and of right, by a jury.
as if it were [was] an action in which the complaint demands
judgment for a sum of money only [specified in section 968 of this
act], and without procuring an order of the court defining the
issues [as prescribed in section 970 of this act].

[Code, § 1958, without change of substance. ]

§ 139-a. Judgment-roll and effect of judgment. Where final judg-
ment, vacating or annulling letters-patent, is rendered in an action,
brought as prescribed in the last section, the attorney-general must
cause a copy of the judgment-roll to be forthwith filed in the office
of the secretary of state; who must make an entry in the records of
the commissioners of the land office stating the substance and effect
of the judgment, and the time when the judgment-roll was filed.
The real property, granted by those letters-patent, may thereafter
be disposed of by the commissioners of the land office. as if the
letters-patent had not been issued.

[Code, § 1959, without change. ]

§ 139-b. Transcript to be filed in each county where real property
is situated. Immediately after making the entry prescribed in the
last section, the secretary of state must transmit a certified tran-
script thereof to the clerk, or the register, as the case requires, of
each county, in which the real property affected by the judgment is
situated. The clerk or register must file it; and, if the letters
patent are recorded in his office, he must note the contents of the
transcript in the margin of the record.

[Code, § 1960, without change. ]
1288 Reporr or Jornt Lugtsnative Commirrer

ARTICLE 14

ACTION TO RECOVER PROPERTY ESCHEATED
OR FORFEITED FOR TREASON

Section 139-c. Action for real property, escheated or forfeited.
139-d. Notice to be published before trial or judgment.
139-e. When ‘unknown claimants may be made defend-
ants.
139-£. Effect of judgment against unknown claimants.
139-g. Attorney-general to report recoveries to commis-
sioners of land office.

§ 139-c. Action for real property, escheated or forfeited. When-
ever the attorney-general has good reason to believe that the title
to, or right of possession of, any real property has vested in the
people of the state by escheat, or by conviction or outlawry for
treason, he must commence an action of ejectment to recover the
property.

[Code, § 1977, without change. ]

§ 189-d. Notice to be published before trial or judgment. The
attorney-general must cause a notice, specifying the names of the
parties and the object of the action, and containing a brief descrip-
tion of the property affected thereby, to be published in the state
paper [newspaper printed at Albany, in which legal notices are
required to be published], in a newspaper published in the city of
New York, and in a newspaper published in each county in which
any part of the property is situated, at least once in each week,
for twelve successive weeks, before an issue of fact, joined in the
action, is brought to trial; or where judgment is rendered therein
in favor of the plaintiff, otherwise than upon the trial of an issue
of fact, before final judgement is rendered.

[Code, § 1978, without change. The state paper is defined by
Executive Law, § 82.]

§ 139-e. When unknown claimants may be made defendants. [f

the property is not oeeupied, and no person is known to the
attorney-eencral as claiming title thereto, the defendant or defend-
Pusric Lanps Law AMENDMENTS 1289

ants may be designated as “ unknown claimants,” without any
other description. [In all other respects, section 451 of this act
applies to an action, in which the defendant or defendants are
thus designated.J When the name becomes known an order must
be made for inserting the trwe name in the same manner and by
the same proceedings as in any other civil action.

[Code, § 1979, without change of substance. ]

§ 139-f. Effect of judgment against unknown claimants. Where,
in an action of ejectment, to recover property alleged to be
escheated, brought as prescribed in the last section, final judgment
in favor of the people is rendered against unknown claimants, and
the real property recovered thereby is afterwards sold and con-
veyed, under the direction of the commissioners of the land office,
the judgment is conclusive upon the title of that property, as
against all persons, except those who commence an action of eject-
ment for the recovery thereof, or of a part thereof, within five
vears after the final judgment was rendered in the action in favor
of the people, and the judgment-roll was filed thereupon. [But
section 375 of this act applies to such an action.J Jf a person
who might maintain an action ws at the time the judgment-roll is
filed: within the age of twenty-one years, or insane, or imprisoned
under a criminal charge, or in execution upon conviction of a crim-
inal offense, for a term less than life, the time of such liability is
not a part of the time limited in this section, for commencing such
action, evrcept that the time so limited cannot be extended more
than five years after the disability ceases, or after the death of
the person so disabled.

[Code, § 1980, without change. The new matter is the sub-
stance of § 375, substituted for the reference. |

§ 159-g. Attorney-general to report recoveries to commissioners of
land office. The attorney-general must, from time to time, make a
report to the commissioners of the land office, of all the real prop-
erty recovered hy the people, in any action brought pursuant to
this article.

[Code, § 1981, without change. ]

§ 2. Article thirteen of such chapter, as renumbered by chap-
ten one hundred and sixty-seven of the laws of nineteen hundred
1290 Report oF Joint Leaisiarive ComMirrer

and thirteen and chapter five hundred and forty-three of the laws
of nineteen hundred and eighteen, is hereby renumbered article
fifteen thereof.

§ 38. Sections nineteen hundred and fifty-seven to nineteen
hundred and sixty, both inclusive, and sections eighteen hundred
and seventy-seven to nineteen hundred and eighty-one, both in-
clusive, of the code of civil procedure, and all acts amendatory
thereof, are hereby repealed.

§ 4. This act shall take effect April fifteenth, nineteen hun-
dred and twenty.
PUBLIC OFFICE LAW AMENDMENTS

[1291]
PUBLIC OFFICERS LAW AMENDMENTS

AN ACT to amend the public officers law, generally.

The People of the State of New York, represented in Senate
and Assembly, do enact as follows:

Section 1. Chapter fifty-one of the laws of nineteen hundred
and nine, entitled “An act in relation to public officers, consti-
tuting chapter forty-seven of the consolidated laws,” is hereby
amended by inserting therein a new article, to be article two-a
thereof, to read as follows:

ARTICLE 2-A
ACTIONS ON OFFICIAL BONDS OR UNDERTAKINGS

Section 20. Action upon official bond or undertaking.

21. Application may be made ex parte.

22. Proof to accompany application.

23. Order granting leave; action thereupon.

24. Successive actions.

25. Indorsement upon execution,

26. Collection of execution ; when a defense to subsequent
action.

27. When claimants entitled to ratable distribution.

28. Receivers, assignees and trustees deemed public
officers.

§ 20, Action upon official bond or undertaking. Where a public
officer is required to give an official bond or undertaking [to the
people], and special provision is not made by law for the prose-
cution of the bond or undertaking, by or for the benefit of a person
who has sustained by his default, delinquency or misconduct, an
injury, for which the sureties upon the bond or undertaking are

[1293]
1294 Report oF Joint Lecistative Commirren

liable, such a person may apply for leave to prosecute [the delin-
quents§} such official bond or undertaking. Such application
shall be made to the supreme court except as otherwise provided
in this article.

[Code, § 1888, amended as indicated. The section also covers
the first sentence of § 1880, relating to sheriffs, § 1886, relating
to surrogates, and § 1887, relating to county treasurers. Sec-
tion 1887 is superseded certainly as to all towns of the state except
New York. The provisions of this and the following sections are
sufficient to enable a person injured to prosecute the bond or under-
taking of the chamberlain of the city of New York if he be
deemed a treasurer within the meaning of § 1887. This section
also supersedes § 1889. The last sentence is from § 1880.]

§ 21. Application may be made ex parte. [An] Such applica-
tion [for leave to prosecute an official bond, as prescribed in this
article, may be made without notice; but in that case the officer,
or either of his sureties, may apply upon notice, to vacate an order
permitting the applicant to maintain an action, upon any ground
showing that it ought not to have been granted.

[Code, § 1892, without change of substance. ]

§ 22, Proof to accompany application. The application must be
accompanied with

1. A certified copy of the official bond or undertaking;

2. Proof by affidavit of the default ‘or misconduct complained
of, and that satisfaction of the same has not been received.

3. If the default consists of the non-payment of money, and
the applicant has not recovered judgment against the officer, or
special provision is not otherwise made by law, proof of a demand
for the money from the officer, or that a demand cannot be made
with due diligence.

[Code, $ 1880 last part and § 1891 without change of sub-
stance. |

§ 23, Order granting leave; action thereupon. Upon such an
application, the court must grant an order, permitting the appli-
eant to maintain an action upon the bond or undertaking. The
action must be brought, in the court which granted the order, by
the applicant as plaintiff; and it may be maintained, as if the
Pusuic Orricers Law AMENDMENTS 1295

applicant was the obligee named in the bond or undertaking, except
as otherwise expressly prescribed in this article. '

[Code, § 1881, without change of substance. ]

§ 24. Successive actions. The same, or any other applicant, may,
in like manner, either before or after judgment in the first action,
obtain an order, permitting him to maintain another action, in the
same court, upon the same bond or undertaking, for another
default or misconduct. Any number of such orders may be suc-
cessively made; and neither of the actions authorized thereby is
affected by the pendency of, or the recovery of judgment in, any
other, except as otherwise expressly prescribed in this article.

[Code, § 1882, without change of substance. ]

§ 25. Indorsement upon execution. Where an execution is issued
upon a judgment, recovered against the public officer [sheriff]
and any of his sureties, in an action, brought pursuant to this
article [the last four sections], the plaintiff’s attorney must in-
dorse thereon a direction to collect the same, in the first place out
of the property of the public officer [sheriff], and, if sufficient
property [of the sheriff] cannot be found, then to collect the de
ficiency out of the property of the surety or sureties.

[Code, § 1883, without change of substance, when construed in
connection with § 1889.]

§ 26, Collection of execution; when a defence to subsequent action.
It is a defence by a surety, against whom an action is brought
upon an [a sheriffs] official bond or undertaking, that he, or any
other surety or sureties, have been or will be compelled, for want
of sufficient property of the public officer [sheriff] to pay, upon
one or more judgments recovered against him or them, upon the
same bond or undertaking, an aggregate amount, exclusive of
costs, officers’ fees, and expenses, equal to the sum for which the
defendant is liable, by reason of the bond or undertaking. It isa
partial defence, that the difference between the aggregate amount,
so paid, or to be paid, and the sum for which the defendant is
thus liable, is less than the amount of the plaintiff’s demand.

[Code, $8 1884, 1889, without change of substance. |
1296 Report oF Joint Lucistative ComMirrer

§ 27. When claimants entitled to ratable distribution. If the
aggregate amount of the liabilities, which might be recovered by
actions upon an [the sheriff’s] official bond or undertaking, as
prescribed in this article, exceeds the sum for which the sureties
are liable, the court must, upon the application of a person who
has obtained leave to prosecute the bond or undertaking, made
upon notice to the plaintiff’s attorney, in each action then pending
upon such [the sheriff’s official] bond or undertaking, and in
each uncollected judgment recovered thereupon, direct and pro-
vide for the distribution of the money, collected out of the property
of the sureties, among the persons in favor of whom the liabilities
have accrued, in proportion to the amount which each one is
entitled to recover; to be ascertained by a reference, or in such
other manner as the court directs. For the purposes of the motion
an order may be made by a judge, forbidding the payment to the
plaintiff in any action, of the sum collected or to be collected by
virtue of a judgment therein. But this section does not authorize
the court to compel a plaintiff to refund any money, collected and
received by him, in good faith, before service of notice of such
an order.

‘[Code, § 1885, without change of substance. ]

§ 28. Receivers, assignees and trustees deemed public officers.
A receiver, an assignee of an insolvent debtor, or a trustee or
other officer, appointed by a court or a judge, is a public officer,
within the meaning of this article [the last section but one]; but
where he was appointed by or pursuant to the order of a court,
or in proceedings supplementary to execution against property
[2 special proceeding specified in title twelfth of chapter seven-
teenth of this act], the application for leave to prosecute his
official bond or undertaking must be made to the court by which,
or pursuant to whose order, he was appointed, or in which the
judgment was rendered, as the case may be. [An action, brought
as prescribed i in this section, must be brought in the court to which
application is made for leave to bring it.].

[Code, § 1890, without change of substance. Last sentence
covered by § 20, infra. ]

§ 2. Such chapter is hereby amended by inserting therein a
new section, to be section sixty-six-a, to read as follows:
Pustic Orricers Law AMENDMENTS 1297

§ 66-a. Fees for certification or exemplification. Whenever there
shall be presented to any public officer for certification or exem-
plification, a previously prepared legibly typewritten or printed
copy of any document, paper, book or record in such officer’s
custody, the fees in such case, for certification or exemplification,
shall be at the rate of three cents for each folio; but the minimum

total charge for certification or exemplification in all cases shall be
twenty-five cents.

[Code, § 3305-a. Section is duplicated in the civil practice
act. |

§ 3. Such chapter is hereby amended by inserting therein a
new section, to be section sixty-eight-a thereof, to read as follows:

§ 68-a. Fees for oath or acknowledgment. Any officer, authorized
to perform the services specified in this section, and to receive
fees therefor, is entitled to the following fees:

1. For administering an oath or affirmation, and certifying
the same when required, except where another fee is specially pre
seribed by statute, twelve cents.

2. For taking and certifying the acknowledgment or proof of
the execution of a written instrument; by one person, twenty-five
cents; and by each additional person, twelve cents; for swearing
each witness thereto, six cents.

[Code, § 3298. Section is duplicated in the civil practice
act. ]

§ 4. Sections eighteen hundred and eighty to eighteen hundred
and ninety-two, both inclusive, of the code of civil procedure and
all acts amendatory thereof are hereby repealed.

§ 5. This act shall take effect April fifteenth, nineteen hun-
dred and twenty.
REAL PROPERTY LAW
AMENDMENTS

[1299]
REAL PROPERTY LAW AMENDMENTS

AN ACT to amend the real property law, generally.

The Peop

le of the State of New York, represented in Senate

and Assembly, do enact as follows:

Section 1. Chapter fifty-two of the laws of nineteen hundred
and nine, entitled “An act relating to real property, constituting
chapter fifty of the consolidated laws,” is hereby amended by add-

ing thereto

six new articles, to be articles fourteen, fifteen, six-

teen, seventeen, eigateen and nineteen thereof, to read, respec-
tively, as follows:

Section 460

461.
462.
463.
464.
465.
466.
467.
468.
469.
470.
471.
472.
473.
474.
475.
476.
477.

ARTICLE 14
ACTION FOR DOWER

. Limitation for action for dower.
Necessary defendants.
Who may be joined as defendants.
Actions; where defendants claim in severalty.
Damages to be recovered; how estimated.
Damages; in action against alienee of husband.
Damages; where several parcels are affected.
Damages apportioned between heir and alienee.
Action barred by assignment of dower.
Collusive recovery not to prejudice infant.
Complaint.
Interlocutory judgment for admeasurement.
Dower, how admeasured.
Report thereupon.
Setting aside report.
Fees and expenses.
Final judgment.
Plaintiff may recover sum awarded; court may
modify judgment.
[1301]
1302 Report or Joint LuagisLative ComMITTEE

Section 478. Junior incumbrancers; not affected by admeasure-

ment.

479. Appeal not to stay execution, if undertaking is
given.

480. Plaintiff may consent to receive a gross sum.

481. Defendant may consent to pay it; proceedings
thereupon.

482. Interlocutory judgment for sale.

483. Direction that a part be laid off.

484. Liens to be ascertained.

485. Satisfaction or protection of lien.

486. Payment of taxes, assessments and water rates out
of proceeds.

487. Report of sale.

488. Final judgment upon confirming sale.

489. Damages against grantee of premises subject to
dower.

490. Certain provisions made applicable.

491. Action for ejectment by reversioner or remainder-
man after determination of particular estate.

§ 460. Limitation of action for dower. An action for dower
must be commenced by a widow, within twenty years after the
death of her husband; but if she is, at the time of his death,
either:

1. Within the age of twenty-one years; or

2. Insane; or

3. Imprisoned on a criminal charge, or in execution upon con-
viction of a criminal offence, for a term less than for life;

The time of such a disability is not a part of the time limited
by this section. And if at any time, before such claim of dower
has become barred by the above lapse of twenty years, the owner
or owners of the lands subject to such dower, being in possession,
shall have recognized such claim of dower by any statement
“ontained in a writing under seal, subscribed and acknowledeed
in the manner entitling a deed of real estate to be recorded, or if
by any judgment or decree of a court of record within the same
time and concerning the land in question, wherein such owner
or owners were parties, such right of dower shall have been dis-
tinctly recognized as a subsisting claim against said lands, the time
after the death of her husband, and previous to such acknowledg-
Reat Property Law AMENDMENTS 1303

ment in writing or such recognition by judgment or decree, is not
a part of the time limited by this section.

[Code, § 1596, without change. ]

§ 461. Necessary defendants. Where the property, in which
dower is claimed, is actually occupied, the occupant thereof must
be made defendant in the action. Where it is not so occupied,
the action must be brought against some person exercising acts of
ownership thereupon, or claiming title thereto, or an interest
therein, at the time of the commencement of the action.

[Code, § 1597, without change. ]

§ 462. Who may be joined as defendants. 1. In either of the
cases specified in the last section, any other person, claiming title
to, or the right to the possession of, the real property in which
dower is claimed, may be joined as defendant in the action.

2. The people of the state of New York may be made a party
defendant in an action for dower where the people of the state
of New York have an interest in or a lien upon the lands affected
thereby, in the same manner as a private person. In such’‘a case
the summons must be served upon the attorney-general, who must
appear in behalf of the people. But where the people of the state
of New York are made a party defendant, as herein provided, the
complaint shall set forth, in addition to the other matters required
[to be set forth by the code of civil procedure], detailed facts
showing the particular nature of the interest in or the lien on the
said real property of the people of the state of New York and the
reason for making the people a party defendant. Upon failure
to state such facts the complaint shall be dismissed as to the people
of the state of New York.

[Code, § 1598, without change of substance. ]

§ 463, Actions where defendants claim in severalty. In an
action to recover dower, in a distinct parcel of real property of
which the plaintiff’s husband died seized, or in all the real prop-
erty which he aliened by one conveyance, all the persons in posses
sion of, or claiming title to, the property, or any part thereof, may
be made defendants, although they possess or claim title to dif-
ferent portions thereof in severalty.

[Code, § 1599, without change. ]
1304 Reporr or Joint Leagisuative ComMirrnr

§ 464, Damages may be recovered; how estimated. Where a
widow recovers, in an action therefor, dower in property, of which
her husband died seized, she may also recover, in the same action,
damages for withholding her dower, to the amount of one-third of
the annual value of the mesne profits of the property, with inter-
est; to be computed, where the action is against the heir, from her
husband’s death, or, where it is against any other person,
from the time when she demanded her dower of the defendant;
and in each case, to the time of her trial, or application for judg-
ment, as the case may be; but not exceeding six years in the whole.
The damages shall not include any thing for the use of permanent
improvements, made after the death of the husband.

[Code, § 1600, without change. ]

§ 465. Damages in action against alienee of husband. Where a
widow recovers dower, in a case not specified in the last section,
she may also recover, in the same action, damages for withholding
her dower, to be computed from the commencement of the action;
but they shall not include any thing for the use of permanent
improvements, made since the property was aliened by her hus-
band. In all other respects, the same must be computed as pre-
scribed in the last section.

[Code, § 1601, without change. ]

§ 466. Damages where several parcels are affected. The last two
sections do not authorize the recovery, against a defendant who is
joined with others, of damages for withholding dower, in any
portion of the property not oceupied or claimed by him.

[Code, § 1602, without change. ]

§ 467. Damages apportioned between heir and alienee. Where a
widow recovers dower in real property aliened by the heir of her
husband, she may recover, in a separate action against him, her
damages for withholding her dower, from the time of the death of
her husband to the time of the alienation, not exceeding six years
in the whole. The sum recovered from him must be deducted
from the sum, which she would otherwise be entitled to recover
from the grantee; and any sum recovered as damages from the
Reat Proprrry Law AMENDMENTS 1305

grantee, must be deducted from the sum, which she would other-
wise be entitled to recover from the heir.

[Code, § 1603, without change. ]

§ 468. Action barred by assignment of dower. The acceptance,
by a widow, of an assignment of dower, in satisfaction of her claim
upon the property in question, bars an action for dower, and may
be pleaded by any defendant.

[Code, § 1604, without change. ]

§ 469. Collusive recovery not to prejudice infant. Where a
widow, not having a right to dower, recovers dower against an
infant, by the default or collusion of his guardian, the infant shall
not be predjudiced thereby ; but when he comes of full age, he may
bring an action of ejectment against the widow, to recover the
property so wrongfully awarded for dower, with damages from
the time when she entered into possession, although that is more
than six years before the commencement of the action.

[Code, § 1605, without change. |

§ 470. Complaint. The complaint, in an action for dower, must
describe the property claimed with common certainty, by setting
forth the name of the townshiy or tract and the number of the lot,
if there is any, or in some other appropriate manner, so that from
the description, possession of the property claimed may be deliv-
ered where the plaintiff ts entitled thereto, [as prescribed in sec-
tion 1511 of this act]; and must set forth the name of the plain-
tiff’s husband.

[Code, § 1606, substituting the text of § 1511 for the reference. ]

§ 471. Interlocutory judgment for admeasurement. Jf the de-
fendant makes default in appearing or pleading; or if the right
of the plaintiff to dower is not disputed by the answer, or if it
appears, by the verdict, report, or decision upon a trial, that the
plaintiff is entitled to dower in the real property described in the
complaint, an interlocutory judgment must be rendered ; which,
except as otherwise prescribed in this article, must direct that the
plaintiff’s dower in the property, particularly describing it, be
admeasured by a referee, designated in the judgment, or by three
1306 Reporr or Joint Leaistative ComMitrrer

reputable and disinterested freeholders, designated therein, as
commissioners for that purpose.

[ Code, § 1607, without change, § 1608 included in civil prac-
tice act under “ General Provisions.” |

§ 472. Dower, how admeasured. The referee or the commis-
sioners must execute their duties in the following manner:

1. They must, if it is practicable, and, in their opinion, for
the best interests of all the parties concerned, admeasure and
lay off, as speedily as possible, as the dower of the plaintiff, a
distinct parcel, constituting the one-third part of the real prop
erty of which dower is to be admeasured, designating the part
so laid off by posts, stones, or other permanent monuments.

2. In making the admeasurement, they must take into con-
sideration any permanent improvements, made upon the real
property, after the death of the plaintiff’s husband, or after the
alienation thereof by him; and, if practicable, those improvements
must be awarded within the part not laid off to the plaintiff; or,
if it is not practicable so to award them, a deduction must be
made from the part laid off to the plaintiff, proportionate to the
benefit which she will derive from so much of those improve
ments, as is included in the part laid off to her.

3. If it is not practicable, or if, in the opinion of the referee
or commissioners, it is not for the best interests of all the parties
concerned, to admeasure and lay off to the plaintiff a distinct
parcel of the property, as prescribed in the foregoing subdivisions
of this section, they must report that fact to the court.

4. They may employ a surveyor, with the necessary assistants,
to aid in the admeasurement.

[Code, § 1609, without change. ]

§ 473. Report thereupon. Al] the commissioners must meet
together in the performance of any of their duties; but the acts
of a majority so met are valid. The referee, or the commissioners,
or a majority of them, must make a full report of their procecd-
ings, specifying therein the manner in which they have discharged
their trust, with the items of their charges, and a particular
description of the portion admeasured and laid off to the plaintiff ;
or, if they report that it is not practicable, or, in their opinion, it
is not for the best interests of all the parties concerned, to ad-
Reat Properry Law AMENDMENTS 1307

measure and lay off a distinct parcel of the property, of which
dower 1s to be admeasured, they must state the reasons for that
opinion, and all the facts relating thereto. The report must be
acknowledged or proved, and certified, in like manner as a deed
to be recorded, and must be filed in the office of the clerk.

[Code, § 1610, without change. |

§ 474. Setting aside report. Upon the application of any party
to the action, and upon good cause shown, the court may set aside
the report, and, if necessary, may appoint new commissioners,
or a new referee, who must proceed, as prescribed in this [title]
article, with respect to those first appointed.

[Code, § 1611, without change. ]

§ 475, Fees and expenses. The fees and expenses of the com-
missioners, or of the referee, including the expense of a survey,
when it is made, must be taxed under the direction of the court;
and the amount thereof must be paid by the plaintiff, and allowed
to her, upon the taxation of her costs.

[Code, § 1612, without change. ]

§ 476. Final judgment. Upon the report being confirmed by the
court, final judgment must be rendered. If the referee or com-
missioners have admeasured and laid off to the plaintiff a distinct
parcel of the property, the judgment must award to her, during
her natural life, the possession of that parcel, describing it, sub-
ject to the payment of all taxes, assessments, and other charges,
accruing thereupon after she takes possession. If the referee or
the commissioners report, that it is not practicable, or that, in his
or their opinion, it is not for the best interests of all the parties
concerned, so to admeasure and lay off a distinct parcel of the
property, the final judgment must direct, that a sum, fixed by the
court, and specified therein, equal to one-third of the rental value
of the real property, as ascertained by a reference or otherwise,
be paid to the plaintiff, annually or oftener, as directed in the
judgment, during her natural life, for her dower in the property ;
and that the sum so to be paid, be and remain a charge upon the
property, during her natural life. The final judgment may also
award damages for the withholding of dower.

[Code, § 1613, without change. ]
1308 Report or Joint Leaistative ComMirtrer

§ 477, Plaintiff may recover sum awarded; court may modify
judgment. The plaintiff may, from time to time, maintain an
action against the owner, or a person who was the owner of the
property, to recover any instalment of the sum, so awarded to her
for her dower, which became due during his ownership, and
remains unpaid. Or, if an instalment remains due and unpaid,
she may maintain an action to procure a sale of the property,
and enforce the payment of the instalments, due and to become
due, out of the proceeds of the sale. Such an action must be
conducted, as if the charge upon the real property was a mort-
gage to the same effect. If, at any time, it is made to appear to
the court, that the rental value of the real property has materially
increased or diminished, the court may, by an order, to be made
upon notice to all the persons interested, modify the final judg-
ment, by increasing or diminishing the sum to be paid to the
plaintiff.

[Code, § 1614, without change. ]

§ 478, Junior incumbrancers; not affected by admeasurement.
Where a portion of the property is admeasured and laid off to
the plaintiff as her dower, a lien, which is inferior to the plaintiff’s
right of dower, attaches, during the life of the plaintiff, to the
residue, or to the portion or share of the residue which was sub-
ject to it, as if the portion laid off to the plaintiff had not been
a part of the property.

[Code, § 1615, without change. ]

§ 479. Appeal not to stay execution, if undertaking is given. An
appeal from a final judgment, awarding to the plaintiff pos-
session of the part admeasured and laid off to her, does not stay
the execution thereof, unless the court, or a judge thereof, grants
an order directing such a stay. Such an order shall not be granted,
if an undertaking is given on the part of the respondent, with one
or more sureties, approved by the court, or a judge thereof, to the
effect that, if the judgment appealed from is reversed or modified,
and restitution is awarded, she will pay, to the person entitled
thereto, the value of the use and occupation of the part so ad-
measured and laid off to her, or of the portion, restitution of which
is awarded, during the time she holds possession thereof, by virtue
of the judgment.

[ Code, § 1616, without change. ]
Reat Properry Law AMENDMENTS 1309

§ 480. Plaintiff may consent to receive a gross sum. In an action
for dower, the plaintiff may, at any time before an interlocutory
judgment is rendered, by reason of the defendant’s default in
appearing or pleading, or, where an issue of fact is joined, at any
time before the commencement of the trial, file with the clerk, a
consent to accept a gross sum, in full satisfaction and discharge of
her right of dower in the real property described in the complaint.
Such a consent must be in writing, and acknowledged or proved,
and certified, in like manner as a deed to be recorded. A copy
thereof, with notice of the filing, must be served upon each adverse
party who has appeared, or who appears after the filing. -

[Code, § 1617, without change. ]

§ 481. Defendant may consent to pay it; proceedings thereupon.
At any time after a consent is filed, as prescribed in the last
section, and before an interlocutory judgment is rendered, any
defendant may apply to the court, upon notice, for an order grant-
ing him leave to pay such a gross sum. Thereupon the court may,
in its discretion, and upon such terms as justice requires, ascer-
tain the value of the plaintifi’s right of dower. in the property,
by a reference or otherwise, and make an order, directing payment,
by the applicant, of the sum so ascertained, within a time fixed by
the order, not exceeding sixty days after service of a copy thereof ;
and directing the execution by the plaintiff of a release of her
right of dower, upon receipt of the money. Obedience to the
order may be enforced, either by punishment for contempt, or by
striking out the pleading of the offending party, and rendering
judgment against him or her or in both modes.

[Code, § 1618, without change. ]

§ 482. Interlocutory judgment for sale. Where the plaintifi’s
consent has been filed, as prescribed in the last section but one,
and she is entitled to an interlocutory judgment in the action, the
court must, upon the application of either party, ascertain, by
reference or otherwise, whether a distinct parcel of the property
can be admeasured and laid off to the plaintiff, as tenant in dower,
without material injury to the interests of the parties. If it
appears to the court, that a distinct parcel cannot be so admeasured
and laid off, the interlocutory judgment must, except in the case
specified in the next section, direct that the property be sold by
1310 Report or Joint Legisitative ComMITTer

the sheriff, or by a referee designated therein; and that, upon the
confirmation of the sale, each party to the action, and every person
deriving title from, through, or under a party, after the filing of
the judgment-roll, or of a notice of the pendency of the action, as
prescribed [in article ninth of this title,] by law be barred of and
from any right, title, or interest in or to the property sold.

[Code, § 1619, without change of substance. ]

§ 483, Direction that a part be laid off. In a case specified in
section [1617] four hundred and eighty of this [act] chap
ter where the property, or a part thereof, consists of one
or more vacant or unimproved lots, the plaintiff’s consent
may contain a stipulation to take a distinct parcel, out of
those lots, in lieu of a gross sum. In that case, tae inter-
locutory judgment, instead of directing a sale, may direct if
it appears to be just so to do, that commissioners be appointed
to admeasure and lay off to the plaintiff a distinct parcel, out of
the vacant or unimproved lots; and, if there is any other property,
that it be sold, and a gross sum be paid to her out of the proceeds
thereof, as prescribed in the next four sections. The plaintifi’s
title to each distinct parcel, admeasured and laid off to her, as
prescribed in this section, is that of an estate of inheritance in
fee simple. In admeasuring and laying off the same, the com-
missioners must consider quantity and quality relatively, accord-
ing to the value of the plaintiff’s right of dower in the vacant or
unimproved lots, out of which the admeasurement is to be made;
which must be ascertained, in proportion to the value of those lots,
as prescribed, in the next [three] four sections, for fixing a gross
sum to be paid to her out of the proceeds of a sale.

[Code, § 1620, without change. |

§ 484, Lien to be ascertained. Before an interlocutory judg-
ment is rendered for the sale of the property, the court must
direct a reference to ascertain whether any person, not a party,
has a len upon the property, or any part thereof. But the court
may direct or dispense with such reference, in its discretion,
where a party produces a search, certified by the clerk, or by the
clerk and register as the case requires, of the county where the
property is situated; and it appears therefrom, and by the affi-
davits, if any, produced therewith, that there is no such outstand-
Reat Property Law AMENDMENTS 1811

ing lien. Except as otherwise expressly prescribed in this article,
the proceedings upon and subsequent to the reference must be the
same, as prescribed [in article second of this title, ] by law, where
a reference is made [as prescribed in section 1561 of this act]
man action for partition to ascertain whether there is a creditor
nota party who has a len on the share or interest of a party.

[Code, $ 1621, without change, except to refer to the subject
instead of specifically to § 1561.]

§ 485. Satisfaction or protection of lien. Where the interlocutory
judgment directs a sale, if the right of dower of the plaintiff is
inferior to any other lien upon the property, the judgment may,
in the discretion of the court, direct that the property be sold
either subject to the lien, or discharged from the lien; and, in the
latter case, that the officer making the sale pay the amount of
the lien, out of the proceeds of the sale.

[Code, § 1622, without change. ]

§ 486. Payment of taxes, assessments and water rates out of pro-
ceeds. Where a judgment, rendered in an action for [partition,
for] dower[, or to foreclose a mortgage upon real property,
directs a sale of the real property, the officer making the sale must,
out of the proceeds, unless the judgment otherwise directs, pay —
all taxes, assessments, and water rates, which are liens upon the
property sold, and redeem the property sold from any sales for
unpaid taxes, assessments, or water rates, which have not appar-
ently become absolute. The sums necessary to make those pay-
ments and redemptions are deemed expenses of the sale.

[Code, § 1676, so far as applicable to action for dower. ]

§ 487, Report of sale. Immediately after completing the sale,
and executing the proper conveyance to the purchaser, the officer
making the sale must make and file with the clerk a report thereof,
showing the name of the purchaser, and the purchase-price paid
by him, or, if the property was sold in parcels, the name of each
purchaser, and the price and a description of the parcel sold to
him; the sums which the officer has paid out of the proceeds of the
sale, pursuant to the interlocutory judgment; the purpose for
which each payment was made; the amount and items of his fees
1312 Report or Joint Leqgisuative ComMitrer

and expenses; and the net amount of the proceeds, after deducting
the payments.

[Code, § 1623, without change. ]

§ 488. Final judgment upon confirming sale. Upon confirming
the sale, the court must ascertain, by a reference or otherwise,
the rights and interests of each of the parties’ in and to the pro-
ceeds of the sale, and also what gross sum of money is equal to
the value of the plaintiff's dower in the net proceeds of the sale,
calculated upon the principles applicable to life annuities. The
court must thereupon render final judgment, confirming the sale,
and directing that the gross sum so ascertained be paid to the
plaintiff, in full satisfaction of her right of dower; and that the
remainder of the proceeds of the sale be distributed among the
persons entitled thereto.

[Code, § 1624, without change. ]

§ 489, Damages against grantee of premises subject to dower. If
the defendant, in an action [of ejectment or an action] for dower,
aliens the real property in question, after the filing of a notiee[,
as specified in section 1670 of this act] of pendency) of action
- and an execution against him for the plaintiff’s damages is
returned wholly or partly unsatisfied, an action may be main-
tained by the plaintiff against any person, who has been in posses-
sion of the property, under the defendant’s conveyance, to recover
the unsatisfied portion of the damages, for a time not exceeding
that, during which he possessed the property.

[Code, § 1685, so far as applicable to action for dower. ]

_§ 490. Certain provisions made applicable. The provisions | of
[article second of this title] law, relating to a sale [made as pre
scribed in that article] in partition and to the distribution,
investment, and care of the proceeds, apply, as far as they are
applicable, to a sale made as prescribed in this article, and to the
distribution of the proceeds of a sale, as prescribed in [the last]
section four hundred and eighty-etght.

[Code, § 1625, referring to actions in partition generally in-
stead of specifically to article and title. ]
Reat Prorerry Law AMENDMENTS 1313

§ 491. Action for ejectment by reversioner or remainderman,
after determination of particular estate. Where a tenant for life,
or for a term of years, suffers a judgment to be taken against
him, by consent or by default, in [an action of ejectment, or]
an action for dower, the heir or person owning the reversion or
remainder, may, after the determination of the particular estate,
maintain an action of ejectment to recover the property.

[Code, § 1680, as to action for dower. ]

ARTICLE 15

ACTION TO COMPEL THE DETERMINATION
OF A CLAIM TO REAL PROPERTY .

Section 500. Who may maintain an action.
501. Complaint. ‘
502. Proceedings when defendant denies plaintiff’s title.
5038. Proceedings when defendant pleads title.
504. Proceedings the same as in ejectment.
505. Proceedings when defendant claims in reversion or
remainder.
506. Judgment awarding defendant possession.
507. Judgment for plaintiff.
508. Effect of judgment.
509. Action to determine widow’s dower.
510. Proceedings, if plaintiff admits defendant’s claim.
511. Proceedings when defendant’s claim is denied.
512. This article applies to corporations.

§ 500, Who may maintain an action. Where a person has been,
or he and those whose estates he has, have been for one year in
posséssion of real property, or of any undivided interest therein,
claiming it in fee, or for life, or for a term of years not less
than ten, he may maintain an action against any other person to
compel the determination of any claim adverse to that of the plain-
tiff which the defendant makes, or which it appears from the public
records, or from the allegations of the complaint, the defendant
might make to any estate in that property In fee, or for life, or for
a term of years not less than ten, in possession, reversion or

42
1314 Revort or Joint Legisuarive ComMItTTEE

remainder, or to any interest in that property, including any claim
in the nature of an easement therein, whether appurtenant to any
other estate or lands or not, and also including any lien or incum-
brance upon said property, of the amount of value of not less than
two hundred and fifty dollars. But this section does not apply
to a claim for dower.

[Code, § 1638, without change. ]

§ 501. Complaint. The complaint in such an action must set
forth facts showing:

1. The plaintiff’s right to the real property; whether his estate
therein is in fee, or for life, or for a term of years not less than
ten; and whether he holds it as heir, devisee or purchaser, with
the source from or means by which his title immediately accrued
to him.

2. That the property, at the commencement of the action was,
and, for the one year next preceding, has been in his possession,
or in the possession of himself and those from whom he derives
his title, either as sole tenant, or as joint tenant, or as tenant in
common with others.

3. That the defendant unjustly claims, or that it appears from
the public records or from the allegations of the complaint, that
the defendant might unjustly claim an estate or interest or ease-
ment therein, or a lien or incumbrance thereupon of the character
specified in the last section.

The complaint must describe the property [[as prescribed in
section fifteen hundred and eleven of this act] claimed with com-
mon certainty, by setting forth the name of the township or tract
and the number of the lot, of there is any, or in some other appro-
priate manner, so that from the description possession of the
property claimed may be delivered where the plaintiff is entitled
thereto, and may contain an allegation that no personal claim is
made against any defendant other than a defendant who shall
assert a claim adverse to the claim of the plaintiff set forth in the
complaint. The demand for judgment may be to the etfect that
the defendant and every person claiming under him to be barred
from all claim to an estate in the property described in the com-
plaint, or from all claim to an interest or easement therein, or a
lien or incumbrance thereupon, of the character specified in the
Reat Property Law AMENDMENTS 1315

last section, or it may combine two or more of said demands with
other demand for appropriate relief.

(Code, § 1639, without change, except to substitute the text
of § 1511, for the reference. ]

§ 502. Proceedings when defendant denies plaintiff’s title. If
the defendant, in his answer, puts in issue the matters specified
in subdivision second of the last section, and succeeds upon that
defense, final judgment must be rendered in his favor, dismissing
the complaint, and awarding to him costs against the plaintiff.

[Code, § 1640, without change. ]

§ 508. Proceedings when defendant pleads title. The defendant
may, in his answer, either with or without the defense specified
in the last section, set forth facts, showing that he has an estate
in the property or any part thereof, adverse to the plaintiff, in
fee, or for life, or for a term of years not less than ten, in posses-
sion, reversion, or remainder, as in a complaint for the same cause
of action; or the defendant may set forth facts showing that he
has an interest or an easement in, or a lien or incumbrance upon,
said property; and thereupon he may demand that the complaint
be dismissed, or any judgment to which he would be entitled in
an action brought by him to recover that estate in said property,
or to enforce in any manner the interest or easement therein, or
the lien or incumbrance thereupon which he asserts; or he may
combine any two or more of said demands.

[Code, § 1641, without change. ]

- § 504, Proceedings the same as in ejectment. Where an issue of
fact is joined in an action brought as prescribed in this article,
unless the defendant merely demands that the complaint be dis-
missed, if the defendant claims an estate in said property, the
subsequent proceedings, including the trial, judgment and execu-
tion, are the same us if it was an action of ejectment, except as
otherwise expressly [prescribed in this title] provided by law;
if the defendant claims an interest or easement in, or a lien or
incumbrance upon, said property, the subsequent proceedings are
the same as if it was an action brought by the defendant to estab-
lish or enforce the said interest, easement, lien or incumbrance,
1316 Report or Joinr LueatsLative ComMiItrer

and the court may award any appropriate relief except as other-
wise expressly [prescribed in this title] provided by law.

[Code, § 1642, without change of substance. ]

§ 505. Proceedings when defendant claims in reversion or re-
mainder, Where the defendant claims the property in question, or
any part thereof, by virtue of an estate in remainder or reversion,
he need not establish a right to the immediate possession thereof ;
but where the verdict, report, or decision finds that he has such
an estate, it must specify the time when, or the contingency
upon which, he will be entitled to possession; and final judgment
to that effect must be rendered accordingly, without damages.
In such a case, an execution for the delivery of the possession
of the property may be issued upon the judgment; but only by
the special order of the court, made upon an application by the
defendant, or a person claiming under him, and satisfactory proof
that the time has arrived when, or the contingency has happened
upon which, the applicant is entitled to possession by the terms of
the judgment.

[Code, § 1648, without change. ]

§ 506. Judgment awarding defendant possession. Where a final
judgment, in favor of the defendant, determines that he is entitled
to the immediate possession of the property, it must award him
possession accordingly. The final judgment must also award to
him his damages for the withholding of the property, as in an
action of ejectment.

[Code, § 1644, without change. ]

§ 507. Judgment for plaintiff. Final judgment for the plaintiff
must be to the effect that the defendant, and every person claim-
ing under him, by title accruing after the filing of the judgment-
roll, or of the notice of the pendency of the action, as prescribed
[in article ninth of this title] by law, be forever barred from all
claim to any estate of inheritance, or for life, or for a term of
years not less than ten, in the property; or such judgment must be
that the defendant and every person claiming under him, as
above stated, be forever barred from all elaim to any interest or
easement in, or lien or ineumbrance upon, the said property. of
any kind or nature whatsoever, or of any particular interest,
Reat Prorerry Law AMENDMENTS 1317

easement, lien or ineumbrance specified in said judgment; and
the court may direct any instrument purporting to create any
such interest, easement, lien or incumbrance to be delivered up
or to be canceled of record; or two or more of said forms of
judgment may be awarded in the same action. If such a judg-
ment is taken upon the defendant’s default in appearing or plead-
ing, it shall not award costs to either party, unless it be taken upon
a default in answering, after the decision of a demurrer to the
complaint. A defendant against whom no personal claim is made
in the complaint shall not be entitled to costs unless awarded by
the court when such defendant asserts in his answer and estab-
lishes a claim in said lands adverse to the claim of the plaintiff
in said action.

[Code, § 1645, without change of substance. ]

§ 508, Effect of judgment. A final judgment in favor of either
party, in an action brought as prescribed in this article, is con-
clusive against the other party, as to the title established in the
action; and also against every person claiming from, through, or
under that party, by title accruing after the filing of the judg-
ment-roll, or of the notice of the pendency of the action, as pre-
scribed [in article ninth of this title] by law. A new trial of
said action after judgment shall not be granted as a matter of
right, but the court may, in its discretion in the interest of justice,
grant a new trial upon an application made by any party within
one year after said judgment. But where a defendant is an infant,
an idiot, a lunatic, an habitual drunkard, or imprisoned on a
criminal charge or in execution upon conviction of a criminal
offense for a term less than life, the said defendant shall have the
right, within one year after his disability is terminated, to apply
for and obtain a new trial of said action, and the representatives
of such a defendant shall have the same right within one year
after the death-of said defendant, if such death occurs while the
disability continues. Upon any new trial of an action, brought
as prescribed in this article, the record of the evidence given upon
the previous trial, may be again offered to the court by either
party, and may be received in evidence, in case the same evidence
cannot be again procured. The courts may make such rules and
orders as to preserving the record of the evidence given in such
actions and perpetuating the proofs produced therein, either with
or without the awarding of any other relief to the party whose
1318 Report or Joint Lecistarive ComMirrer

proofs are so perpctuated, as shall be necessary or proper, and
may embrace such directions in the judgment.

[Code, § 1646, without change of substance. |

§ 509, Action to determine widow’s dower. A person claiming,
as owner, an estate in fee, for life, or for years, in real property,
may maintain an action against a woman, who claims to have a
right of dower in the whole or a part of the property, to compel
the determination of her claim. But such an action cannot be
commenced until after the expiration of four months after the
death of defendant’s hushand. If the defendant is under any of
the disabilities specified in the last section, the provisions of that
section relating to new trials and to perpetuating proofs shall
apply to her case.

[Code, § 1647, without change. |

§ 510. Proceedings, if plaintiff admits defendant’s claim. In an
action brought as specified in the last section, if the complaint
admits the defendant’s right of dower in the property described
therein, or any part thereof, it must demand judgment that her
dower be admeasured. In that case, if the defendant does not,
by her answer, set forth facts showing that she is entitled to a
greater right of dower, or another estate or interest in the prop-
erty, than is so admitted, and demand judgment therefor, as if
she was the plaintiff in an action for dower, the court must render
an interlocutory judgment, directing her dower to be admeasured,
with or without damages for its detention, as in an action for
dower. The subsequent proceedings are the same, as if the
defendant had, as plaintiff, recovered an interlocutory judgment
in an action for dower.

[Code, § 1648, without change. ]

§ 511. Proceedings when defendant’s claim is denied. Where the
plaintiff insists, in his complaint, that the defendant has not a
right of dower in the property, he must demand judgment that
she be forever barred from such a claim. In that case, or where
the plaintiff admits a right of dower in the defendant, and the
defendant in her answer demands judgment for a greater right
of dower, or another estate or interest in the property, than is so
admitted, the provisions of this article, relating to an action to
Reat Prorrrry Law AMENDMENTS 1319

compel the determination of an adverse claim in fee, or for life, or
for a term of years not less than ten, apply to all proceedings
subsequent to the answer.

[Code, § 1649, without change. ]

§ 512. This article applies to corporations. An action may be
maintained, as prescribed in this article, by or against a corpora-
tion, or by or against an unincorporated association, as if it was
a natural person, or such an action may be maintained by or
against the receiver or other successor of any such corporation or
association.

[Code, § 1650, without change. ]

ARTICLE 16
ACTION FOR WASTE; OTHER ACTIONS

Section 520. Who liable to action for waste.

521. Action for waste by heir, devisee, or grantor of
reversion.

522. Action for waste by ward against guardian.

523. Action for waste by grantee of real property sold
under execution.

524, Judgment in action for waste against tenant of par-
ticular estate.

525. Action for waste against joint tenant or tenant in

common.

526. Interlocutory judgment for partition in action for
waste.

527. Damages in action for waste to be deducted from
defendant’s share.

528. View in action for waste.

529. Action for nuisance.

530. Action against certain persons holding over as tres-
passers.

531. Action by reversioner or remainderman.

532. Action by joint tenant or tenant in common.

533. Action for cutting or carrying off trees or timber.
1320 Report or Joint Luarstative Commirtren

Section. 534. When treble damages may be recovered in such

action.

535. Action for forcible entry or detainer; treble
damages.

536. Actions relating to real property situate without the
state.

§ 520, Who liable to action for waste. An action for waste lies
against a tenant by the curtesy, in dower, for life, or for years, or
for assignee of such a tenant, who during his estate or term, com-
mits waste upon the real property held by him, without a special
and lawful written license so to do; or against such a tenant, who
lets or grants his estate, and still retaining possession thereof,
commits waste without a like license.

[Code, § 1651, without change. |

§ 521, Action for waste by heir, devisee, or grantor of reversion.
An heir or devisee may maintain an action for waste, committed in
the time of his ancestor or testator, as well as in his own time. The
grantor of a reversion may maintain an action for waste, com-
mitted before he aliened the same.

[Code, § 1652, without change. ]

§ 522. Action for waste by ward against guardian. Such an
action may also be maintained against a guardian by his ward,
either before or after the termination of the guardianship, for
waste, committed upon the real property of the ward, during the
guardianship.

[Code, § 1653, without change. ]

§ 523. Action for waste by grantee of real property sold under
execution. Where real property is sold by virtue of an execution,
the person, to whom a conveyance is executed pursuant to the sale,
may maintain an action for waste, committed thereon after the
sale, against the person, who was then in possession of the property.

[Code, § 1654, without change. ]

§ 524. Judgment in action for waste against tenant of particular
estate. If the plaintiff recovers in an action for waste, other than
Reat Properry Law AMENDMENTS 1321

an action brought as prescribed in the next section, the final judg-
ment must award to him treble damages. Where the action is
brought by the person next entitled to the reversion, and it
appears, in like manner, that the injury to the estate in reversion
is equal to the value of the tenant’s estate or unexpired term, or
that it was done maliciously, the final judgment must also award
to the plaintiff the forfeiture of the defendant’s estate, and the
possession of the place wasted.

[Code, § 1655, without change. ]

§ 525, Action for waste against joint tenant or tenant in common.
An action for waste may also be maintained, by a joint tenant or
tenant in common, against his co-tenant, who commits waste upon
the real property held in joint tenancy or in common. If the
plaintiff recovers therein, he is entitled, at his election, either to
a final judgment for treble damages, as specified in the last section,

or to have partition of the property, as prescribed in the next two
sections.

[Code, § 1656, without change. ]

§ 526. Interlocutory judgment for partition in action for waste.
Where the plaintiff elects to have partition, as prescribed in the
last section, if the pleadings, verdict, report, or decision, do not
determine the rights and interests of the several parties in the
property so held in joint tenancy or in common, the court must
ascertain them, by a reference or otherwise. If it appears that
there are persons, not parties to the action, who must have been
made parties to an action for the partition of the property, they
must be brought in by supplemental summons, and, if necessary,
supplemental pleadings must be made. When the rights and
interests of all the parties are ascertained, an interlocutory judg-
ment for the partition or sale of the property must be rendered,
and the subsequent proceedings thereon must be the same, as in
an action for the partition of the property, except as otherwise
prescribed in the next section.

[Code, § 1657, without change. ]
§ 527. Damages in action for waste to be deducted from defend-

aut’s share. The plaintiff may elect to take final judgment for the
single damages awarded to him, or that, in making the partition,
1322 Report or Joint Leaisitative Commurrrer

or in dividing the proceeds of a sale, so much of the share of the
defendant in the real property, or the procecds thereof, as will be
sufficient to compensate the plaintiff for his single damages, and
the costs of the action, other than the expenses of making the
partition or sale, be laid off or paid, as the case may be, to the
plaintiff. The residue of the property or proceeds, not laid off or
distributed to the plaintiff or the defendant, must be laid off or
paid to the persons entitled thereto, according to their respective
rights and interests.

[Code, § 1658, without change. ]

§ 528. View in action for waste. In an action for waste, it is
not necessary, either upon the execution of a writ of inquiry, or
upon the trial of an issue of fact, that the jury, the judge, or the
referee, should view the property. Where the trial is by a referee,
or by the court without a jury, the referee or the judge may, in his
discretion, view the property, and direct the attorneys for the
parties to attend accordingly. In any other case, the court may, in
its discretion, by order direct a view by the jury.

[Code, § 1659, without change. ]

§ 529, Action for nuisance. An action for a nuisance may be
maintained in any case, where such an action might have been
maintained under the laws in force, immediately before this [act]
section takes effect. A person by whom the nuisance has been
erected, and a person to whom the real property has been trans-
ferred, may be joined as defendants in such an action. A final
judgment in favor of the plaintiff, may award him damages, or
direct the removal of the nuisance, or both. This [article] section
does not affect an action, wherein the complaint demands judgment
for a sum of money only. .

[Code, $$ 1660-16638, without change. |

§ 5380. Action against certain persons holding over as trespassers.
A person in possession of real property, as guardian or trustee
for an infant, or having an estate determinable upon one or more
lives, who holds over and continues in possession, after the de
termination of his trust or particular estate, without the express
Reau Properry Law AMENDMENTS 1323

consent of the person then immediately entitled, is a trespasser.
An action may be maintained against him, or his executor or
administrator, by the person so entitled, or his executor or admin-
istrator, to recover the full value of the profits, received during
the wrongful occupation.

[Code, § 1664, without change. ]

§ 531, Action by reversioner or remainderman. A person, seized
of an estate in remainder or reversion, may maintain an action
founded upon an injury done to the inheritance, notwithstanding
any intervening estate for life or for years.

[Code, § 1665, without change. ]

§ 532, Action by joint tenant or tenant incommon; may maintain
action against co-tenant. A joint tenant or a tenant in common of
real property, or his executor or administrator, may maintain an
action to recover his just proportion against his co-tenant, who
has received more than his own just proportion, or against his
executor or administrator.

[Code, § 1666, without change. ]

§ 533. Action for cutting or carrying off trees or timber. If any
person cuts down or carries off any wood, underwood, tree, or
timber, or girdles or otherwise despoils a tree on the land of
another, without the owner’s leave; or on the common, or other
land, of a city, village, or town, without having right or privilege
in those lands, or license from the proper officer; an action may
be maintained against him, by the owner, or the city, village, or
town, as the case may be.

[Code, § 1667, without change. ]

§ 534, When treble damages may be recovered in such action. In
an action brought as prescribed in the last section, the plaintiff
may state in his complaint the amount of his damages, and demand
judgment for treble the sum, so stated. Thereupon, if the
inquisition, or, where issues of fact are tried, the verdict, report
or decision, awards him any damages, he is entitled to judgment
1324 Report or Joint Leaisuative Commitrer

for treble the sum so awarded, except that in either of the following
cases, judgment must be rendered for single damages only:

1. Where the verdict, report, or decision finds affirmatively that
the injury, for which the action was brought, was casual and
involuntary ; or that the defendant, when he committed the injury,
had probable cause to believe that the land was his own.

2. Where the defendant has pleaded, and the verdict, report, or
decision finds affirmatively, that the injury, for which the action
was brought, was committed by taking timber, for the purpose of
making or repairing a public road, or a public bridge, or by taking
any wood, underwood, or tree, for a like purpose, by authority of
a [commissioner or overseer of highways] town officer having
charge of such construction or repairs.

[Code, § 1668, without change, except as indicated by italicized
matter. |

§ 535, Action for forcible entry or detainer; treble damages. If
a person is disseized, ejected, or put out of real property, in a
forcible manner; or after he has been put out, is held and kept
out, by force, or by putting him in fear of personal violence, he is
entitled to recover treble damages, in an action therefor against
the wrong-doer.

[Code, § 1669, without change. ]

§ 536. Actions relating to real property situate without the
state. An action may be maintained in the courts of this state to
recover damages for injuries to real estate situate without the
state, or for breach of contracts or of covenants relating thereto,
whenever such an action could be maintained in relation to per-
sonal property without the state. The action must be tried in the
county in which the parties or some one thereof resides, or if no
party resides within the state, in any county.

[Code, § 982a, without change. ]
Reat Property Law AMENDMENTS 1325

ARTICLE 17

PROCEEDINGS TO FORECLOSE A MORTGAGE

Section 540,
541.
542,
548.
544,
545.
546.
547,
548.
549.
550.

551.
552.
553.

554.
555.
556.
557,
558.
559.
560,
561.
562.
563.

BY ADVERTISEMENT

When mortgage may be foreclosed.

Notice of sale; how given.

Notice of sale; how served.

Duty of county clerk.

Contents of notice of sale.

Sale; how postponed.

Sale; how conducted.

Mortgagee or successor in interest may purchase.

Effect of sale.

Affidavits on sale.

When one affidavit suffices; printed notice to be
annexed,

Affidavits may be filed and recorded.

Note upon record of mortgage.

Deed not necessary. When affidavits not necessary ;
but purchaser may require them.

Costs allowed

Expenses allowed.

Taxation of costs and expenses.

Surplus money to be paid into supreme court.

Petition for surplus.

Proceedings on petition.

Order for distribution.

Limitation of last four sections.

Delivery of certain affidavits to purchaser,

Application of this article to mortgages of the state.

§ 540. When mortgage may be foreclosed. A mortgage upon real
property, situated within the state, containing therein a power
to the mortgagee, or any other person, to sell the mortgaged
property, upon default being made in a condition of the mortgage,
may be foreclosed in the manner prescribed in this [title]

article, where the following requisites concur : ih
1. Default has been made in a condition of the miortgage,

whereby the power to sell has become operative.
1326 Report or Joint Luaisuative Commirrer

2. An action has not been brought to recover the debt secured
by the mortgage, or any part thereof; or, if such an action has
been brought, it has been discontinued, or final judgment has
been rendered therein against the plaintiff, or an execution, issued
upon a judgment rendered therein in favor of the plaintiff has
been returned wholly or partly unsatisfied.

3. The mortgage has been recorded in the proper book for
recording mortgages, in the county wherein the property is situ-
ated.

4. The first notice required by subdivision one of the next
section is published within the time in which an action could be
maintained to foreclose such mortgage

[Code, § 2387, without change. ]

§ 541. Notice of sale; how given. The person entitled to execute
the power of sale, must give notice, in the following manner, that
the mortgage will be foreclosed, by a sale of the mortgaged prop-
erty, or a part thereof, at a time and place specified in the notice:

1. A copy of the notice must be published, at least once in each
of the twelve weeks, immediately preceding the day of sale, in a
newspaper published in the county or in a municipal corporation
a part of which is within the county in which the property to be
sold, or a part thereof, is situated.

2. A copy of the notice must be fastened up, at least eighty-four
davs before the day of sale, in a conspicuous place, at or near the
entrance of the building, where the county court of each county,
wherein the property to be sold is situated, is directed to be held;
or, if there are two or more such buildings in the same county,
then in a like place, at or near the entrance of the building nearest
to the property; or, in the city and county of New York, in a like
place, at or near the entrance of the building where the trial and
special terms of the supreme court of the first judicial district are
directed by law to be held.

3. A copy of the notice must be delivered, at least eighty-four
days before the day of sale, to the clerk of each county, wherein
‘the mortgaged property, or any part thereof, is situated.

4. A copy of the notice must be served, as prescribed in the
next section, upon the mortgagor, or, if he is dead, upon his
executor or administrator, if an executor or administrator has been
appointed, and also upon his heirs, providing he died the owner
of the mortgaged premises. A copy of the notice may also be
Reat Property Law AMENDMENTS 1327

served in a like manner upon a subsequent grantee or mortgagee
of the property whose conveyance was recorded, in the proper
office for recording it in the county, at the time of the first pub-
lication of the notice of sale; upon the wife or widow of the
mortgagor, and the wife or widow of each subsequent grantee
whose conveyance was so recorded, then having an inchoate or
vested right of dower, or an estate in dower, subordinate to the
lien of the mortgagee; or in the event of the death of the sub-
sequent grantee, who was at the time of his death the owner of the
mortgaged premises, then upon his heirs or upon any person,
then having a lien upon the property, subsequent to the mortgage
by virtue of a judgement or dezree duly docketed in the county
clerk’s office and constituting a specific or general lien upon the
property. The notice, specified in this section, must be subscribed
by the person entitled to execute the power of sale, unless his name
distinctly appears in the body of the notice, in which case it may
be subscribed by his attorney or agent.

[Code, § 2388, without change. ]

§ 542. Notice of sale; how servel. Service of notice of the sale,
as prescribed in subdivision fourth of the last section, must be
made as follows:

1. Upon the mortgagor, his wife, widow, executor, or adminis-
trator, or a subsequent grantee of the property, whose convey-
ance is upon record, or his wife or widow; by delivering a copy
of the notice, as prescribed [in article first of title first of chapter
fifth of this act,] by law for delivery of a copy of a summons in
a civil action in a court of record, in order to make personal service
thereof upon the person to be served; or by leaving such a copy,
addressed to the person to be served, at his dwelling-house, with a
person of suitable age and discretion at least fourteen days before
the day of sale. If said mortgagor is a foreign corporation, or
being a natural person, he, or his wife, widow, executor or adminis-
trator, or a subsequent grantee of the property whose conveyance
is upon record, or his wife or widow, is not a resident of or within
the state, then service thereof may be made upon them in like
manner without the state, at least twenty-eight days prior to the
day of sale.

2. Upon any other person, either in the same method, or by
depositing a copy of the notice in the post-office, properly inclosed
1328 Report or Joint Leaistatrive Commirrer

in a postpaid wrapper, directed to the person to be served, at his
place of residence, at least twenty-eight days before the day of sale.

[Code, § 2389, without change of substance. |

§ 543. Duty of county clerk. A county clerk, to whom a copy of
a notice of sale is delivered, as prescribed in subdivision third
of the last section but one, must forthwith affix it in a book kept
in his office for that purpose; must make and subscribe a minute,
at the bottom of the copy, of the time when he received and affixed
it; and must index the notice to the name of the mortgagor,

[Code, § 2390, without change. ] :

§ 544, Contents of notice of sale. The notice of sale must
specify: a

1. The names of the mortgagor, of the mortgagee and of each
assignee of the mortgage.

2. The date of the mortgage, and the time when, and the place
where, it is recorded.

3. The sum claimed to be due upon the mortgage, at the time
_of the first publication of the notice; and, if any sum secured by
the mortgage is not then due, the amount to become due thereupon.

4. A description of the mortgaged property, conforming sub-
stantially to that contained in the mortgage,

[Code, § 2391, without change. ]

§ 545. Sale; how postponed. The sale may be postponed, from
‘time to time. In that case a notice of the postponement must be
published, as soon as practicable thereafter, in the newspaper in
which the original notice was published ; and the publication of the
original notice, and of each notice of postponement, must be con-
‘tinued, at least once in each week, until the time to which the sale
is finally postponed.

['Code, § 2392, without change. ]

§ 546. Sale; how conducted. The sale must be at public auction,
in the day-time, on a day other than ‘Sunday or a public holiday,
in a county in which the mortgaged property, or a part thereof,
is situated; except that, where the mortgage is to the people of
the state, the sale may be made at the Capitol. If the property
consists of two or more distinct farms, tracts, or lots, they must be
Reat Propverry Law AMENDMENTS 1829

sold separately ; and as many only of the distinct farms, tracts, or
‘lots, shall be sold, as it is necessary to sell, in order to satisfy the
amount due at the time of the sale, 4nd the costs and expenses
allowed by law. But where two or more buildings are situated
upon the same city lot, and access to one is obtained through the
other, they must be sold together. -

(Code, § 2393, without change. ]

§ 547. Mortgagee or successor in interest may purchase. The
mortgagee, or his assignee, or the legal representative of either,
may, fairly and in good faith, purchase the mortgaged property.
or any part thereof, at the sale.

['Code, § 2394, without change. ]

§ 548. Effect of sale. A sale, made and conducted as prescribed
in this [title] article, to a purchaser in good faith, is equivalent
to a sale, pursuant to Judgment in an action to foreclose the mort-
gage, so far only as to be an entire bar of all claim or equity of
redemption, upon, or with respect to, the property sold, of each
of the following persons: 7 ee

1. The mortgagor, his heir, devisee, executor or administrator.

2. Each person claiming under any of them, by virtue of a
title or of a lien by judgment or decree, subsequent to the mort-
gage, upon whom the notice of sale was served, as prescribed in
this [title] article.

3. Each person so claiming, whose assignment, mortgage, or
other conveyance was not duly recorded in the proper book for
recording the same in the county, or whose judgment or decree
was not duly docketed in the county clerk’s office, at the time of
the delivery of a copy of the notice of said sale to the clerk of the
county; and the executor, administrator, or assignee of such a
person. :

4, Every other person, claiming under a statutory lien’ or
incumbrance, created subsequent to the mortgage, attaching to the
title or interest of any person, designated in either of the fore-
going subdivisions of this section. ‘

5. The wife or widow of the mortgagor, or of a subsequent
grantee, upon whom notice of the sale was served as prescribed in
this [title] arttcle, where the lien of the mortgage was superior
to her contingent or vested right of dower, or her estate in dower.

['Code, § 2395, without change. ]
1330 Report or Joint Lagisiative ComMitrEer

§ 549, Affidavits on sale. An affidavit of the sale, stating the
time when, and the place where, the sale was made; the sum bid
for each distinct parcel, separately sold; the name of the pur-
chaser of each distinct parcel; and the name of the person or per-
sons, court officer or other officer, to whom the proceeds of the sale
were paid, and the sums thereat must be made by the person who
officiated as auctioneer upon the sale. An affidavit of the publica-
tion of the notice of sale, and of the notice or notices of postpone-
ment, if any, may be made by the publisher or printer of the news-
paper in which they were published, or by his foreman or prin-
cipal clerk. An affidavit of the affixing of a copy of the notice, at
or near the entrance of the proper courthouse, may be made by
the person who so affixed it, or by any person who saw it so affixed,
at least eighty-four days before the day of sale. An affidavit of
the affixing of a copy of the notice in the book, kept by the county
clerk, may be made by the county clerk, or by any person who saw
it so affixed, at least eighty-four days before the day of sale. An
affidavit of the service of a copy of the notice upon the mortgagor
or upon any other person, upon whom the notice must or may be
served, may be made by the person who made the service. Where
two or more distinct parcels are sold to different purchasers, sepa-
rate affidavits may be made with respect to each parcel, or one set
of affidavits may be made for all the parcels.

['Code, § 2396, without change. |

§ 550. When one affidavit suffices; printed notice to be annexed.
The matters required to be contained in any or all of the affidavits.
specified in the last section, may be contained in one affidavit,
where the same person deposes with respect to them. A printed
copy of the notice of sale must be annexed to each affidavit; and a
printed copy of each notice of postponement must be annexed to
the affidavit of publication, and to the affidavit of sale. But one
copy of the notice suffices for two or more affidavits, when they
all refer to it and are annexed to each other and filed and recorded
together.

[Code, § 2397, without change. ]
§ 551. Affidavits may be filed and recorded. The affidavits speci-

fied in the last two sections, may be filed in the office for recording
deeds and mortgages, in the county where the sale took place.
Reat Prorerty Law AMENDMENTS 1331

They must be recorded at length by the officer with whom they
are filed, in the proper book for recording deeds. The original
affidavits, so filed, the record thereof, and a certified copy of the
record, are presumptive evidence of the matters of fact therein
stated, with respect to any property sold which is situated in that
county. Where the property sold is situated in two or more
counties, a copy of the affidavits, certified by the officer with whom
the originals are filed, may be filed and recorded in each other
county, wherein any of the property is situated. Thereupon the
copy and the record thereof have the like effect, with respect to
the property in that county, as if the originals were duly filed
and recorded therein.

[Code, § 2398, without change. ]

§ 552. Note upon record of mortgage. A clerk or a register, who
records any affidavits, or a certified copy thereof, filed with him,
must make a note, upon the margin of the record of the mortgage,
in his office, referring to the book and page, or the copy thereof,
where the affidavits are recorded.

[Code, § 2399, without change. ]

§ 553. Deed not necessary. When affidavits not necessary; but
purchaser may require them. The purchaser of the mortgaged
premises, upon a sale conducted as prescribed in this [title]
article, obtains title thereto, against all persons bound by the sale,
without the execution of a conveyance. Except where he is the
person authorized to execute the power of sale, such a purchaser
also obtains title, in like manner, upon payment of the purchase-
money, and compliance with the other terms of sale, if any,
without the filing and recording of the affidavits, as prescribed
in the last section but one. But he is not bound to pay the pur-
chase-monev, until the affidavits, specified in that section, with
respect to the property purchased by him, are filed, or delivered
or tendered to him for filing.

[Code, § 2400, without change. |
§ 554. Costs allowed. The following costs, in addition to the

expenses specified in the next section, are allowed, in proceedings
taken as prescribed in this [title] article:
1332 Report or Joint Legisuarive ComMitrer

1. For drawing a notice of sale, a notice of the postponement
of a sale, or an affidavit, made as prescribed in thig [title]
article, for each folio, twenty-five cents; for making each neces-
sary copy thereof, for each folio thirteen cents.

2. For serving each copy of the notice of sale, required or ex-
pressly permitted to be served by this [titleJ article, and for
affixing each copy thereof, required to be affixed upon the court-
house, as prescribed in this [title] article, one dollar.

3. For superintending the sale, and attending to the execution
of the necessary papers, ten dollars.

[Code, § 2401, without change. ]

§ 555. Expenses allowed. The sums actually paid for the fol-
lowing services, not exceeding the fees allowed by law for those
services, are allowed in proceedings, taken as prescribed in this
[title] article:

1. For publishing the notice of sale, and the notice or notices
of postponement, if any, for a period not exceeding twenty-four
weeks.

2. For the services specified in section [2390] five hundred
and forty-three of this [act] chapter.

.8. For recording. the affidavits; and also, where the property
sold is situated in two or more counties, for making and recording
the necessary certified copies thereof.

4. For necessary postage and searches,

[Code, § 2402, without change. ]

§ 556. Taxation of costs and expenses. The costs and expenses
must be taxed, upon notice, by the clerk of the county where the
sale took place, upon the request and at the expense of any person,
interested in the payment thereof. [Each provision of this act,
relating to the taxation of costs in the supreme court, and the
review thereof, applies to such a taxation.J Such costs and ex-
penses shall be taved, and such taration may be reviewed, in the
same manner as costs tn a civil action in the supreme court.

[Code, § 2403, without change of substance. ]
§ 557, Surplus money to be paid into supreme court. An attorney

or other person who receives any money, arising upon a sale, made
as prescribed in this [title] article, must, within ten days after
Reat Properry Law AMENDMENTS 1333

he receives it, pay into the supreme court the surplus, exceeding
the sum due and to become due upon the mortgage, and the costs
and expenses of the foreclosure, in like manner and with like
effect, as if the proceedings to foreclose the mortgage were taken
in an action, brought in the supreme court, and triable in the
county where the sale took place.

[Code, § 2404, without change. ]

§ 558, Petition for surplus. A person, who had, at the time of
the sale, an interest in or lien upon the property sold, or a part
thereof, may, at any time before an order is made, as prescribed
in the next section but one, file in the office of the clerk of the
county, where the sale took place, a petition stating the nature
and extent of his claim, and praying for an order, directing the
payment to him of the surplus money, or a part thereof.

[Code, § 2405, without change. ]

§ 559. Proceedings on petition. A person filing a petition, as
prescribed in the last section, may, after the expiration of twenty
days from the day of sale, apply to the supreme court, at a term
held within the judicial district, embracing the county where his
petition is filed, for an order, pursuant to the prayer of his peti-
tion. Notice of the application must be served, in the manner
prescribed [in this act] by law for the service of a paper upon an
attorney in [an] a civil action, in a court of record, upon each per-
son, who has filed a like petition, at least eight days before the
application ; and also upon each person, upon whom a notice of
sale was served, as shown in the affidavit of sale, or upon his execu-
tor or administrator. But, if it is shown to the court, by affidavit,
that service upon any person, required to be served, cannot be so
made with due diligence, notice may be given to him in any
manner which the court directs.

['Code, § 2406, without change of substance. ]

§ 560. Order for distribution. Upon the presentation of the
petition, with due proof of notice of application, the court
must make an order referring it to a suitable person to ascertain
and report the amount due to the petitioner, and to each other
person, which is a lien upon the surplus money; and the priorities
of the several liens thereupon. Upon the coming in and confirma-
1334 Report or Joint Leaistarive CoMMITTrEn

tion of the referee’s report, the court must make such an order, for
the distribution of the surplus money, as justice requires.

[Code, § 2407, without change. ]

§ 561. Limitation of last four sections. The last four sections do
not apply to surplus money, arising upon the sale of real property,
of which a decedent died seized where letters testamentary or
letters of administration, upon the decedent’s estate, were, within
two years before the sale, issued from a surrogate’s court within
the state, having jurisdiction to issue them,

[Code, § 2408, without change. |

§ 562. Delivery of certain affidavits to purchaser. Each county
clerk and register in this state, in whose office, affidavits in fore
closure of mortgages by advertisement, or the certified copies there-
of, have been or shall be filed and recorded pursuant, to the provi-
sions of this [title] article is hereby authorized to deliver the
same to the purchaser of the mortgaged property on the foreclosure
sale, and such purchaser shall be entitled to such delivery.

[Code, § 2408a, without change. ]

§ 563. Application of this article to mortgages of the state. This
[title] article does not affect any provision of law, inconsistent
therewith, especially relating to the foreclosure of mortgages to
the people of the state, or to the commissioners for loaning certain
moneys of the United States.

[Code, § 2409, without change. ]

ARTICLE 18

PROCEEDINGS TO DISCOVER THE DEATH OF
A TENANT FOR LIFE

Section 570. Petition for production of tenant for life.
571. Contents of petition.
572. Service of petition and notice.
573. Proceedings upon presentation of petition.
574. Service of order; powers of court or referee.
575. Habeas corpus.
Reat Property Law AMENDMENTS 1335

Section 576. Report of referee.

577. Dismissal of petition when order complied with.

578. When life-tenant deemed dead, and petitioner let
into possession.

579. Commission to be issued if life-tenant is without the
State.

580, General provisions respecting the commission.

581. Petitioner to give notice of its execution.

582. Execution thereof.

588. Proceedings on return of commission.

584. Costs.

585. Property; when restored.

586. Remedy of person evicted for rents and profits.

587. Order not conclusive in ejectment.

§ 570. Petition for production of tenant for life. A person
entitled to claim real property, after the death of another who has
a prior estate therein, may, not oftener than once in each calendar
year, apply by petition to the supreme court, at a special term
thereof, held within the judicial district, wherein the property, or
a part thereof, is situated, for an order, directing the production
of the tenant for life, as prescribed in this [title] article, by a
person, named in the petition, against whom an action of ejectment
to recover the real property can be maintained, if the tenant for
life is dead or, where there is no such person, by the guardian,
husband, trustee, or other person, who has, or is entitled to, the
custody of the person of the tenant for life, or the care of his
estate.

[Code, § 2302, without change. ]

§ 571. Contents of petition. The petition must be in writing,
and verified by the affidavit of the petitioner, to the effect, that the
matters of fact therein set forth are true. It must contain:

1. A description of the real property, and a statement of the
petitioner’s interest therein, and of such other facts as show that
the case is within the provisions of the last section.

2. An averment that the petitioner believes that the person,
upon whose life the prior estate depends, is dead, together with a
statement of the grounds upon which the petitioner’s belief is
founded.

[ Code, § 2303, without change. ]
1336 Report or Jornt Leetsuative ComMitrer

§ 572. Service of petition and notice. A copy of the petition,
including the affidavit, together with notice of the time and place
at which the petition will be presented, must be personally served,

at least fourteen days before its presentation, upon the person
required, by the prayer thereof, to produce the tenant for life.

[ Code, § 2304, without change. ]

§ 573. Proceedings upon presentation of petition. Upon the
presentation of the petition and affidavit, with due proof, by affi-
davit, of service of a copy thereof, and of the notice, if sufficient
cause to the contrary is not shown by the adverse party, the court
must either issue a commission, as prescribed in the following
sections of this [title] article; or make an order, directing the
adverse party, at a time and place therein specified, before the
court, or a referee therein designated, to produce the person upon
whose life the prior estate depends, or, in default thereof, to prove
that he is living.

[Code, § 2805, without change. ]

§ 574. Service of order; powers of court or referee. Where an
order, requiring the production of the tenant for life, or proof
that he is living, is made as prescribed in the last section, a cer-
tified copy thereof must be served, at least fourteen days before
the time therein specified, upon the person required to make the
production or proof, or upon his attorney. Upon presentation
6f proof of service, by affidavit, the court or the referee must. at
the time and place specified in the order, or at the time and place
to which the hearing may be adjourned, hear the allegations and
proofs of the parties, respecting the identity of any person pro-
duced, with the person whose death is in question; or, if the latter
person is not produced, respecting the reasons for the failure to
produce him, and whether he is living. Where a referee is ap-
pointed, he has the same powers, and is entitled to the same com-
pensation, as a referee appointed for the trial of an issue in [an]
a civil action in a court of record.

[Code, § 2306, without change of substance. ]
§ 575. Habeas corpus. If it appears, by affidavit, to the satis-

faction of the court, that the person required to be produced is
imprisoned within the State, for any cause, except upon a sen-
Reat Proprrry Law AMENDMENTS 1337

tence for a felony, or is kept or detained, within the State, by
any person, the court may, either before or after making the
order for production, issue a writ of habeas corpus to bring him
before it, or before the referee, as the case requires. The writ
must be served and executed, and disobedience thereto may be
punished, as where a writ of habeas corpus is issued, to inquire
into the cause of the detention of a prisoner.

[Code, § 2307, without change. |

-§ 576., Report of referee. The referee must deliver his report
to the petitioner, or file it with the clerk, within ten days after the
case is closed. He must state therein, whether any person was or
was not produced before him, as being the person whose death
isin question. He must append thereto, in the form of deposi-
tions, the proofs, if any, respecting the identity of any person so
produced, with the person whose death is in question; or if no one
is so produced, upon the question whether the latter person is
hving. He must also state, in his report, his conclusions upon the
questions controverted before him.

[Code, § 2308, without change. ]

§ 577. Dismissal of petition when order complied with. If it
appears, to the satisfaction of the court, upon the referee’s report,
and the proofs thereto appended; or, where a referee is not
appointed, upon the allegations and proofs of the parties before
the court; that the party, required to produce the tenant for life,
or to prove his existence, has fully complied with the order, the
court must make an order dismissing the petition, and requiring
the petitioner to pay the costs of the proceedings.

[Code, § 2309, without change. ]

§ 578. When life-tenant deemed dead, and petitioner let into
possession. If it appears, from the referee’s report, or upon the
hearing before the court, that the person, upon whose life the
prior estate depends, was not produced; and if the party required
to produce him, or to prove: his existence, has not proved, to the
satisfaction of the court, that he is living; a final order must be
made, declaring that he is presumed to be dead, for the purpose
of the proceedings, and directing that the petitioner be forthwith
1338 Report or Jomnr Leaisuative ComMitTEE

let into possession of the real property, as if that person was
actually dead.

[Code, § 2310, without change. ]

§ 579, Commission to be issued if life-tenant is without the state.
If before or at the time of the presentation of the referee’s report
to the court, or, where a referee is not appointed, at any time
before the final order is made, the party, upon whom the petition
and notice are served, presents to the court presumptive proof,
by affidavit, that the person, whose death was in question, is, or
lately was, at a place certain, without the state, the court must
make an order, requiring the petitioner to take out a commission,
directed to one or more persons, residing at or near that place,
either designated in the order, or to be appointed upon a sub-
sequent application for the commission for the purpose of obtain-
ing a view of the person, whose death is in question, and of taking
such testimony respecting his identity, as the parties produce.
The order must also direct that the proceedings upon the petition
be stayed, until the return of the commission; and that the peti-
tion be dismissed, with costs, unless the petitioner takes out the
commission within a time specified in the order, and diligently
procures it to be executed and returned, at his own expense.

[Code, § 2311, without change. ]

§ 580. General provisions respecting the commission. It is not
necessary, unless the court specially so directs, that the wit-
nesses to be examined should be named in the commission, or that
interrogatories should be annexed thereto. The commission must
be executed and returned, and the deposition taken must be filed
and used, as prescribed by law for depositions taken without the
state for use within the state [those purposes in article second of
title third of chapter ninth of this act], except as otherwise spe-
cially prescribed in this [title] article.

[Code, § 2312, without change of substance. ]

§ 581. Petitioner to give notice of its execution. The petitioner
must give to the adverse party, or his attorney, written notice of the
time when, and the place where, the commissioner or commissioners
will attend, for the purpose of executing the commission, as fol-
lows:
Reat Property Law AMENDMENTS 1339

1. If the place, where the commission is to be executed, is within
the United States, or the dominion of Canada, he must give at least
two months’ notice.

2. If it is within any of the West India islands, he must give
at least three months’ notice.

3. In every other case, he must give at least four months’
notice. F

Notice may be given, as required by this section, by serving it as
prescribed (Lin this act by law for the service of a paper upon an
attorney, in [an] a civil action in the supreme court.

[Code, § 2313, without change of substance. |

§ 582. Execution thereof. The commissioner or commissioners
possess the same powers, and must proceed in the same manner, as
a referee, appointed by an order requiring the production of the
tenant for life, or proof of his existence; except that they cannot
proceed, unless a person is produced before them, as being the
person whose death is in question. The return to the commission
must expressly state whether any person was or was not so pro-
duced. The testimony, respecting the identity of a person so pro-
duced, must be taken, unless otherwise specially directed by the
court, as prescribed [in chapter ninth of this act] by law, for
taking the deposition of a witness upon oral interrogatories; except
that it is not necessary to give any other notice of the time and
place of examination, than that prescribed in the last section.

[Code, § 2314, without change of substance. ]

§ 583, Proceedings on return of commission. Upon the return of
the commission, the proceedings are the same as upon the report of
a referee, as prescribed in sections [2309 and 2310] five hun-
dred and seventy-seven and five hundred and seventy-eight of this
[act] chapter; but the court may, in its discretion, receive adci-
tional proofs from either party.

['Code, § 2315, without change of substance. J

§ 584, Costs. Where costs of a special proceeding, taken as
prescribed in this [title] article, are awarded, they must be fixed
by the court at a gross sum, not exceeding fifty dollars, in addition
to disbursements. Where provision is not specially made in this
1340 Report or Joint Legisiative ComMrtrer

[title] article for the award of costs, they may be denied, or
awarded to or against either party, as justice requires.

[Code, § 2316, without change. |

§ 585. Property; when restored. The possession of real property,
which has been awarded to the petitioner; as prescribed in this
[title] article, upon the presumption of the death of the person,
upon whose life the prior estate depends, must be restored, by the
order of the court, to the person evicted, or to his heirs or legal
representatives, upon the petition of the latter, and proof, to the
satisfaction of the court, that the person presumed to be dead is
living. The proceedings upon such an application are the same,
as prescribed in this [title} article, upon the application of the
person to whom possession is awarded.

[Code, § 2317, without change. ]

§ 586. Remedy of person evicted for rents and profits. A person
evicted, as prescribed in this [title} article, may, if the presump-
tion, upon which he is evicted, is erroneous, maintain an action
against the person who has occupied the property, or his executor
or administrator, to recover the rents and profits of the property,
during the occupation, while the person, upon whose life the prior
estate depends, is or was living.

[Code, § 2318, without change. ]

§ 587. Order not conclusive in ejectment. <A final order, made
as prescribed in this [title] article, awarding to the petitioner
the possession of real property is presumptive evidence onlv, in an
action of ejectment, brought against him by the person evicted, or
in an action brought as prescribed in the last section, of the life
or death of the person, upon whose life the prior estate depends.

[Code, § 2319, without change. ]
Reat Property Law AMENDMENTS 1341

ARTICLE #19

PROCEEDINGS FOR VOLUNTARY PARTITION
OF INFANT’S OR INCOMPETENT’S REAL
PROPERTY

Section 590. Petition by guardian or committee for authority to
agree.
591. Contents of petition.
592. Court may authorize partition.
5938. Effect of releases.

§ 590. Petition by guardian or committee for authority to agree.
Where an infant, idiot, lunatic, or habitual drunkard, holds real
property, in joint tenancy or in common, the general guardian of
the infant, or the committee of the idiot, lunatic, or habitual
drunkard, may apply to the supreme court or to the county court
of the county, wherein the real property is situated, for author-
ity to agree to a partition of the real property. Where such
application affects the interests of an incompetent person who has
been committed to a state institution, and is an inmate thereof,
notice of such application must be given to the superintendent,
acting superintendent, or state officer having special jurisdiction
over the institution where the incompetent person in confined.

[Code, § 1599, without change. |

§ 591. Contents of petition. Such an application must be by
a petition, which must describe the real property proposed and
to be partitioned; must state the rights and interests of the sev-
eral owners thereof; must specify the particular partition pro-
posed to be made; seal must be verified by affidavit. The court
may order notice ee the application to be given to such persons
as it thinks proper.

[Code, § 1591, without change. ]

§ 592. Court may authorize partition. If, after due inquiry
into the merits of the application, by a reference or otherwise,
the court is of the opinion that the interests of the infant, or of
the idiot, lunatic, or habitual drunkard will be promoted by the
1342 Report or Jour Leaistarive ComMirrer

partition, it may make an order authorizing the petitioner to
agree to the partition proposed, and in the name of the infant,
or of the idiot, lunatic, or habitual drunkard, to execute releases
of his right and interest in and to that part of the property waich
falls to the shares of the other joint-tenants or tenants in common.
The court may, in its discretion, for the furtherance of the inter-
ests of said infant, idiot, lunatic, or habitual drunkard, direct
partition to be so made as to set off to him or them his or their
snare in common with any of the other owners, provided the con-
sent in writing thereto of such owners shall be first obtained.

[Code, § 1592, without change. ]

§ 598. Effect of releases. Releases so executed have the same
validity and effect, as if they were executed by the person in
whose behalf they are executed, and as if the infant was of full
age, or the idiot, lunatic, or habitual drunkard was of sound mind,
and competent to manage his affairs.

[ Code, § 1598, without change. ]

§ 2. Article fourteen of such chapter and sections four hun-
dred and sixty to four hundred and sixty-two, both inclusive, are
hereby renumbered article twenty and sections six hundred to six
hundred and two thereof, respectively.

§ 8. Sections nine hundred and eighty-two-a, fifteen hundred
and ninety to fifteen hundred and ninety-three, both inclusive,
fifteen hundred and ninety-six to sixteen hundred and seven, both
inclusive, sixteen hundred and nine to sixteen hundred and
twenty-five, both inclusive, sixteen hundred and thirty-eight to
sixteen hundred and sixty-nine, both inclusive; sixteen hundred
and seventy-six as to action for dower; sixteen hundred and
eighty as to action for dower; sixteen hundred and eighty-five as
to action for dower; twenty-three hundred and two to twenty-three
hundred and nineteen, both inclusive, twenty-tnree hundred and
eighty-seven to twenty-four hundred and eight, both inclusive,
twenty-four hundred and eight-a, twenty-four hundred and nine,
of the code of civil procedure, and all acts amendatory thereof,
are hereby repealed.

§ 4. This act shall take effect April fifteenth, nineteen hun-
dred and twenty.
STATE FINANCE LAW
AMENDMENTS

[1343]
STATE FINANCE LAW AMENDMENTS

AN ACT to amend the state finance law, in relation to money paid
into court.

The People of the State of New York, represented in Senate
and Assembly, do enact as follows:

Section 1. Chapter fifty-eight of the laws of nineteen hundred
and nine, entitled “An act in relation to state finance, constituting
chapter fifty-six of the consolidated laws,” is hereby amended by
inserting therein six new sections, to be sections forty-four-a, forty-
four-b, forty-four-c, forty-four-d, forty-four-e and forty-four-f, to
read as follows:

§ 44-a, Examination by comptroller of money and securities paid
into court. The comptroller may examine the books, accounts and
vouchers of every bank and trust company or other depository or
of any public official in the state, in anywise relating to moneys
and securities paid into court, under an order of any court of
record or directed to be paid into court by statute; and where the
same has not been paid to the chamberlain of the city of New
York or to any county treasurer of the state, the comptroller upon
application duly made shall be entitled to an order directing the
payment and transfer of all such money and securities, from any
such bank, trust company, depository or public official to the
treasurer of the proper county, and in the city of New York to
the city chamberlain.

[Code, § 744-a, without change. ]

§ 44-b. Title of successor of custodian of court funds. On the
expiration of the official term of a [county treasurer] public
officer, or where a vacancy occurs in his office, by death or other-
wise, all public stock, bonds, mortgages, and other securities
deposited into court and held by him, [as prescribed in this title, J
vest in his successor in office; and all money paid into court and
deposited[[, as prescribed in this title,J in a bank, trust company

(1345]
43
1B Revorr ov Jour Leeaistarive ComMrrrer

or other depository, to lis credit, vests in, aud must be carried
to, the account of his successox in office,

[Code, § 750. Included by board in county law, § 154. The
section now applies in terms only to a county treasurer. It has
been broadened to include any custodian of court funds. ]

§ 44-c. Deposit of funds or money paid into court. All funds or
moneys paid into court shall be deposited in such savings bank,
trust company, bank, banking association or with such banker, as
shall be designated by the state comptroller, as soon as received
by the custodian thereof. But the money must be deposited in
the county where the fund belongs, where it can be done con-
veniently and safely and with advantage to the parties interested.

[Code, § 746, without change of substance. Included by
board in judiciary law, § 798. State finance law, § 4, subd. 8,

eo e

gives to the state comptroller supervision of court funds. ]

§ 44-d. Custodian’s books of account of court funds. Every officer
having charge of moneys, securities or other property in the
custody of the court, shall keep a book or books in which he shall
make an exact account thereof. Such book or books shall state
the name of the court, the title of the case, the date of receipt,
from whom received, the amount of money, if any, and a deserip-
tion of the securities or other property received, if any, and each
addition of interest; also the date and description of each order
for payment and the dates and amounts of payments thereunder
and to whom paid; also an account of each change of investment,
if any.

[Code, § 752, without change. Included by board in judi-
ciary law, § 798. ] ,

§ 44-e, Annual reports to comptroller of custodian of court funds.
Every treasurer or financial officer who has in charge or pos-
session or under his control, or who keeps a record of money,
bonds, stocks, mortgages or any other securities or property
deposited into court and held by him [as prescribed in this title],
must, once in each year, make a report to the state comptroller
at the time and in the form and manner which he may prescribe,
containing a true statement of his accounts for the preceding year
Srarée Finance Law AMENDMENTS 1347

or from the time of the last report. ‘This report must be verified
by the oath of such officer, and must be accompanied by the
certificate of the proper officer of each bank or trust company,
stating the exact amount on deposit with such corporation. Every
savings bank, bank or trust company having in its possession,
pursuant to an order of a court of record, money, bonds, stocks,
mortgages or any other securities or property which were not
first deposited in compliance with the provisions of section [seven
hundred and forty-five of this act,} one hundred and thirty-four
of the cwil practice act, must, once in each year, make a report
to the comptroller at such time as he shall prescribe, stating sepa-
rately for each case the name of the court, the title of the action
or proceeding, the date of the receipt, from whom received, for
whom received, the amount of money, if any, a description of the
securities or other property, each addition of interest and each
change of investment, the amount so held at the date of the report,
the date and description of each order directing payment and the
dates and amounts of payments thereunder and to whom made.
Every officer, or bank or trust company mentioned in this section,
shall furnish any additional report to the comptroller or to the
court at such time and in such detail as may be required.

[Code, § 753, without change of substance. Included by

board in county law, § 155. L. 1892, ch. 651, §§ 8, 9, printed
in connection with this section have heretofore been included in

executive law, § 43, and state finance law, § 44.]

§ 44-f, Annual report to appellate division by custodian of court
funds. On or before the first day of February in each year the
county treasurer in each county and the chamberlain of the city
of New York shall file a report duly verified with the appellate
division of the supreme court of the department in which the
county is embraced containing a statement of all moneys in his
hands on the first day of January preceding that have been paid
into court or received by him to the credit of any action or pro-
ceeding, specifically stating the securities in which the moneys
so paid into court are invested or the depositories in which
such moneys are deposited. [In case such county treasurer or
chamberlain refuses to comply with this rule the appellate
division of the department shall issue an order requiring him to
1348 Reporr or Jomnr Leeisuarive Com Mtrrer

file such statement within the time specified therein and obedience
to such order may he enforced as for contempt of court.J

[General Rule of Practice 68. Included hy board in county
law, § 156.]

§ 2. Section seven hundred and forty-four-a, seven hundred and
forty-six, seven hundred and fifty, seven hundred and fifty-two
and seven hundred and fifty-three of the code of civil procedure,
and all acts amendatory thereof, are hereby repealed.

§ 3. This act shall take effect April fifteenth, nineteen hundred
and twenty.
CRIMINAL CODE AMENDMENTS

[1349]
CRIMINAL CODE AMENDMENTS

AN ACT to amend the code of criminal procedure, generally.

The People of the Ntute of New York, represented in Senate
und Assembly, do enact us follows:

Section 1. The code of criminal procedure is hereby amended
by inserting therein two new sections, to be sections five-a and
seven-a, to read, respectively, as follows:

§ 5-a, Criminal and civil prosecutions not merged. Where the
violation of a right admits of a [civil] criminal and also of a
[criminal] civil prosecution, the one is not merged in the other.

[Code Civil Procedure, § 1899, without change of substance. |

§ 7-a. Preference in trial or hearing. A criminal action, includ-
ing an appeal or otaer proceeding in a criminal cause, is entitled,
under the direction of the court, to preference in the trial or
hearing thereof, over all civil actions and special proceedings,
except as prescribed in the [the last] section one hundred and
thirty-nine of the civil practice act.

[Code § 790, without change of substance. Included by
board in code erim. pro. § 541-a, under *‘Appeals.” |

§ 2. Section ten-c of the code of criminal procedure is hereby
renumbered section ten-d, and such code is hereby amended by
adding a new section, to be section ten-c, to read as follows:

§ 10-c. Order to bring up prisoner to testify as witness. 7.
court of record, other than a justice’s court of a city, or a judge
of such a court, or a justice of the supreme court, has power,
upon the application of a party to [and] « criminal action or
[special] proceeding [civil or criminal,] pending therein, to
[issue a writ of habeas corpus] make an order for the purpose
of bringing before the court, a prisoner, detained in a jail or
prison within the state, to testify as a witness in the action or
[special] proceeding in behalf of the appheant.

[1351]
1352 Revorr or Jorny Leaistartive ComMirrer

2. Sections four hundred and thirty-one to four hundred and
thirty-four of the civil practice act apply to such an application
and the proceedings thereupon.

8. Any officer [to] wpon whom [a writ, issued] an order
granted as prescribed in this [article] section, is [delivered]
served, must obey the same, according to the exigency thereof,
and make a return [thereto] accordingly. If he refuses or
neglects so to do, he forfeits to the people, if the [writ was
issued] order was granted upon the application of the attor-
ney-general or a district-attorney, or, in any other case. to tne
party on whose application the order [writ] was [issued]
granted, the sum of five hundred dollars. But where the prisoner
is confined under a sentence to death, a return to that effect
is a sufficient obedience to the [writ] order, without producing
him.

[Subd. 1 is code § 2008, so far as relates to criminal actions
and proceedings. Covered as to “civil” cases in civil practice
act. An “order” is substituted for the “writ.” See code
crim. pro. § 10-b. Subd. 2 is new and makes the civil provisions
applicable. Subd. 3 is code § 2014, amended as indicated, but
without change of substance. All of the code sections referred
to here are repealed by the civil practice act. ]

§ 3. The code of criminal prucedure is hereby amended by
adding at the end of “ Preliminary Provisions” two new sec-
tions to be sections ten-e and ten-f, respectively, to read as follows:

§ 10-e. Abatement of action or proceeding not affected by failure
of term. When a term of a court fails or is adjourned, or the time
or place of holding the same is changed, [as prescribed in this
chapter, an] @ criminal action, special proceeding, writ. process.
recognizance, or other proceeding, [civil or criminal,] return-
able, or to be heard or tried, at that term, is not abated, discon-
tinued, or rendered void thereby; but all persons are bound to
appear, and all proceedings must be had, at the time and place
to which the term is adjourned or changed, or, if it fails. at the
next term, with like effect as if the term was held, as originally
appointed,

[Code § 44. as to criminal actions and proceedings. Included
by hoard in judiciary law, § 1c. |
Croat Cong AMENDMENTS 1358

§ 10-f. Continuance of trial or hearing beyond term. Where the
trial or hearing of an issue of fact, joined in [an] @ criminal
action or special proceeding, [civil or criminal,] has been com-
menced at a term of a court of record, it may, notwithstanding
the expiration of the time appointed for the term to continue,
he continued to the completion thereof; including, if the cause
is tried by a jury, all proceedings taken therein until the actual
discharge of the jury; or, if it is tried by the court without a
jury, until it is finally submitted for a decision upon the merits.

[Code § 45, without change of substance, as to criminal actions
and proceedings. Tneluded by hoard in judieiary law, § 12-d.]

§ 4. Section two hundred and twenty-nine-k of the code of
criminal procedure is hereby amended to read as follows:

§ 229-k. Fine to be imposed on grand jurors for neglect to attend.
The court to which any list of grand jurors so drawn shall be
returned by the sheriff, shall impose a fine not exceeding twenty-
five dollars, for each day that any person duly summoned as
a grand juror shall, without reasonable cause, neglect to attend.
But if it appear that any such person was notified by leaving a
written notice at his place of residence, the court shall suspend
such fine, until the defaulting grand juror shall be notified, as
provided by law. The provisions of law relating to remission or
enforcement of a fine imposed upon a trial juror applies to a fine
imposed upon a grand juror.

[The amendment to this section is derived from the last sen-
tence of subdivision 7 of § 3347 of the code of civil procedure,
which seems to apply to New York and Kings counties only, and
from subdivision one of section thirty-three hundred and fifty-
one, applicable to counties generally. ]

§ 5. The code of criminal procedure ix hereby amended by in-
serting therein a new section, to be section three hundred and
ninety-two-a, to read as follows:

§ 392-a, Pleading in civil action. A pleading tn a@ civil action
cannot be used, in a criminal prosecution against the party, as
proof of a fact admitted or alleged therein.

[Code § 523, last sentence without change of substance. In-
cluded by board in evidence law, § 93. The remainder of the
section is included in proposed civil practice act. ]
1354 Reporr or Jomvry Leaisiative Commirrer

§ 6. Chapter four of title four of part four of the code of
criminal procedure is hereby amended by adding thereto a new
section, to be section three hundred and twelve-a, to read as
follows:

§ 312-a, Production before the court of civil prisoner indicted for
criminal offense. Where a person, who has heen indicted for a
criminal offense is held by a sneriff by virtue of a mandate in a
civil action or special proceeding, the court in which the indict-
ment is pending may make an order requiring the sheriff to bring
him before the court; whereupon the court may make such dis-
position of the prisoner as to it seems proper. The sheriff’s
fees and expenses in so doing, are a county charge of the county
wherein the court is sitting.

[Code of Civil Procedure, § 156, without change. ]

§ 7. The following sections, or parts of sections, of the code
of civil procedure, and all acts amendatory thereof, are hereby
repealed: section one hundred and fifty-six; sections forty-four
and forty-five so far as said sections relate to criminal actions
and proceedings; the last sentence of section five hundred and
twenty-three; sections seven hundred and ninety and eighteen
hundred and nineteen.

§ 8. This act shall take effect April fifteenth, nineten hun-
dred and twenty.
ROCHESTER CITY CHARTER
AMENDMENTS

(1355]
ROCHESTER CITY CHARTER AMENDMENTS

AN ACT to amend chapter seven hundred and fifty-five of the
laws of nineteen hundred and seven, entitled “An act consti-
tuting the charter of the city of Rochester,” in relation to the
city court of such city, and repealing sections thirty-two hun-
dred and twenty-six and thirty-two hundred and twenty-seven of
the code of civil procedure.

The People of the State of New York, represented in Senate
and Assembly, do enact as follows:

Section 1. Chapter seven hundred and fifty-five of the laws
of nineteen hundred and seven, entitled “An act constituting the
charter of the city of Rochester,” is hereby amended by adding
a new section, to be section five hundred and twenty-four-a
thereof, to read as follows:

§ 524-a, Appeals. Appeals may be taken to the county court
of Monroe county from judgments and orders of the city court,
civil branch, of the city of Rochester and from orders of the
judges thereof as provided [in articles one and two of title
eight of chapter nineteen of this act, Ly laws regulating appeals
from justices’ courts, and the provisions thereof[, except section
three thousand sixty-three,] apply to such appeals, except (a)
those authorizing and regulating an appeal for a new trial i the
appellate court, (b) prescribing the papers on which an appeal
is to be heard, (c) prescribing the powers of the appellate court,
herein otherwise regulated, in relation to the judgment appealed
from, grounds of reversal or modification, ordering new trials and
awarding costs, and (d) except as herein otherwise expressly
modified. The appeal must be heard on the return or a certi-
fied or stipulated copy thereof, and may be brought on for hear-
ing in the county court in the same manner wl on the same
notice as motions are or may be brought on for hearing im said
court or may be put on the calendar of said court [as "ponided
in section three thousand sixty-two of this act] im the same man-
ner as an appeal from a judgment of a justice's court. An appel-
lant may apply to the county court to open a default as provided

(1357]
1358 Revorr ov Jovy Lecisnarive CoMMITrErR

[oo section three thousand sixty-four of this act by law ue the
cuse of an appeal from a judgment of a justice's court rendered
upon failure of the defendant to appear, which application may
be heard without the return unless otherwise ordered by the
court; and an appellant may apply upon affidavits and the retum
to said court for a new trial or hearing upon the vround of newly
discovered evidence; the court in either case may stay any or
all proceedings under the judgment or order appealed from upon
such terms as it deems proper, and may grant a new trial or hear-
ing as hereinafter provided upon such terms as it deems proper.
The county court and other appellate courts on such appeals
must render judgment according to the justice of the case, with-
out regard to technical errors or defects which do not affect the
merits, and may affirm or reverse, wholly or partly, or modify,
the judgment or order appealed from ior errors of law or of fact
or because the judgment is excessive or insufficient or contrary
to the evidence or contrary to law, and may, if necessary or
proper, grant a new trial or hearing in the city court, civil
branch, of the city of Rochester, or before a judge thereof, as
may be proper, at a time designated hy it, and thereupon the city
court, civil branch, or judge must proceed, and adjournments
may be granted, a jury trial demanded, and all other proceed-
ings taken as if the action or proceeding had been commenced
anew. <A copy of the judgment or order granting a new trial or
hearing must be served by the party entering it on the oppo-
site party or his attorney at least two days before the time set
for the new trial or hearing. When a new trial or hearing is
granted the appellate court may in its discretion award costs
of the appeal to either party absolutely or to abide the event.

[Code § 3327, amended as indicated. ]

§ 2. Sections thirty-two hundred and twenty-six and thirty-
two hundred and twenty-seven of the code of civil procedure and
all acts amendatory thereof are hereby repealed.

§ 8. This aet shall take effect April fifteenth. nineteen hun-
dred and twenty.
UTICA CITY COURT ACT
AMENDMENTS

[1359]
UTICA CITY COURT ACT AMENDMENTS

AN ACT to amend chapter one hundred and three of the laws of
eighteen hundred and eighty-two, entitled “An act to establish
a local court of civil and criminal jurisdiction in the city of
Utica,” in relation to subpoenas and removal of causes, and to
repeal sections thirty-two hundred and thirty-two hundred and
one of the code of civil procedure relating thereto,

The People of the State of New York, represented in Senate
and Assembly, do enact as follows:

Section 1. Chapter one hundred and three of the laws of eigh-
teen hundred and eighty-two, entitled “An act to establish a local
court of civil and criminal jurisdiction in the city of Utica,” is
hereby amended by inserting therein two new sections to be sec-
tions five-a and thirty-five-a, to read respectively, as follows:

§ 5-a. A subpoena issued out of said court may be served
upon « witness at any time within the state. A warrant to appre-
hend a witness for w failure to obey such a subpoena may be
directed to the sheriff of the county of Onetda and executed by
him within any county of the state. The sheriff is subject lo the
same liability for a failure to. serve or return tt as if it were
issued out of the sinpreme court.

§ 35-0. The county court of the county of Oneida may by an
order remove to itself an action of which said court has jurisdic-
tion upon proof by affidavit that the judges thereof are for any
cause incapuble of acting either gencrally or in the particular
action, The provisions of the civil practice act relating to
removal of an action or proceeding from county court to
supreme court apply to an order of removal under this section
and to the proceedings subsequent therclo, The proceedings sub-
sequent to the order are the same as ty an aclion brought in the
county court except that costs must be awarded as if the action
had remained in the court from which it was removed,

§ 9. Sections thirty-two hundred and thirty-two hundred and
one of the code of civil procedure are hereby repealed.

§ 3. This act shall take effect April fifteenth, nineteen hun-
dred and twenty. .

[1361]
RULES OF COURT

[1363]
RULES OF COURT

Article

be

Courts, judges and officers (Rules 1-7).
Extension of time (Rules 8-12).
Filing papers (Rules 13, 14).
Motions (Rules 15-28).
Notice of claim (Rule 29).
Orders (Rules 30-35).
Papers (Rules 36-40).
S. Payient into and out of court (Rules 41-48).
9. Publication (Rule 49),
10. Security (Rules 50-52).
11. Service of papers (Rules 53, 54).
12. Stay (Rule 55).
3. Stipulation (Rule 56).
14. Want of prosecution (Rule 57).
15. Venue (Rules 58, 59).
16. Parties (Rules 60-66).
17. Summons (Rules 67-75).
1s. .\ppearances (Rule 76).
1). Pleadings (Rules 77-92).
20. Depositions taken and to he used within the state
(Rules 98-96).
21. Depositions taken without the state for use within
the state (Rule 97).
2. Depositious taken within the state for use without
the state (Rule 98).
3. Perpetuation of testimony in real property actions
(Rule 99).
Discovery and inspection (Rules 100-104),
Notice of trial and of issue (Rules 105-107),
5. Evidence (Rules 108, 109)
Trial (Rules 110-124).
Judgement (Rules 125-144).
Motions for new trials (Rules 145-150).
Appeals (Rules 151-160).

[1365]

le

rt oth ge

lo Lo
Ly lo

ir

aay

tMWWwWk Ww Ww LO
OF st SS

>
1366

Article

Rule 1.

Bs

aN

6,
7.

Rule
sion in

Revorr or Jorn Leaisnarive CoMMITTEE

J. Executions (Rules 161, 162),

2. Arrest, injuuetion and attachment (Rules 163-167).

3. Receivers (Rules 168-171).

4, Action to recover reul property (Rules 172-174).

35, Action for partition (Rules 175-180).

36. Action to foreclose a mortgage (Rules 181-190).

37. Action to recover a chattel (Rules 191-194).

38. Matrimonial actions (Rules 195-203).

39. Proceedinys for appointment of committee of in-
competent; powers and duties of committee (Rules
204-207),

40. Proceedings for appointment of general guardian
of infant (Rules 207-209).

41. Proceedings for disposition of the real property of an
infant or incompetent (Rules 210-215).

492. Costs, dishursements and fees (Rule 216).

ARTICLE 1
COURTS, JUDGES AND OFFICERS

Courts may make further rules.

Practice in cases not covered by rules.

Notice of motion to amend justice's return on appeal.

References other than for trial of issues or foreclosure
computations.

Applications for admission as attorneys.

Compelling officer to return, deliver or file paper.

Books to be kept by clerks of courts.

1. Courts may make further rules. The appellate divi-
each department, and the various courts of record, may

make such further rules in regard to the transaction of business

before them respectively, not inconsistent with the [foregoing]
gome

following rules, as they in their diseretion may deem necessary.

[General Rule of Practice 83.]

Rule

2. Practice in cases not covered by rules. Tn cases

where no provision is made hy statute or hy these rules the pro-

ceeding:

shall be according to the customary practice as it
Russ or Courr 1367

[formerly] existed formerly in the court of chancery or supreme

court im cases not provided for hy statute or by the written rules of
those courts.

[General Rule of Practice 84.]

Rule 3. Notice of motion to amend justice’s return on appeal.
On appeal from a justice's judgment, where a county court has
not Jurisdiction, by reason of relationship, ete., a notice of motion
for an order to compel the justice to amend his return may be
given in twenty days after the date of the certificate of the county
Judge, and not after that time.

[General Rule of Practice 46.]

Rule 4. References other than for trial of issues or fore-
closure computation. In references other than for the trial of
the issues in an action, or for computing the amount due in fore-
closure cases, the testimony of the witnesses shall be signed by
them; the report of the referee shall be filed with the testimony,
and a note of the day of the filing shall be entered by the clerk
in the proper book under the title of the cause or proceeding. At
any time after the report is filed, either party may bring on the
action or proceeding at special term on notice to the parties
interested therein.

[General Rule of Practice 30, last sentence.]

Rule 5. Applications for admission as attorneys. \Vithin ten
days after the first day of January in each year, the appellate
division in each department shall appoint a committee on character
and fitness of not less than three for the department, or may
appoint a committee for each judicial district within the depart-
ment, to whom shall be referred all applications for admission to
practice as attorney and counselor at law, such committee to
continue in office until their successors are appointed. To the
respective committees shall be referred all applications for admis-
sion to practice, either upon the certificate of the state board of law
examiners, or upon motion under rule two of the rules of the court
of appeals for the admission of attorneys und counselors at law.
The committee shall require the attendance before it, or a member
thereof, of each applicant, with the affidavit of at least two practic-
ing attorneys acquainted with such applicant, residing in the
1368 Rervorr or Jory Lears.arive Com MITTER

judicial district in which the applicant resides, that he ig of such
character and general fitness as justifies admission to’ practice, and
the affidavit must set forth in detail the facts upon which the
atiant’s knowledge of the applicant is based, and it shall be the
duty of the committee to examine each appleant, and the com-
mittee must be satisfied from such examination, and other evi-
dence that the applicant shall produce, that the applicant has
such qualifications as to character and general fitness as in the
opinion of the committee justify his admission to practice, and
no person shall be admitted to practice except upon the production
of a certificate from the committee to that effect, unless the
court otherwise orders.

No applicant shall be entitled to receive such a certificate
who is not able to speak and to write the English language intel-
ligently, nor until be affirmatively establishes to the satisfaction
of the committee that he possesses such a character as justifies
his admission to the bar and qualifies him to perform the duties
of an attorney and counselor at law.

An applicant for admission to practice as an attorney and
counselor at law on motion, under the provisions of rule two of
the rules of the court of appeals for the admission of attornevs
and counselors at law, must present to the court proof that
he has been admitted to practice as an attorney and counselor
at law in the highest court of law in another state, or in a
country whose jurisprudence is based upon the principles of the
common law of England; a certificate, executed by the proper
authorities, that he has been duly admitted to practice in such
state or country; that he has actually remained in said state or
country, and practiced in such court as attorney and counselor
at law for at least five vears; a certificate from a judge of such
court that he has been duly admitted to practice and has actually
continuously practiced as an attorney and counselor at law for a
period of at least five vears after he has been admitted, specifying
the name of the place or places in which he has so practiced and
that he has a good character as such attorney. Such certificate
must be duly certified by the clerk of the court of which the judge
is a member, and the seal of the court must be attached thereto.
He must also prove that he is a citizen of the United States and
has been an actual resident of the state of New York for at least
six months prior to the making of the application, giving the place
of his residence by street and number, if such there be, and the
Rutzs or Courr 1369

length of the time he has been such resident. He shall [also]
submit also the attidavits of two persons who are residents of the
judicial district in which he resides, one of whom must be an
attorney and counselor at law, that he is of such character and
general fitness as justifies admission to practice, and the affidavit
must set forth in detail the facts upon which the affiant’s knowl-
edge of the applicant is based. In all cases the applicant must
appear in person before the court on the motion for his admission,
and also before the committee on character and fitness for the
district in which the application is made.

In all cases the applicant for admission must file with the clerk
of the appellate division of the proper department the papers
required for his admission as hereinbefore specified prior to or
at the time of the motion for admission to practice.

(General Rule of Practice 1.]

Rule 6. Compelling officer to return, deliver or file paper.
At any time after the day when it is the duty of the sheriff or
other officer to return, deliver, or file any process or other paper, by
the provisions of the [Code of] Civil [Procedure] Practice Act.
or by these rules [of the courts], any party entitled to have such
act done, except where otherwise provided by law, may serve on the
officer a notice to return, deliver, or file such process, or other
paper as the case may be, within ten days, or show cause at a
special term to be designated in said notice why an attachment
should not issue against him.

[General Rule of Practice 6.]

Rule 7. Books to be kept by clerks of courts. The clerk of
the appellate division in cach department shall keep:

1. A book, properly indexed, in which shall be entered the title
of ull actions and proceedings which are pending in that court,
and all actions or special proceedings commenced in the appellate
division with entries under each, showing the proceedings taken
therein and the final disposition thereof.

2. A minute hook, showing the proceedings of the court from
day to day.

5 A remittitur book, containing the final order made upon the
decision of each ease, a certified copy of which shall be trans-
mitted to the proper clerk as required hy the [Code of Civil
Procedure] Civil Practice Act.
1370 Revorr ov Jorny Lecgistarive ComMmirrern

4. A book, properly indexed, in which shall be recorded at large
all bonds or undertakings filed in his office, with a statement of
the action or special proceeding in which it is given, and a state-
ment of any disposition or order made of or concerning it.

5. A book, properly indexed, which shall contain the name of
each attorney admitted to practice, with the date of his admis-
sion, and a bvok, properly indexed, which shall contain the name
of each person who has been refused admission or who has been
disbarred or otherwise disciplined or censured by the court. The
clerk of each department shall transmit to the clerk of the court
of appeals and to the clerks of the other departments the names
of all attorneys who have been admitted to practice, the names
of all applicants who have been refused admission, and the names
of all attorneys who have been disbarred, disciplined or censured
by the court. The clerk of each department is directed to enter in
the proper book the name of each attorney who has been admitted
to practice, with date of his admission, and the name of each
person who has been refused admission or has been disciplined,
with the date of such refusal of admission or discipline, received
from the other departments of the state, together with the date
when and department wherein the order was made.

The clerks of the other courts shall keep in their respective
offices, in addition to the ‘judgment book” required to be kept
by the [Code of Civil Procedure] County law:

1. A book, properly indexed, in which shall be entered the title
of all civil actions and special proceedings, with proper entries
under each denoting the papers filed and the orders made and
the steps taken therein, with the dates of the several proceedings.

2. A hook in which shall be entered at large each bond and
undertaking filed in his office, with a statement showing when
filed and a statement of anv disposition or order made of or
concerning it.

3. Such other hooks, properly indexed. as may be necessary to
enter the minutes of the court, docket judgments. enter orders
and all other necessary matters and proeecedings, and such other
hooks as the appellate division in each department shall direct.

[General Rule of Practice 7.]

2.
Runes or Courr 1371

ARTICLE 2
EXTENSION OF TIME

Rule 8. Affidavit served with order for extension.
9. Extension of time of corporation to answer in action
on note.
10. Extension of time for serving or amending case.
11. Additional extension of time to plead.
12. Affidavit on extension of time to answer or reply.

Rule 8. Affidavit served with order of extension. [In a
case specified in the last two sections, the] All affidavits and
other papers used upon an application for an order extending
time [upon which the order was granted], or [a copy] copies
thereof, must be served with a copy of the order[[; otherwise, the
order may be disregarded].

[Code § 782. See Board’s rule 11.]

Rule 9. Extension of time of corporation to answer in
action on note. In an action against a foreign or domestic
corporation to recover damages for the non-payment of a promis-
sory note, or other evidence of debt, for the absolute payment of
money, upon demand, or at a particular time, an order extending
the time to answer [or demurJ shall not be granted except by the
court upon notice to the plaintiff’s attorney.

[First sentence of Code § 1778. The reference to extension of time to
demur is omitted as demurrer as a separate pleading will be abolished.

The Board omitted § 1778 as covered by rule 305, summary judgment on
summons to appear. ]

Rule 10. Extension of time for serving or amending case.
No order extending the time to serve a case or the time within
which amendments thereto may be served, shall be made unless
the party applying for such order serve a notice of two days upon
the adverse parties of his intention to apply therefor, stating the
time and place for making such appheation.

[Last sentence of General Rule of Practice 32. See Board’s rule 8. last
sentence, identical.]
1372 Reporr ov Jormny Leaisnative Comarrres

Rule 11. Additional extension of time to plead. When the
time to serve a pleading has been extended by stipulation or order
for twenty days, no further time shall be granted by order except
upon two days’ notice of the application therefor.

[Last sentence of General Rule of Practice 24. See Board’s rule %,
identical. ]

Rule 12. Affidavit on extension of time to answer or reply.
No order extending a defendant’s time to answer, or the plaintiff's
time to reply to a counterclaim, shall be granted unless the party
applying for the order presents an affidavit of the attorney or
counsel retained to prosecute or defend the action, as the case may
be, that from the statement of the case made to him by the plaintiff
or defendant he verily believes that his client has a good and sub-
stantial defense upon the merits to the cause of action set forth
in the complaint or answer or to some part thereof. The affidavit
shall [also] state also the cause of action alleged in the complaint
or counterclaim, as the care may be, and the rehef demanded and
what extensions of time to answer or replv by stipulation or order
have been granted.

[Rewritten from first two. sentences of General Rule of Practice 24. See
Board’s rule 10, identical.]

ARTICLE 3
FILING PAPERS

Rule 13. Filing papers generally.
14. Filing papers in New York and Bronx counties.

Rule 13. Filing papers generally. The papers in cases pend-
ing in the appellate division shall be filed with the clerk of such
division of the department in which the ease is pending. In all
other cases where no provision is made by the [Code] Civil
Practice Act, papers in the supreme court shall be filed in the
office of the clerk of the county specified in the complaint as the
place of trial, [In Surrogate’s Courts, in the office of Surrogate :J
Beeepl as otherwise provided by lar. in other courts of record,
papers shall be filed in the office of the respective clerks thereof.
In ease the place of trial he changed to another county, all sub-
Rurrs or Courr 1373

sequent papers shall he filed in the county to which such change
Is made,

[General Rule of Practice 2, except last sentence. Preference to Sur-
rogate’s Courts is covered by surrogate court act.]

Rule 14, Filing papers in New York and Bronx counties.
Within [three] fen days after a summons, writ or other original
process is served in an action in the supreme court, New York
county, or in an action in either the supreme or county courts,
Bronx county, [or in an action in the county court, Bronx
county] the attorney or party causing the same to be served shall
tile said process with proof of service in the office of the clerk who
has custody of the records of the court in which the action or
proceeding ix brought. [The] Said clerk [shall], upon receipt
thereof, or the first puper therein, shall stamp the same upon its
front page with a certain number to be one of the series for that
year, and enter in the current docket book on the half page bearing
the same number the names of the parties as they appear on said
process or paper and the name and address of the attorney who
issued the same. [And] The attorney or party causing such
summons, writ or original process o7 first paper, to be served
[shall], upon demand, shall give to the party so served, or to the
attorney of such party, the number so stamped by the clerk,
stamped or indorsed upon a paper with the title of the action and
the name and address of the attorney or party who made or
caused the service to be made. All papers in the action shall bear
the same number and year as the summons, writ or other original
process, or paper first filed therein with the clerk, which number
shall constitute a part of the title of such action. Not later than
the day after their service, all original papers in the action with
proof or admission of their service shall[[, not later than the day
after their service,] be filed with or mailed to the clerk who
stamped the number on the summons, writ or other original
process or paper first filed therein. All papers hereafter filed with
the clerks of [New York county, or with the clerk of Bronx
county] said counties must he flat and filed flat. The word
“action” as used in this section shall mean “ action or special
proceeding.”

[Code § 1245a pt.. amended as indicated. See Board’s rule 13, practically
identical.]
ists Rievorr ov Jour Leaisnwrive Comarergs

ARTICLE 4
MOTIONS

Rule 15. Definition of enumerated motions and non-enumerated
motions.
16. Notice of motion.
17. Time of motion.
18. Granting, return and effect of order to show cause.
19. Ex parte motion.
20. Motion upon mistake, defect or irregularity.
21. Motion, where returnable.
22. Motion, when returnable.
23. Counter affidavits on motion.
24, Papers on motion.
25. Points on motion.
26. Affidavit of merits on motion,
27. Default on motion.
98. Transfer of motion.

Rule 15. Definition of enumerated motions and non-enumer-
ated. motions. Enumerated motions are motions arising on
special verdict, issues of law, cases, exceptions, appeals from judg-
ments sustaining or overruling demurrers, appeals from judgment
or order granting or refusing a new trial in an inferior court,
appeals by virtue of sections [1346 and 1349] six hundred and
twenty-two and six hundred and twenty-five of the [Code] Civil
Practice Act, agreed cases submitted under section [1279] fire
hundred and sixty-one of the [Code] Civil Practice Act, and
appeals from final orders and decrees of Surrogate’s Courts, and
matters provided for by sections [2085-2099 and 2138] thirteen
hundred and fifty to thirteen hundred and sixty-four, both inclu-
sive, and thirteen hundred and fifteen of the [Code] Ciril
Practice Act.

Non-enumerated motions include all other questions submitted
to the court, and shall be heard at special term except when
otherwise directed by law.

[General Rule of Practice 38, except. last sentence.]
Rees or Covir 1375

Rule 16. Notice of motion. \|| questions for argument and
all motions made at special or trial terms shall be brought before
the court on notice, wnless otherwise prescribed,

[First clause of General Rule of Practice 37. Sea Board’s rule 18.]

Rule 17. Time of notice of motion. [Where special provision
is not otherwise made by law, or by the general rules of practice,]
Unless otherwise provided, if notice of a motion, or of any other
proceeding in an action, before a court or a judge, is necessary,
[it must,] if peudnelly served, it must be served at least eight
days before the time appointed fon the hearing except that where
the attorneys for the respective parties reside or have their offices
in the same city or village, such notice may be a notice of five
days. [[; unless the court or a judge thereof, or a county judge
of the county where the action is triable or in which the attorney
for the applicant resides,] Upon an affidavit showing grounds
therefor[[, makes] an order to show cause[[, why the application
should not], may be granted[[; and, in the order, directs that]
containing a direction for service thereof in less than [eight days
before it is returnable, be sufficient] the time above specified.

[In a case specified in the last two sections,] The affidavit
upon which the order was granted or a copy thereof must be served
with a copy of the order[[: otherwise, the order may he dis-
regarded].

[First sentence is Code § 780, amended as indicated but without intending
to change the present rule as to who may make such orders. The new matter
inserted referring to notice to attorneys in the same city or village is taken
from General Rule of Practice 37. The last sentence is Code § 782. The

reference to Code § 781 is covered under “ Extension of Time.” See Board’s
rule 18.]

Rule 18. Granting, return and effect of order to show cause.
Such order to show cause [shall] in no case shall be granted
unless a special and sufficient reason for requiring a shorter notice
than eight days shall be stated in the papers presented, nor unless
in a case where the attorneys for the respective parties reside or
have their offices in the same city or village, a special and suffi-
cient reason for requiring a shorter notice than five days shall
be stated in the papers presented, and the party [shall], in his
affidavit, shall state the present condition of the action, and
whether at issue, and, if not yet tried, the time appointed for
1376 Reporr or Joinr Leaisnarive ComMITrEer

holding the next special or tial term where the action is triable.
An order to show cause [shall also], except in the first judicial
district, sha? be returnable only before the judge who grants it,
or at a special term appointed to be held in the district in which
the action is triable.

No order, except in the first judicial district, served after the
action shall have been noticed for trial, if served within ten days
of the trial term, shall have the effect to stay the proceedings in
the action, unless made at the term where such action is to be
tried, or by the judge who is appointed or is to hold such trial
term, or unless such stay is contained in an order to show cause
returnable on the first day of such term, in which case it shall
not operate to prevent the subpoenaing of witnesses or placing
the cause on the calendar.

[Third, fourth and fifth sentences of General Rule of Practice 37.]

Rule 19. Ex parte motion. Whenever application is made ex
parte in an auction or a proceeding wpon affidavit [to a judge or
court] for an order or judgment, the affidavit shall state whether
any previous application has been made for [such] the order or
judgment, and, if made, to what court or judge and what order
or decision was made thereon, and what new facts, if any. there
are [claimed to be shown.]: for failure to comply with this rule
[any] the order or judament made on [such] the application
may be [revoked or set aside] vacated. [This rule shall apply to
proceedings supplementary to execution, and to every application
for an order or judgment made in any action or special
proceeding. ]

[General Rule of Practice 25. See Board’s rule 19, identical. The reference
to “ proceeding ” is made rather than “ special proceeding ” because the courts
have held that a proceeding supplementary to execution is not a “special
proceeding,” but an incident of an action. See Simon y. Underwood. 61

Misc. 369, 375. The bracketed matter at the end of the rule applies the rule
io a supplementary proceeding. ]

Rule 20. Motion upon mistake, defect or irregularity. When
[the] « motion is for @ mistake, omission, defect or irregularity,
the notice or order to show cause shall specify the mistake, omis-
ston, defect or irregularity complained of.

[General Rule of Practice 87, part. See Board's rule 20, identical except
that the Board omitted the reference to “ order to show cause.’ }
Ruies or Covurr 1377

Rule 21. Motion, where returnable. 4 motion shall be return-
able as follows: .

J. A motion upon notice in an action in the supreme court
must be made within the judicial district in which the action is
triable or in a county adjoining [that] the county in which it is
triable.

2. [except that] Where [it] the action is triable in the first
judicial district, the motion must be made in that district; and a
motion upon notice cannot be made in that district in an action
triable elsewhere.

3. [But this section does] The last two subdivisions do not
apply to a case where it is specially prescribed by law that a motion
may be made in the county where the applicant or other person
to be affected thereby or the attorney resides.

4. Contested motions, unless otherwise ordered, shall not be
noticed or brought to a hearing at any special term held at
the same time and place with a trial term, except in [actions]
an action upon the calendar for trial at such term and in which
the hearing of the motion is necesary to the disposal of the [cause
unless otherwise ordered by the justice holding the court] action,
and except also that in [counties] a county in which no special
term distinct from a trial term is appointed to be held [motions]
a motion in [actions] an action triable in any such county may
be noticed and brought on at the time of holding the trial and
special term in the county in which such [actions are] action is
triable.

5. In the first judicial district, all motions must be noticed to
be heard at and all orders to show cause must be returnable at
the special term for hearing of litigated motions, except in cases
where the special rules of the first judicial district shall require
such motion to be made at some other term of the court.

[First three subds. are Code § 769. See Board’s rule 21. Subd. 1 in the
Board’s rule provides that a motion upon notice shall, unless otherwise pro-
vided, be made within the judicial district in which the action is triable, or
in a “county adjoining the district” in which it is triable. The Committee
has changed this provision to read “ county adjoining the county ” in which
it is triable. In the McCall edition of the Field Code (1851) the notes to
§ 401 indicate that the alternative to making such a motion in the district
where the action is triable is a county adjoining the county where triable
rather than a county adjoining the district. The following are extracts from
such foot notes:

44
1378 Repvorr or Jomnt LeaisiativE CoMMITTEE

“This ig wu revision and substitute for § 51 of the Judiciary Act, and
extends the territorial limits within which a motion may be made, to the
entire district in which the action is triable, and a county adjoining that
county. Gould and others agt. Chapin and others, 4 How. 185. But see
Peebles agt. Rogers, 5 How. 208.”

“A motion for judgment for not serving « copy of the complaint, must be
made in that district, or a county adjoining the county in which the venue is
laid. Johnston agt. Bryan, 5 How. 355.”

Subd. 4 is from General Rule of Practice 38 part, with no change in sub-

' stance. See Board’s rule 21, subd. 4, practically identical.

Subd. 5 is eighth sentence of General Rule of Practice 37.]

Rule 22. Motion, when returnable. (Unless otherwise pro-
vided, a motion when made to the court shall be made for the
opening day of the term.

[New. From General Rule of Practice 21. See Board’s oa 23, as
follows: EZ PZ A

“93. Unless otherwise ordered, a motion, when made to the court, shall
be made for the opening day of the term and a subsequent motion, except
in connection with an appeal, shall be made before the same judge before
whom a prior motion in the action or proceeding was made. When rules do
not provide that a motion shall be made at w term of the court, it may be
made to a judge of the court.”

The Committee, while recognizing the advantage to orderly procedure of
having all motions made before the same judge who heard a prior motion
in the same case, does not believe that such « rule is practicable in this state.
It would not be feasible in New York City for any judge to hear all subse-
quent motions in a case, nor would it be practicable in the rural counties of
the state where the judges in a judicial district are often located in different
sections of a large territory and where the expense and delays caused by

-seeking the same judge would in many cases defeat the just litigant.

The last sentence of the Board’s rule is unnecessary in view of the form in
which the Committee has retained Code § 770.

‘Under the rule suggested above by the Committee the place of motions
may be dealt with by the rules of the various districts and departments as
will best fit their respective requirements; and further, the matter is one

‘which it would be much better to leave to the discretion of the individual
_judge. General Rule of Practice 21 has been omitted.

The provisions of the Code relating to subsequent motions after the denial
or conditional granting of a prior motion in the same matter, now covered

.. by Code §§ 776 and 778, and in identical language by ean rule 28, have

been retained.]

Rule 23. Counter affidavits on motion. If 4 notice of motion

‘is served ten days before the return day thereof, it may contain,

immediately after the prayer for relief and befane the signature,
[contain] the following statement: “ Answering afidagits must
Russ or Court 1379

be served five days before the return day,” in which case, answer-
ing affidavits, in order to be used upon the motion, must be so
served. The moving party, upon receiving such answering affi-
davits, may serve affidavits in reply at least two days before the
hearing. Such replying affidavits shall be limited strictly to
matters in reply. Affidavits in answer and reply under this rule
cannot be read upon the motion if not so served, unless the court
or judge [in its discretion, for good cause shown, may otherwise
order] otherwise orders.

[General Rule of Practice 37, last four sentences. Board rule 24, identical.]

Rule 24, Papers on motion. The party making a motion shall
furnish the papers necessary to the consideration of the questions
envolved in the motion except where they are in the possession of
the opposite party, when they shall be produced by the latter wpon
notice served with the motion papers. The pleadings in an action
shall at all times when a motion is made therein be deemed to be
before the court although not specifically referred to in the notice
of motion.

[The first sentence is new and identical with first sentence of Board’s rule
25. The last sentence is Code § 768, last sentence. The section will cover
General ‘Rule of Practice 40 pt., as follows:

“The papers to be furnished on enumerated motions at special term shall
be a copy of the pleadings, when the question arises on the pleadings, or any
part thereof, a copy of the special verdict, return or other papers on which
the question arises. The party whose duty it is to furnish the papers shall
serve a copy on the opposite party, except upon the trial of issues of law,
at least five days before the time for which the matter may be noticed for
argument. If the party whose duty it is to furnish the papers shall neglect
to do so, the opposite party shall be entitled to move, on affidavit and on four
days’ notice of motion, that the cause be struck from the calendar (whichever
party may have noticed it for argument), and that judgment be rendered in

-his favor. The papers shall be furnished by the plaintiff when the question
arises on special verdict, and in all other cases by the party making. the
motion.” ]

Rule 25. Points on motion. Where points are required on a
motion, each party shall prefix [to his points] thereto a concise
statement of the case, with reference to the folios, and if such
statement is not furnished, no discussion of the facts by the party
omitting [such] the statement will be permitted.

[General Rule of Practice 40, last sentence. See Board’s rule 26, prac-
tically identical.]
1380 Report or Joint Leaistarive COMMITTEE

Rule 26. Affidavits of merits on motion. Al] motions for
relief to which a party is not entitled as matter of right shall be
made upon papers showing merits, and the good faith of the
prosecution or defense, which may be shown by any proof that
shall satisfy the court.

[General Rule of Practice 23.]

Rule 27. Default on motion. Jf the party making [the] a
motion shall not appear, the court or judge shall deny the motion
with costs on the filing of a copy of the notice of motion or order
to show cause. If [the opposite] a party shall not appear to
oppose a motion or shall fail to furnish necessary papers upon
notice to do so, the party making the motion shall be entitled to
the order or judgment moved for, with costs, on proof of due
service of the notice or order to show cause’ and papers required
to be served by him, unless the court or judge shall [otherwise]
direct otherwise; this rule, so far as it permits a judgment by
default or by the consent of the adverse party, shall not extend to
an action for a divorce or limited separation or to annul a
marriage.

[The first sentence is first sentence of General Rule of Practice 37. See
also the last sentence of the first paragraph of General Rule of Practice 40.
The provision for “costs” in the first sentence is taken from General Rule
of Practice 44, now relating to appellate division. The second sentence down
to the semi-colon is the latter part of the first sentence of said General Rule
37. See also General Rule of Practice 40. The remainder of the second
sentence is the 7th sentence of General Rule of Practice 37. The matter in
the second sentence relating to failure to furnish necessary papers on a

motion, after notice to do so, is new and fixes a penalty for failure to
comply with the provisions of the rule on “ Papers on a Motion.’’]

Rule 28. Transfer of motion. Where notice of a motion is
given or an order to show cause is returnable before a judge out
of court, who, at the time fixed for the motion, is or will be absent,
or unable for any other cause to hear it, the motion may be trans-
ferred by his order, made before or at that time, or by the writ-
ten stipulation of the attorneys for the parties, to another judge
before whom it might have been [originally] made originally.

[Code § 771. See Board’s rule 29, identical.]
Rees or Court 1381

ARTICLE 5
NOTICE OF CLAIM

Rule 29. Notice to present claim.

Rule 29. Notice to present claim. Where an action is brought
for the collective benefit of the creditors of a person or of an
estate or for the benefit of a person or persons other than the
plaintiff, who will come in and contribute to the expense of the
action, notice [of a direction of the court, contained in a judg-
ment or order] requiring the creditors or other person or persons
to exhibit their demands or otherwise to come in must be published
[once in each week for at least three successive weeks, and as
much longer as the court directs, in the newspaper, published at
Albany, in which legal notices are required to be published, and
in a newspaper, published in the county where the act is required
to be done.] as the court may order.

[Code § 786. See Board’s rule 30, identical. The bracketed matter is
omitted and the matter is left for the court to make the appropriate order.]

ARTICLE 6
ORDERS

Rule 30. Form and resettlement of order.
31. Filing papers on entry of order.
32. Opinion upon granting order.
33. Entry of papers in county other than where motion
made.
34. Docketing order in certain cases.
35. Orders granted on petition or relating thereto.

Rule 30. Form and resettlement of order. [In determining
a motion, the court shall cause its] The determination of a motzon,
together with a recital of the papers read on the motion on either
side, [to] shall be indorsed on or appended to the back of the
motion papers and shall [sign the same] be signed by the court
or judge, and such indorsement and signature shall constitute
1382 Report or Jotwnt Lecistative ComMirrer

the order [of the court]; but nothing herein [contained] shall
prevent the [court, upon the application of either party, from
resettling] resettlement of such order wpon the application of
either party in the form of the written order heretofore. in use.
Upon such resettlement of the order, where the right to appeal
depends upon whether or not such order was made in the exer-
cise of discretion, or whether or not the decision upon which it is
based involves a question of law, such order shall [so] state
the ground upon which it was made.

{All except the first two sentences of Code § 767. See Board’s rule 36, sub-
stantially identical.]

Rule 31. Filing papers on entry of order. When any order is
entered, all the papers, used or read on the motion on either side[,
shall be specified in the order, and} shall be filed with the clerk,
unless already on file or otherwise ordered by the court, or the
order may be set aside as irregular, with costs. The clerk shall
not enter such order unless the motion papers are filed, and unless
the order is signed by the justice presiding at the court at which
the motion was heard.

[General Rule of Practice 3, first two sentences. Bracketed matter is
covered elsewhere.]

Rule 32. Opinion upon granting order. [Where] An opinion,
[has been delivered by the court,] if written, shall be filed with
the order and shall be considered a part of the record upon which
the order was made; and if the order does not state the grounds
upon which it was made, the opinion may be considered to
ascertain the grounds.

[General Rule of Practice 3 pt. See Board’s rule 38, identical.]

Rule 33. Entry of papers in county other than where motion
made. When the affidavits and papers upon a {[non-enumerated]
motion are required by law or by [the] rules [of the court]
to be filed and the order to be entered in a county other than that
in which the motion is made, the clerk shall deliver to the party
prevailing in the motion, unless [otherwise] ordered otherwise,
a certified copy of the rough minutes, showing what papers were
used or read, together with the affidavits and papers used or read
upon [such] the motion, with a note of the decision thereon, or

the order directed to be entered, properly certified. [[Tt shall be
SS
Ruxes or Court 1383

the duty of] The party to whom such papers are delivered [to]
shall cause the same to be filed and the proper order entered in
the proper county within ten days thereafter, or the order may”
be [set aside] vacated as irregular, with costs.

eMeothy
[General Rule of Practice 3 part (last paragraph). See also Board’s rule
40, identical.]

Rule 34, Docketing order in certain cases. [Any] An order
[or judgment] directing the payment of money, or affecting the
title to property, [if founded on petition, where no complaint is
filed, may, at the request of any party interested, may be enrolled
and docketed the same as [other judgments] a judgment, if re-
quested of the county clerk by a party interested.

[General Rule of Practice 27, last sentence. See also Board’s rule 41,.
identical.]

Rule 35. Orders granted on petitions or relating thereto..
Orders granted on petitions, or relating thereto, shall refer to
such petitions hy the names and descriptions of the petitioners
and the date of the petitions, if the same be dated, without re-
citing or setting forth the tenor or substance thereof unnecessarily.

[General Rule of Practice 27, first sentence. ]

ARTICLE 7
PAPERS

Rule 36. Legibility and size of papers.
37. Subscription and indorsement by attorney.
38. Subscription and indorsement of writs and_ other
process.
39. Waiver of objection to requirements.
40. Lost or withheld papers.

Rule 36. Legibility and size of papers. [[A notice or other
paper in an action may be served on a party or an attorney, either
by delivering it to him personally, or in the manner prescribed
in the next section.J All papers [so] served or required to be
filed [in an action,] shall be [plainly and legibly] written or
printed, plainly and legibly, in black ink, in H'nglish, upon dur-
able paper of good material[, and, if imprinted by type-writer,
1384 Report or Jornt Leaistarive ComMIrtTEer

such paper shall be of linen quality, equal in weight to sixteen
pounds to the double cap ream, of seventeen by twenty-eight inches
in size, and service or filing of papers printed or written upon
such paper with such ink shall be deemed a compliance with the
terms of this section. The transcribed minutes of a stenographer,
taken in any civil or criminal action, or in any hearing or special
proceeding, civil or criminal, shall be written or type-written
on paper of the size hereinafter specified; and all]. All cases,
briefs, points or other papers required or used on an appeal from
any judgment, determination or order of any court or board shall
be printed, when required to be printed by the rules of any court,
on paper [of a uniform size, as follows: The paper must be]
ten and one-half inches by eight inches, and bound on the edge
of the [greatest] greater length. [Every pleading, deposition,
affidavit, case, bill of exceptions, report, paper, order or judgment]
Papers exceeding two folios in length shall be [distinctly] num-
bered and marked distinctly in each folio in the margin thereof,
and copies [either for the parties or the court] shall be numbered
or marked [in the margin so as] to conform to the original [draft
or entry and to each other] and shall be indorsed with the title
of the cause. [LAI] the pleadings and other proceedings and copies
thereof shall be fairly and legibly written or printed, and] If
papers are not so written or printed, [and] folioed and indorsed
[as aforesaid], the clerk shall not file the same, nor will the
court or a judge hear [any] « motion [[or application] founded
thereon.

[Code § 796, except first sentence, amended as indicated. First sentence
covered under “Service of Papers.” Reference to “English” language
inserted. See Code § 22, requiring that “each writ, process, record, pleading
or other proceeding in a court, or before an officer, must be in the English
language.” Last two sentences are General Rule of Practice 19. first two
sentences. Third sentence and last part of second sentence of General Rule
of Practice 19 are covered by the above rule. See Board's proposed County
Law, § 170. hR

Code § 22, omitted as sufficiently covered by preceding section. se

Code § 23, omitted as unnecessary. ]

Rule 37. Subscription and indorsement by attorney. All
papers issued by an attorney shall be subscribed by him. All
papers served or filed in any action or proceeding shall have
the name of the attorney indorsed thereon if the party appears
by attorney, and if he does not appear by attorney then the name
Rurzs or Covrr 13885

of the party serving or filing the paper, together with the address
of the attorney or party as the case requires with sufficient detail
for counter-service.

(General Rules of Practice 2, last sentence, rewritten. The language as it
appearg in General Rule 2 is as follows:

“All papers served or filed, must be indorsed or subscribed with the name
of the attorney or attorneys, or the name of the party if he appears in
person, and his or their office address, or place of business.’’]

Rule 38. Subscription and indorsement of writs and othet
Process. A writ or other process issued out of a court of record
must[[, before the delivery thereof to an officer to be executed,]
be subscribed or indorsed with the name of the officer by whom,
or by whose direction it was granted, or the attorney for the
party, or the person at whose instance it was issued, before the
delivery thereof to an officer of the court to be executed. [A
writ or other process thus subscribed or indorsed, is not void or
voidable, by reason of having no seal or a wrong seal thereon, or
of any mistake or omission in the test thereof, or in the name of
the clerk, unless it was issued by special order of the court.]

[Code § 24. Last sentence omitted as covered by the general provisions
contained in the Civil Practice Act relating to supplying defects and
correcting mistakes. ]

Rule 39, Waiver of objection to requirements. The party
upon whom [the] a paper is served shall be deemed to have waived
the [objection for] non-compliance with [this rule] the rules as
to size and legibility of papers, folioing and wndorsing the same
unless within twenty-four hours after the receipt thereof he re-
turns [such] the paper to the party serving the same with a state-
ment of the particular objection to its receipt, but this waiver
shall not apply to papers required to be filed or delivered to the
court.

[Fourth sentence of General Rule of Practice 19. See Board’s rule 46,
identical, except that the board omitted the last clause as follows: “but
this waiver shall not apply to papers required to be filed or delivered to

the court.” ]

Rule 40. Lost or withheld papers. Where an original plead-
ing or paper is lost, or withheld by any person, the court may
authorize a copy to be filed and used instead of the original.

[Code § 726. See Board’s rule 45, identical.]
1386 Reporr or Joinr Lecrsiative ComMitrren

ARTICLE 8
PAYMENT INTO AND OUT OF COURT

Rule 41. Expenses of administration of court funds.

42. Gross sum in lieu of income of money paid into court.

43. Consents to payment of money out of court.

44. Order for payment of money out of court.

45. Requirements as to orders for payment of money out
of court.

46. Requirements as to drafts for the payment of money

out of court.

47. Report of county treasurer and chamberlain as to
moneys paid into court.

.48. Duties of trust companies as to deposits of moneys paid
into court.

Rule 41. Expenses of administration of court funds. When
a party[, as a tenant for life, or by the curtesy, or in dower,]
is entitled to the annual interest or income of any sum paid into
court and invested in permanent securities, he [such party] shall
be charged with the expense of investing such sum and of receiving
and paying over the interest or income thereof.

[General Rule of Practice 70, first clause. Included by Board in rule 49,
last sentence. ]

Rule 42. Gross sum in lieu of income of money paid into
court. If [such] a party [is willing, and]. consents to accept
a gross sum in lieu of [such] annual interest or income for life
of a sum of money paid into court for his benefit, the same shall
be estimated according to the then value of an annuity of five
per centum on the principal sum, during the probable life of
such person, according to the Carlisle Table of Mortality.

‘(General Rule of Practice 70, last clause, without change of substance.]

Rule 43. Consents to payment of money out of court. All
consents [providing] for the payment of money out of court shall
be acknowledged before an officer authorized to take the ac-
knowledgment of deeds, accompanied with proof of the identity
of the applicant from some person other than the applicant, before
any order is granted thereon.

[General Rule of Practice 12, without change.]
Rurzs or Courr 1387

Rule 44. Order for payment of moneys out of court. No
order shall be made for the payment [of any such moneys] to
any person of money paid into court, except upon petition, duly
acknowledged, accompanied by a certified copy of the order,
af any, in pursuance of which the money was brought into court,
together with a statement of the county treasurer, city chamber-
lain or other depository of the money, showing the present state
and amount of the fund, separating the principal and interest,
and showing the amount of each; and the court may take such
proof of the truth of the matters stated in the petition as shall
be deemed proper or may refer the same to a suitable referee to
take proof and report thereon.

(General Rule of Practice 59, last sentence, now applicable only to money

arising from the sale of infant’s real estate. Included by Board in rule 49
and given general application.]

Rule 45. Requirements as to orders for payment of money
out of court. No order, in an [a pending] action, for the pay-
ment of money out of court shall be made except on regular notice
or order to show cause, duly served on the attorneys of all the
parties who have appeared therein or filed noticesor claim thereto.
Every order directing the payment of money out of court or for
the payment of the interest or accumulation thereon shall direct
the payment to be made to the person entitled to receive the same.
An attorney or other person procuring an order for the payment
of money out of court shall obtain two certified copies of the
order, both to be countersigned by the judge granting the same;
one copy shall be filed with the county treasurer or other custo
dian of such money, and the other shall accompany the draft
drawn upon the depository and be filed with such depository.
No bank, trust company or other depository shall pay out any
- of such money without the production and filing of such certified
and countersigned copy order; but where periodical payments are
directed to be made by such an order the filing with the depository
of one such copy of the order shall be sufficient to authorize the
payment of subsequent drafts in pursuance of such order.

[General Rule of Practice 69, in part rewritten without intended change
of substance. This rule together with rule 46, covers all of General Rule

of Practice 69, except the third and fourth sentences.]

Rule 46. Requirements as to drafts for the payment of
money out of court. Every draft for the payment of money out
1388 Reporr or Joint Lzeaisiative CoMMITTER

of court, or for the payment of the interest or accumulation
thereon, shall be drawn payable to the order of the person entitled
thereto, and shall specify the title of the cause or matter on ac
count of which the draft is made and the date of the order author-
izing such draft.

{General Rule of Practice 69, in part, rewritten. Included by Board in
banking law.]

Rule 47. Report of county treasurers and chamberlain of
city of New York as to moneys paid into court. On or before
the first day of February in each year the county treasurer in
each county and the chamberlain of the city of New York shall
file a report duly verified with the appellate division of the
supreme court of the department in which the county is embraced
containing a statement of all moneys in his hands on the first day
of January preceding that have been paid into court or received
by him to the credit of any action or proceeding, specifically stat-
ing the securities in which the moneys so paid into court are
invested or the depositories in which such moneys are deposited.
In case such county treasurer or chamberlain refuses to comply
with this rule the appellate division of the department shall issue
an order requiring him to file such statement within the time
specified therein and obedience to such order may be enforced as
for contempt of court.

[General Rule of Practice 68.]

Rule 48. Duties of trust companies as to deposits of moneys
paid into court. When moneys are deposited by the order of
the court in any trust company, the entry of such deposit in the
books of the company shall contain a short reference to the title
of the cause or matter in which such deposit is directed to be
made, and shall specify also the time from which the interest
or accumulation on such deposit is to commence, where it does
not commence from the date of such deposit. The secretary of
the company [shall], on or before the first day of February in
each year, shall transmit to the appellate division of the supreme
court in the department in which the trust company is located a
statement of the accounts in each department, showing the amount,
on the last preceding first day of January, including the interest
or accumulation on the sum deposited to the credit of each cause
or matter.

[General Rule of Practice 69, third and fourth sentences.]
Rurzs or Court 1389

ARTICLE 9
PUBLICATION

Rule 49. Publication of papers in first department; designation
of newspapers.

Kale 49. Publication of papers in first department; desig-
nation of newspapers. Whenever a notice, summons, citation,
order or other paper shall be required to be published by the
[Code of Civil Procedure] Civil Practice Act or other provision
of law, or by the order of any court or a judge thereof, or of a
surrogate or of the clerk of a court or any other official or in-
dividual, [to be published] in a newspaper in the first depart-
ment, or public notice of any application to a court or judge or
other officer shall be required to be given by publication thereof
in a newspaper in the the first department, or where any court
or a judge thereof or a surrogate or other judicial officer or pub-
lic officer is authorized or required to designate a newspaper in
the first department for the publication of any such notice, sum-
mons, citation, order or other paper, the newspaper designated
by any court or judge thereof, or surrogate or other judicial
officer or public officer, shall be a newspaper designated by the
appellate division of the supreme court in the first department
as hereinafter provided, and no such publication shall be deemed
to give the notice required to be given if the same is published
in any newspaper in the first department which has not been
designated by an order of the appellate division of the supreme
court in the first department; and the publication of such notice,
summons, citation, order or other paper in any undesignated
newspaper in the first department shall not be deemed a com-
pliance with any provision of the [Code of Civil Procedure]
Civil Practice Act or other provision of law or of the order of
any court or judge.

The appellate division of the supreme court in the first de-
partment, [shall¥ from time to time, shall designate such news-
papers in such department as in its opinion have such a ciroula-
tion as is calculated to give public notice of a legal publication,
and from time to time revoke such designation. To entitle a
1390 Report or Joint Learsuative ComMirrer

newspaper to such a designation, it must file with the clerk of
the appellate division a statement, duly verified, showing approxi-
mately the amount of its circulation, the time and place of its
regular publication, and a statement of its charges for legal
publications.

[General Rule of Practice 86.]

ARTICLE 10
SECURITY

Rule 50. Form and requisites of bond or undertaking.
51. Failure to file required bond or undertaking.
52. Attorneys not to be sureties or bail.

Rule 50. Form and requisites of bond or undertaking. The
following provisions regulate the form and requisites of a bond
or undertaking in an action or special proceeding, unless other-
wise provided by statute or rule:

1. The principal need not join with the sureties in its
execution ;

2. The execution by one surety is sufficient, although the word
““ sureties’ is used in the statute or rules;

3. It must be joint and several in form where two or more per-
sons execute it;

4. Except when executed by a fidelity or surety company, it
must be accompanied with the affidavit of each surety, subjoined
thereto, to the effect that he is a resident of and a householder
or.a free-holder within the state, and is worth the penalty of the
bond, or twice the sum specified in the undertaking, over all the
debts and liabilities which he owes or has incurred, and exclusive
.of property exempt by law from levy and sale under an execution;
.but when given by a party without a surety it must be accom-
panied by his affidavit to the same effect ;

_ 5. It must be acknowledged or proved in like manner as a
deed to he recorded ;

6. It must be approved by the court, or a judge thereof, or the
judge before whom the proceeding is taken, and the approval
must be indorsed thereon ;
Rurzs or Court 1391

7. It must be filed with the clerk of the court, unless other-
wise ordered, or otherwise prescribed by statute or rule.

[Subd. 1 is Code § 811, first clause. ‘Subd. 2 is Code § 811, second clause.
Subd. 3 is § 812, first clause. Subd. 4 is § 812, second clause, and second sen-
tence. Subd. 5 is Code § 810. Covers also second sentence of General Rule
of Practice 5. Subd. 6 is Code § 812, third and fourth sentences. Subd. 7
is Code § 816. Substantially the same as Board rule 52.]

Rule 51. Failure to file required bond or undertaking.
Except where otherwise expressly provided [by law], it shall
be the duty of the attorney of the party required to give a bond
or undertaking in an action or special proceeding to forthwith
file the same with the proper clerk; and in case such bond[[s
and] or undertaking[s] shall not be so filed, any party to the
action or special proceeding, or other persons interested, shall be
at liberty to move the court to vacate the proceedings or order
as if no bond or undertaking had been given.

[General Rule of Practice 4, first sentence, without change of substance.]

Rule 52. Attorneys not to be sureties or bail: In no case
shall an attorney or counselor be surety on any undertaking or
bond required by law or by these rules or by any order af a
court or judge in any action or proceeding or be bail in any
civil or criminal case or proceeding.

[Last sentence of General Rule of Practice 5.]

ARTICLE 11
SERVICE OF PAPERS

Rule 53. Mode of service of papers generally.
54. Manner of service of papers to commence a special

proceeding.

Rule 53. Mode of service of papers generally. A notice or
other paper in an action (other than a summons or other process,
a paper to bring a party into contempt, or where the mode of
service is specially prescribed by law), may he served on a party
or an attorney either by delivering it to him personally’ or in
the manner following : a

1. Upon a party or an attorney, through the post-office, ‘by
1392 Report or Joint Leatstative ComMirrer

depositing the paper properly inclosed in a post-paid wrapper 12
the post-office (or in any post-office box regularly maintained by
the government of the United States and under the care of the
post-office) of the party or the attorney serving it, directed to
the person to be served at the address within the state designated
by him for that purpose upon the preceding papers in the action;
or, where he had not made such a designation, at his place of
residence or the place where he keeps an office, according to the
best information which can [conveniently] be obtained con-
venently concerning the same;

2. Upon an attorney, during his absence from his office, by
leaving the paper with his partner or clerk therein or with a
person having charge thereof; if there is no person in charge
of his office and the service is made between six o’clock in the
morning and nine o’clock in the evening by leaving it in a con-
spicuous place in his office;

8. Upon an attorney, if his office is not open, by depositing
it, enclosed in a sealed wrapper directed to him, in his office
letter-box which he shall keep for that purpose attached to his
office door and accessible from without his office, or by leaving the
paper at his residence within the state with a person of suitable
age and discretion;

4. Upon an attorney, if his office is not open and there is no
office letter-box and no person of suitable age and discretion at
his residence upon whom service can be made, by leaving it with
the clerk of the court in which the action or proceeding is pend-
ing. Service of a paper, which might be made upon an attornev
admitted and practicing as such in this state but residing in an
adjoining state, at his residence, if he was a resident of the state.
may be made upon him by depositing the paper in a post-office
in the city or town where his office is located properly inclosed
in a postpaid wrapper directed to him at his office. A service
made as provided in this sub-division is equivalent to personal
service upon him;

5. Upon a party by leaving the paper at his residence within
the state, between six o’clock in the morning and nine o’clock in —
the evening, with a person of suitable age and discretion; where
a party who has appeared in person resides without the state or
his residence cannot [with reasonable diligence] be ascertained
with reasonable diligence, and he has not desionated an address
Ruxzs or Court 1393

within the state upon the preceding papers, service of a paper
upon him may be made by serving it on the clerk of the court.
[Board Rule 61. The first paragraph is Code § 796, first sentence, and
Code § 802. Subd. 1 is Code § 797, subd. 1. Subd. 2 ig Code § 797, subd. 2
and subd. 3 first clause. Subd. 3 is Code § 797, subd. 3, second clause.
Subd. 4, first sentence is new. The remainder of the subdivision is Code

§ 60, without change of substance. Sudb. 5 is Code § 797, subd. 4, and
§ 800.]

Rule 54. Manner of service of papers to commence a special
Proceeding. The provisions of [this article,] statute and rule
relating to the mode of personal service of a summons apply like-
wise to the service of any process or other paper whereby a special
proceeding is commenced in a court, or before an officer, except a
proceeding to punish for contempt, and except where other special
provision for the service thereof is [otherwise] made by law.

[Code § 433. The reference to “this article” is omitted and the words
“statute and rule” and “personal” inserted, for the reason that article
first of title first of chapter fifth of the Code, to which reference is made,
consisting of §§ 416-434, relates to personal service only of the summons
and accompanying papers. ]

ARTICLE 12

STAY
Rule 55. Stay of proceedings for change of venue.

Rule 55. Stay of proceedings for change of venue. No order
to stay proceedings for the purpose of moving to change the place
of trial shall be granted unless it shall appear from the papers
that the defendant has used due diligence in preparing the motion
for the earliest practical day after issue joined. Such order shall
not stay the plaintiff from taking any step, except subpenaing
witnesses for the trial, without a special clause to that effect.

[General Rule of Practice 48, first two sentences. ]

ARTICLE 13
STIPULATION
Rule 56. Oral agreement between parties or counsel.

Rule 56. Oral agreement between parties or counsel, An
agreement or consent between the parties or their attorneys in
1394 Report or Jornt LecisuattvE ComMMiIrrrer

respect to a matter in an action or a proceeding, shall not be
binding unless the evidence thereof shall be in writing subscribed
by the party against whom the same shall be alleged, or by his
attorney or counsel, or reduced by consent to the form of an order
and entered.

[Board’s rule 65. General Rule of Practice 11, in substance.]

ARTICLE 14
WANT OF PROSECUTION

Rule 57. Motion for dismissal of complaint.

Rule 57. Motion for dismissal of complaint. Whenever an
issue of fact in any action pending in any court has been joined
and the plaintiff therein shall fail to bring the same to trial ac-
cording to the course and practice of the court, the defendant,
at any time after younger issues shall have been tried in their
regular order, may move [at Special Term] for the dismissal of
the complaint with costs.

If it be made to appear to the court that the neglect of the
plaintiff to bring the action to trial has not been unreasonable,
the court may permit the plaintiff, on such terms as may he just,
to bring the said action to trial at a future term.

[General Rule of Practice 36, first part.]

ARTICLE 15
VENUE

Rule 58. Demand for change of place of trial.
59. Taking effect of order changing place of trial.

Rule 58, Demand for change of place of trial. Where the
defendant 7n an action in the supreme court demands that the
action be tried in the proper county, his attorney must serve
upon the plaintiff’s attorney with the answer or before service
of the answer a written demand accordingly. The demand must
specify the county where the defendant requires the action to
be tried. Tf the plaintiff's attorney does not serve his written
Rurses oF Court 1395

consent to the change as proposed by the defendant within five
days after service of the demand, the defendant’s attorney, [may]
within ten days thereafter, may serve notice of a motion to change
the place of trial.

[Code § 986 without change. See Board’s proposed rule 83, which is iden-
tical, except that the Board omits the reference to “action in the supreme

court.” This limitation has been inserted because of the language of Code
§ 991.

The court, in McConihe v. Palmer, 76 Hun 116, 117, says:
“In this case the defendant omitted to serve a demand on the plaintiff for
a change of the place of trial, but that, we apprehend, did not deprive the

court of the power when applied to, to change the place of trial to the proper
county.”

In the same case the court, referring to this section, says: :

“But it seems that the section is directory only, and not mandatory, and
that the court may, when a satisfactory reason is presented, dispense with
the making of such demand, and change the place of trial to the proper
county, although no demand was made as required by that section, and
after the time fixed therein for such demand, provided the motion is made
with due diligence.”]

Rule 59. Taking effect of order changing place of trial.
An order to change the place of trial of an action in the supreme
court takes effect upon the entry thereof in the office of the clerk
of the county from which the place of trial is changed. But for
the purposes of the place of hearing a motion to set it aside, or
an appeal therefrom, the place of trial is deemed unchanged.

[Code § 989 without change. See Board’s proposed rule 84, which is identi-
cal except for the reference to the Supreme Court. Omitted by the Board
and inserted here because of the limitation contained in Code § 991.

Code § 991 has been omitted, as references are made in text of sections
wherever necessary. ]

ARTICLE 16
PARTIES

Rule 60. Petition for leave to sue as poor person.
61. Order to sue as poor person.
62. Leave to defend as poor person.
63. Qualification of guardian ad litem.
64. Security of guardian ad litem.
65. Duty of guardian ad litem.
66. Compensation of guardian ad litem.
1396 Reporr or Jormvr Luaistative ComMitrrEr

Rule 60. Petition for leave to sue as poor person. [The]
An application for leave to prosecute as a poor person shall be made
by petition to the court in which the action is pending or in which
it ts intended to be brought, which petition must state:

1. The nature of the action brought or intended to be brought;

2. That the applicant is not worth one hundred dollars besides
the wearing apparel and furniture necessary for himself and
his family and the subject matter of the action.

It must be verified by the applicant’s affidavit, unless the ap-
plicant is an infant under the age of fourteen years and in that
case by the affidavit of his guardian appointed in said action,
and supported by the certificate of a counselor-at-law to the effect
that he has examined the case and is of the opinion that the
applicant has a good cause of action.

[Code § 459 without change of substance. See Board’s proposed rule 98
which is practically identical with § 459. The new matter was taken from
Code § 458.]

Rule 61. Order to sue as poor person. The court to which
the petition is presented, if satisfied of the truth of the facts
alleged and that the applicant has a good cause of action, [may]
by order [admit] may permit him to prosecute as a poor person
and assign to him an attorney [and counsel] to prosecute his
action who must act therein without compensation. If the per-
son so [admitted] permitted is guilty of improper conduct in the
prosecution of his action or of wilful or unnecessarv delay the
court [may], in its discretion, may annul the order [admitting]
permitting him to prosecute as a poor person, and thereafter he
shall [thereafter] be deprived of all the privileges conferred
thereby.

[Code §§ 460 and 462 without change of substance. “Admit” is changed

to “permit” as the latter seems a more appropriate term. See Board’s
proposed rule 99.]

Rule 62. Leave to defend as poor person. The petition must
contain the same matters respecting the ability of the petitioner
required to be contained in a petition for leave to prosecute as
a poor person and it must be supported by a similar certificate
relating to the defense. The foregoing provisions [of this article]
relating to the order to be made upon an application for leave to
prosecute as a poor person and the proceedings subsequent thereto
Ruuzs or Courr 1397

apply to the order and subsequent proceedings upon an applica-
tion to defend as a poor person.

[Code §§ 464 and 465 without change. See Board’s proposed rule 100.]

Rule 63. Qualification of guardian ad litem. The following
regulations shall apply to the appointment of @ guardian ad litem
of an infant:

1. He shall be either the general guardian of the infant or a
person fully competent to understand and protect the rights of
the infant;

2. He shall have no interest adverse to that of the infant or be
connected in business with the attorney or counsel of the adverse
party ;

3. He shall be of sufficient ability to answer for any damage
which may be sustained by his negligence or misconduct in the
defense or prosecution of the suit, and such. ability shall be shown
by affidavit stating facts in respect thereto;

4. Any trust company authorized by the laws of the state to
act as a general guardian without giving security may be ap-
pownted ;

5. [No person other than the clerk, shall be appointed a guar-
dian ad litem unless by] The written consent of the proposed
guardian, duly acknowledged [is produced to the court or judge
making the appointment], shall be filed, except in the case of the
clerk of the court who shall act in that capacity for an infant
defendant where the court or judge appoints him;

6. He shall not be nominated by the adverse party;

7. It shall be the duty of every attorney or officer of the court
to act as the guardian of an infant defendant in any suit or pro-
ceeding against him whenever appointed for that purpose by an
order of the court. ee

[Subds. 1, 2, 3 and 6 are taken from General Rule of Practice 49; subd. 4
from Code § 2352 which now applies to infants’ realty proceedings and
which has been here made general in application; subd. 5 from Code § 472,
second and third sentences; subd. 7 is from General Rule of Practice 50.
See Board’s proposed rule 105 which contains six subdivisions corresponding

to subds. 1-6 of the rule as above stated except that the Board’s rule applies
these provisions also to the guardian of an idiot, lunatic or habitual

drunkard.]

Rule 64. Security of guardian ad litem. 1, Except in a case
where it is otherwise specially prescribed by law, a guardian
1398 Reporr or Joint Leqistative ComMMItTTEE

ad litem appointed for an infant [as prescribed in this article]
shall not be permitted to receive money or property of the infant,
other than costs and expenses allowed to the guardian by the
court, until he has given sufficient security, approved by a judge
of the court or a county judge, to account for and apply the same
under the direction of the court; provided, however, that where
the money or the value of such property does not exceed one hun-
dred dollars, security may be dispensed with in the discretion
of the court.

2. Such security shall be a bond to the infant conditioned for
the faithful discharge of the trust, for the paying over and invest-
ing of and accounting for all moneys received by the guardian
and for the observance of any provision of law and rules and the
directions of the court in relation to the trust. New or additional
security may be required by the court.

8. [Any] Where a trust company [[authorized by the laws
of this state to act as general guardian of the estate of an infant
without giving security may be] is appointed such [special]
guardian, [and in such case the court in] the order of appoint-
ment may dispense with the giving and filing of any such bond.

4. [The last two sections do] This section does not apply to
the general guardian of the infant who has been appointed his
guardian ad litem[[, as prescribed in this article], but the court,
[may] at any time, may require the general guardian to give
additional security for the faithful discharge of his trust before
receiving money or property of the infant under a judgment or
order in the action.

[Subd. 1, down to semicolon, is Code § 474. See Board’s proposed domestic
relations law, § 66-e, which contains an identical provision. Last clause
of Sub. 1, containing new matter, is inserted to cover cases where the amount
to be paid over is small and does not justify the expense or annoyance of
securing w bond.

Subd. 2 is new. See Board’s proposed rules 104 and :106, also General
Rules of Practice 51 and Code §§ 474, 475. Code § 475 has been omitted.

Subd. 3 is Code § 2352, last sentence. The part authorizing the appoint-
ment of a trust company is covered by the last rule. Subd. 4 is Code § 476.
See Board’s proposed domestic relations law, § 66-e, which contains an
identical provision. Code § 1536 is ommitted as covered.]

Rule 65. Duty of guardian ad litem. [¢ shall be the duty of
a guardian ad litem to examine into the circumstances of the case
so far as to enable him to [make the proper defense when neces-

sary for the protection of] properly protect the rights of the
infant and to account for all moneys received by him and invest
Russ or Court 1399

the same according to the directions of the court and to fatth-
fully execute his trust.

[General Rule of Practice 50, part, re-written. The first part of the rule
is taken from General Rules of Practice 50, part; the last part is taken
from Code § 2351, part of the second sentence. This rule is identical with
Board’s proposed rule 107, except that here the words “make the proper
defense when necessary for the protection of” have been omitted and the
words ‘‘ properly protect” substituted therefor, so that the section will apply
to the guardian of an infant plaintiff as well as of an infant defendant.]

Rule 66. Compensation of guardian ad litem. A guardian
ad litem shall be entitled to such compensation for his services as
the court may deem reasonable, but no order allowing compensa-
tion to a guardian ad litem shall be made except upon an affi-
davit to be made by such guardian if an attorney of the court,
or if the guardian be not an attorney then upon an aftidavit to
be made by an attorney of the court who has acted in the matter
in behalf of such guardian showing that he has examined into
the circumstances of the case and [has], to the best of his ability,
has made himself acquainted with the rights of [his] the ward
and that such guardian has taken all the steps necessary for the
protection of such rights to the best of his knowledge and as he
believes, stating what has been done by him for the purpose of
ascertaining the rights of the ward.

[General Rule of Practice 50, part verbatim. See Board’s proposed rule
108, practically identical.]

ARTICLE 17
SUMMONS

Rule 67. Requisite of summons.
68. Form of summons.
69. Form of supplemental summons.
70. Notice in action for penalty or forfeiture.
71. Papers to be filed in case of substituted service on resi-
dent defendant; when service complete.
Order for service of summons by publication; contents.
Time of publication of summons or making service with-
out the state; when service complete.
74. Papers to be filed wpon service by publication or with-
out the state; notice to defendant.
75. Proof of service of summons.

oo te
1400 Reporr or Jorvr Leaistative Commirrir

Rule 67. Requisites of summons. The summons must contain
the title of the action, specifying the court in which the action is
brought, the names of the parties to the action, and, if it is brought
in the supreme court, the name of the county in which the plaintiff
desires the trial.[; and] It must be subscribed by the plaintiff’s
attorney who must add to his signature his office address specify-
ing a place within the state where there is a post office. If in a
city, he must add the street and the street number, if any, or other
suitable designation of the particuler locality.

[Code § 417 without change. ‘See Board’s proposed rule 89 which is
practically identical.]

Rule 68. Form of summons. The summons, exclusive of the
title of the action and the subscription, must be substantially in
the following form, the blanks being properly filled:

“To the above named defendant: You are hereby summoned
to answer the complaint in this action and to serve a copy of your
answer on the plaintifi’s attorney within twenty days after the
service of this summons, exclusive of the day of service; and in
case of your failure to appear or answer, judgment will be taken
against you by default for the relief demanded in the complaint.
Dated 2?

[The summons is deemed the mandate of the court.]

[Code § 418 without change except the omission of the last sentence which
has been placed in section entitled ““Summons generally.” See Board’s pro-
posed rules 89 and 90. Rule 90, except the last paragraph, presenting a
form for a “summons to appear ” is identical with the section as here stated.

Rule 89 contained the last sentence of ‘Code § 418 which the committee has
covered elsewhere. ]

Rule 69. Form of supplemental summons. \\here a supple-
mental summons is issued, 1¢ must be in the same form as an
original summons, except that in the body thereof it must require
the defendant to answer the original or the amended complaint
and the supplemental complaint or either of them as the case
requires.

[Code § 453, part of first sentence, without change.]

Rule 70. Notice in action for penalty or forfeiture. In an
action to recover a penalty or forfeiture given by a statute and in
an action brought to recover real or personal property forfeited or
Ruuss or Covurr 1401

@ penalty imcurred to the people of the state or to an officer for
thetr use pursuant to a provision of law, if a copy of the complaint
is not delivered to the defendant with a copy of the summons, a
general reference to the statute must be indorsed upon the copy
of the summons so delivered in the following form: “According
to the provisions of ” ete., adding such a description of the statute
as will identify it with convenient certainty and also specifying
the section if penalties or forfeitures are given in different sections
thereof for different acts or omissions.

[Code § 1897 without change. For new matter see Code § 1964. See Board’s
proposed rule 92, which is identical with § 1897 as here stated.]

Rule 71. Papers to be filed in case of substituted service on
resident defendant; when service complete. [The] An order
for substituted service, other than by publication, of a summons
within the state upon a resident, a domestic corporation or a joint
stock or other unincorporated association, and the papers upon
which it was granted, must be filed and the service made within
ten days after the order is granted; otherwise the order becomes
inoperative. On filing [an affidavit showing service according
to the order] proof of such service the summons is deemed served
and the same proceedings may be taken thereupon as if it had
been served by publication pursuant to an order for that purpose
[made as prescribed in the next section].

[Code § 437, without change of substance, except that the proof of service is
included in a separate rule.]

Rule 72. Order for service of summons by publication; con-
tents. [It] The order for service of a summons by publication
must direct that service of the summons upon the defendant named
or described in the order be made by publication thereof in two
newspapers designated in the order as most likely to give notice
to the defendant, for a specified time, which the judge deems
reasonable, not less than once a week for six successive weeks.
Tt must also contain either a direction that on or before the day
of the first publication the plaintiff deposit in a post-office one or
more sets of copies of the summons, complaint and order [each
contained in a securely closed] properly inclosed in a postpaid
wrapper [directed] addressed to the defendant, and if the defend
ant be an infant, addressed to his father, mother or guardian or a
person having the care or control of him or with whom he resides
1402 Report or Jornt Leaisinative CoMMITrEer

or inv whose service he is employed, at a place specified in the
order, or a statement that the court or judge, being satisfied by the
affidavits upon which the order was granted that the plaintiff,
[cannot] with reasonable diligence, cannot ascertain a place or
places where the defendant, or any such person, [would] probably
would receive matter transmitted through the post-office, dispenses
with the deposit of any papers therein. When it appears by the
affidavits upon which the order was granted that the defendant
is within the country with which the United States of America
is at war, or in a place with which by reason of the existence
of a state of war the United States of America does not maintain
postal communication, the order may dispense with the mailing
of any papers to such defendant, and in lieu thereof shall direct
that such papers be mailed to such officer as may have been
appointed by the president of the United States of America to
take possession of the property of alien enemies, at Washington,
District of Columbia, on behalf of such defendant.

[Code § 440, except first sentence, without intended change of substance,

except new matter added as indicated. Same in substance as subds. 1 and 2
of Board’s rule 215.]

Rule 73. Time of publication or making service without the
state; when service complete. The first publication of a sum-
mons in each newspaper designated in the order therefor, or
[personal] service upon the defendant without the state in lieu
thereof, must be made within three months after the order is
granted. For the purpose of reckoning the time within which
-the defendant must appear or answer, service by publication is
complete upon the day of the last publication pursuant to the
order, and service without the state in lieu. of publication is com-
plete ten days after proof thereof is filed.

[Code § 441, without change of substance. The last clause is from § 443,
subd. 4. Board’s rule 215, subds. 7 and 8, and rule 218, subd. 3.]

Rule 74. Papers to be filed upon service by publication or
without the state; notice to defendant. Where service is made
by publication, or without the state in lieu thereof, the summons,
complaint and order and the papers upon which the order was
made must he filed with the clerk on or before the day of the first
publication[; and] or the day of such service. A notice sub-
scribed by the plaintiff’s attorney and directed only to the defend-
ant or defendants thus to be [thus] served, substantially in the
Ruxes or Court 1403

following form, the blanks being properly filled up, must be sub-
Joined to and published with the summons:

“To : The foregoing summons is
served upon you by publication pursuant to an order of
” (naming the judge and his official title), “dated the
day of «19 ‘
and filed with the complaint in the office of the clerk of
at ae

Where service is made without the state under an order for
publication of the summons a notice in substantially the above
form must be served with the summons except that the words
“Without the state of New York” shall be substituted for the
words ‘“ by publication.”

Where the action is brought to recover a judgment affecting
the title to, or the possession, use or enjoyment of real property,
the notice shall also briefly state the object of the action and give
a brief description of the property.

[Code § 442, without change of substance, and § 443, subd 1. Board’s rule
215, subds. 3-5, and 218, subd. 1. Last paragraph is intended to cover Code
§ 1541, where party in partition action is unknown, but the provision is here

made of general application to real property actions in the cases specified.
See Board’s proposed rule 215, subd. 6.]

Rule 75. Proof of service of summons. Proof of service of a
summons shall be made subject to the following regulations:

1. Proof of the personal service of a summons must be made
by affidavit except as follows: (a) If the service be made by a
sheriff, it may be proved by his certificate thereof; (b) if the
defendant served is an adult who has not been judicially declared
incompetent to manage his affairs, service may be proved by a
written admission signed by him and either acknowledged by him
and certified in like manner as a deed to be recorded in the county
or accompanied with the affidavit of a person other than the
plaintiff showing that the signature is genuine.

2. Personal service of a summons shall not be made by a
person under eighteen years of age and, if made by a person other
than the sheriff, it shall be necessary for such person to state in
his affidavit of service his age or that he is more than twenty-one
years of age.

3. Every certificate, admission or affidavit of service of a
summons must state the time and the particular place and manner
1404 Report or Jorne Leaisitative ComMitrrrs

of service and, if a certificate or affidavit, that the person making
the same knew the person served to be the person mentioned and
described in the summons as defendant therein and that he left
with the defendant a copy of the summons as well as delivered
such copy to him.

4. A written admission of the service of a summons imports,
unless otherwise expressly stated therein or otherwise plainly to
be inferred from its contents, that a copy of the summons was
delivered to and left with the person signing the admission.

5. Where a summons is served within the state upon a resident
of the state or upon a domestic corporation other than a municipal
corporation, or upon a joint-stock or other unincorporated associa-
tion, pursuant to an order for substituted service, proof of service
shall be made by the affidavit of the person making such service
showing compliance with the order, except that service by delivery
to any person of a copy of the summons, if such service be made
by the sheriff, may be proved by his certificate. :

6. When the summons is served personally without the state
the affidavit of service must show that the deponent is an officer
or person authorized by law to make the service, and, if made by a
resident or citizen of this state, it must show his place of residence
and street number, if any. The affidavit, if made without the
state, shall have annexed thereto a certificate of the proper official
showing that the person before whom the affidavit was sworn to
was qualified to act at the time of administering the oath [quali-
fied to act].

7. Proof of publication of a summons and notice must be
made by the affidavit of the printer or publisher or his foreman
or principal clerk.

8. Proof of deposit of a summons in the post-office must be
made by the affidavit of the person who deposited it.

9. In matrimonial actions, the affidavit, in addition to the
above requirements, shall state what knowledge the affiant had
of the person served being the defendant and proper person
to be served and how he acquired such knowledge. The court
may require the affiant to appear in court and be examined in
respect thereto and, when service has been made by the sheriff,
the court must require the officer who made the service to appear
and be examined in like manner unless there shall he presented
with the certificate of service the affidavit of such officer that
he knew the person served to be the same person named as defend-
Ruxzes or Court 1405

ant in the summons and shall also state the source of his knowl-
edge.

10. In matrimonial actions where the summons is personally
served, but a copy of the complaint is not served therewith or
where a copy of the summons and a copy of the complaint are
delivered to the defendant without the state, the certificate or
afidavit proving service shall state affirmatively [state] in the
body thereof that the required notice was written or printed upon
the face of the copy of the summons delivered to the defendant.

11. The provisions of this rule relating to summons shall apply
to a notice or other paper accompanying the summons.

[General Rule of Practice 18, and Code of Civil Procedure, §§ 434 and
437, and subd. 5 of § 443 and § 444, without intended change of substance,
except that the sheriff as well as a private person is required to show by his
return that he knew the person served to be the defendant in the action, other-
wise than appears to be required by General Rule of Practice 18. This change
is more apparent than real because as a matter of fact the printed returns

used by sheriffs contain a statement as to the identity of the defendant.
Subd. 10 is Code § 1774, second sentence. See Board’s rule 219.]

ARTICLE 18
APPEARANCE

Rule 76. Substitution of attorney.

Rule 76. Substitution of attorney. An attorney may be
changed by the order of the court or a judge thereof wpon the
consent of the party and his attorney, or upon application of the
[client], party upon cause shown and upon such terms as shall
be just[[, by the order of the court or a judge thereof and not
otherwise].

[General rule of practice No. 10 rewritten, without change of substance. See
Board’s proposed rule 140.]

ARTICLE 19

PLEADINGS
GENERAL RULES OF PLEADING

Rule 77. Formal requirements of pleadings.
78. Pleadings; how subscribed.
1406 Report or Jornr Leaistative ComMitrEeE

SPECIAL RULES OF PLEADING

Rule 79. Conditions precedent; how pleaded.
80. Pleading by or against corporation.
81. Instrument for payment of money.
82. Pleading judgment or determination.
83, Pleadings in libel and slander.
84. Pleading in action for slander of a woman.
85. Private statute; how pleaded.

AMENDED AND SUPPLEMENTAL PLEADINGS
86. Service of amended pleading.

VERIFICATION

87. By whom verification made.
88. Form of affidavit of verification.

OBJECTIONS TO PLEADINGS

89. Amendment of pleading containing indefinite, uncer-
tain or obscure matter.

90. Striking out matter contained in a pleading.

91. Sham or frivolous answer or reply.

92. Motions addressed to pleadings.

Rule 77. Formal requirements of pleadings. Each separate
cause of action, counterclaim or defense shall be separately stated
and numbered, and shall be divided into paragraphs numbered
consecutively, each containing, as nearly as may be, a separate
allegation. The allegations contained in a separately numbered
paragraph of one cause of action, counterclaim or defense may be
incorporated as a whole in another cause of action, counterclaim
or defense in the same pleading by reference without otherwise

repeating them.

1! : “SRS AEN
[The provision relating to division of statements into numbered paragraphs

is from the New Jersey practice (1912), r. 17, providing as follows:

“The statement must be divided into paragraphs, numbered consecutively,
each containing as nearly as may be, a separate allegation.”

The New Jersey practice (1912), 4. 17, provides as follows: “ Dates, sums
and numbers must be in figures.” This has not been adopted by the Com-
mittee.

The first clause of the rule is from Code §§ 483 and 507, combined.

Code § 517 last clause, covered.
Rures or Courr 1407

The last sentence of the proposed rule is similar to New Jersey practice
(1912), r. 39. It does not state a new rule of pleading as determined by the
courts of this state, but it does make definite and certain a method for avoiding
“unnecessary repetition.” (See Velie vy. Newark City Ins. Co., 65 How. Pr.
1; McKenzie v. Fox, 29 St. Rep. 106.) See Board’s rule 141.]

Rule 78. Pleadings; how subscribed. A pleading must be
subscribed by the attorney for the party.

[Code § 520, first sentence, without change. See Board’s rule 141.)

Rule 79. Conditions precedent; how pleaded. In pleading
the performance of a condition precedent in a contract, it is not
necessary to state the facts constituting performance; but the
party may state, generally, that he, or the person whom he repre-
sents, duly performed all the conditions on his part. If that
allegation is controverted, he must [[, on the trial,] establish
performance, on the trial.

[Code § 533, without change. Same as Board’s rule 152.]

The corresponding English rule, order 19, 1. 14, reads as follows:

“Any condition precedent, the performance or occurrence of which is in-
tended to be contested, shall be distinctly specified in his pleading by the
plaintiff or defendant (as the case may be); and, subject thereto, an aver-

ment of the performance or occurrence of all conditions precedent necessary
for the case of the plaintiff or defendant shall be implied in his pleading.”’]

Rule 80. Pleading by or against corporation. 7, In an
action brought by or against a corporation, the complaint [must
aver] shall state that the plaintiff or the defendant, as the case
may be, is a corporation, [must state] whether it is a domestic
corporation or a foreign corporation, [and] if the latter, the
state, country or government by or under whose laws it was
created; but the plaintiff need not set forth or specially refer to
any act or proceeding by or under which the corporation was
created.

2, In such an action, [brought by or against a corporation, ]
the plaintiff need not prove, upon the trial, the existence of the
corporation, unless the answer 1s verified and contains an affirma-
tive allegation that the plaintiff, or the defendant, as the case
may be, is not a corporation.

8. In such an action or a special proceeding brought by or
against a corporation, the defendant is deemed to have waived any
1408 Rerortr or Jornr Leeistative ComMItTTEeE

mistake in the statement of the corporate name, unless the mis-
nomer is pleaded in the answer or other pleading in the defend-
ant’s behalf.

[Code §§ 1775, 1776 and 1777, without change except as indicated. The
Board covered § 1775 in its proposed rule 154; § 1776 in its proposed evidence
law § 28 and omitted § 1777 as covered by its proposed rule 188. The three

sections all relate. so closely only to the subject of “ pleading” that it is
deemed best to combine in a single section.]

Rule 81. Instrument for payment of money; how pleaded.
Where a cause of action, defense or counterclaim is founded upon
an instrument for the payment of money only, the party may set
forth a copy of the instrument and state that there is due to him
thereon from the adverse party a specified sum which he claims.
Such an allegation is equivalent to setting forth the instrument
according to its legal effect.

[Code § 534, without change.]

Rule 82. Pleading judgment or determination. In pleading
a judgment or other determination of a court or officer of special
jurisdiction, it is not necessary to state the facts conferring juris-
diction but the judgment or determination may be stated to have
been duly given or made, and if that allegation is controverted, the
party pleading must establish, on the trial, [establish] the facts
conferring jurisdiction.

[Code § 532, without change. Board’s rule 157, without change. ]

Rule 83. Pleadings in libel and slander. It is not necessary
in an action for libel or slander, to state in the complaint any
extrinsic fact for the purpose of showing the application to the
plaintiff of the defamatory matter, but the plaintiff may state.
generally, that it was published or spoken concerning him, and,
if that allegation is controverted, the plaintiff must establish it
on the trial. [In such an action, the defendant may prove miti-
gating circumstances, notwithstanding that he has pleaded or
attempted to prove a justification. ]

[Code § 585, first sentence. See Board’s rule 160.]

Rule 84. Pleading in action for slander of a woman. Ty an
action of slander, brought by a woman, for words imputing un-
Rouxes or Court 1409

chastity to her, it is not necessary to allege or prove special
damages. [If the plaintiff is married, the damages recovered
are her separate property.]

{Code § 1906, first sentence. Last sentence omitted as now covered by
domestic relations law.]

Rule 85, Private statute; how pleaded. In pleading a private
statute or a right derived therefrom, it is sufficient to designate ,
the statute by its chapter, year of passage, and title, or in some
other manner with convenient certainty, without setting forth any
of the contents thereof.

[Code § 530, verbatim. Board’s rule 165, verbatim.]

Rule 86. Service of amended pleading. Where a pleading is
amended, [as prescribed in the last section,] a copy thereof must
be served upon the attorney for the adverse party. A failure to
[demur to, or] answer the amended pleading, within twenty days
thereafter, has the same effect as a like failure to [demur to, or]
answer the original pleading.

[Code § 543 made general to apply to all amended pleadings, whether or

not amendments are made as of course. The latter part of § 543 is included
by the Board in “ judgments”. See Board’s rule 201, second sentence.]

Rule 87. By whom verification made. The verification must
be made by the affidavit of the party, or, if there are two or more
parties united in interest, and pleading together, by at least one
of them, who is acquainted with the facts, except as follows:

1. Where the party is a domestic corporation, the verification
must be made by an officer thereof.

2. Where the people of the state are, or a public officer in
their behalf, is the party, the verification may be made by any
person acquainted with the facts.

3. Where the party is‘a foreign corporation; or where the
party is not within the county where the attorney resides, or
if the latter is not.a resident of the state, the county where he
has his office and capable of making the affidavit; or if there are
two or more parties united in interest and pleading together,
where neither of them acquainted with the facts is within that
county, and capable of making the affidavit; or where the action

45
1410 Reprorr or Joint Learsnative Commrerrer

or defense is founded upon a written instrument for the payment
of money only which is in the possession of the agent or the
attorney; or where all the material allegations of the pleading
are within the personal knowledge of the agent or the attorney;
in either case the verification may be made by the agent of or
the attorney for the party.

(Code § 525, without change. See Board’s rule 175, practically identical]

Rule 88. Form of affidavit of verification. The affidavit of
verification must be to the effect that the pleading is true to the
knowledge of the deponent, except as to the matters therein stated
to be alleged on information and belief, and that as to those
matters he believes it to be true. Where it is made by a person
other than the party, he must set forth, in the affidavit, the
grounds of his belief as to all matters not stated upon his knowl-
edge and the reason why it is not made by the party.

[Code § 526, without change. Board’s rule 176.]

Rule 89. Amendment of pleading containing indefinite,
uncertain or obscure matter. If any matter contained in a
pleading be so indefinite, uncertain or obscure that the precise
meaning or application thereof is not apparent, the court may
require the pleading to be made definite and certain by amendment
and a new pleading served accordingly.

[Derived from Code § 546.

The term “obscure” is added from New Jersey practice (1912), r. 25. It
will be observed that the Code section does not in terms require the objection
under the section to be taken by motion only, and the committee has not
changed the provision in this respect, although General Rule of Practice 22
seems to imply that motion is the only method of procedure. Under the
precise terms of the section a court may by order without a motion require

a pleading to be made definite and certain.
See Board’s rule 170.]

Rule 90. Striking out matter contained in a pleading. If
any matter contained in a pleading be sham, frivolous, irrelevant,
redundant, repetitious, unnecessary, impertinent or scandalous or
may tend to prejudice, embarrass or delay the fair trial of the
action, the court may order such matter stricken out, in which ease
the pleading will be deemed amended accordingly, or the court
Rouxes or Courr 1411

may order an amended pleading to be served omitting the objec-
tionable matter. An objection to a pleading under this rule may
be taken only by motion of the party aggrieved.

[Code §§ 537, first two sentences, 538 and 545, first sentence.

The New Jersey rule (1912, r. 25) is as follows:

“ Unnecessary, repetitious, prolix, scandalous, impertinent, obscure and
uncertain, and any other violation of the rules of pleading, are respectively,

objectionable; also any pleading which is irregular, defective or so framed as
to embarrass or delay a fair trial.’’]

Rule 91. Sham or frivolous answer or reply. If an answer
or reply be sham or frivolous the court [may] either may treat
the pleading as a nullity and give judgment accordingly, or may
allow a new pleading to be served upon such terms as the court
deems just. An objection td a pleading under this rule may be
taken only by the party aggrieved.

[Code §§ 537, first two sentences, and 538 combined. ‘See notes to preceding
rule.]

Rule 92. Motions addressed to pleadings. A motion addressed
to a pleading must be noticed before the service of an answer or
reply thereto and within twenty days from the service of the
pleading to which the motion is addressed. The time to make
such motion shall not be extended unless notice of an application
for such extension stating the time and place thereof, of at least
two days, shall be given to the adverse party,

(General Rule of Practice 22, relating to a motion directed to uncertain
and indefinite pleadings and the like, is made general by the proposed rule.]

ARTICLE 20

DEPOSITIONS TAKEN AND TO BE USED
WITHIN THE STATE

Rule 93. Depositions to be used on motion.
94. Contents of affidavit upon application to take deposi-
tion. /
95. Order for examination generally.
96. Order for examination of corporation.

Rule 93. Deposition to be used on motion. Where a party
intends to make or oppose a motion in a court of record and it is
1412 Reporr or Joint Leaisuative CoMMITTEE

necessary for him to have the affidavit or deposition of a person not
a party to use upor the motion, the court or a judge authorized to
make an order in the case, [may] in its or his discretion, may
make an order appointing a referee to take the deposition of that
person. The order must be founded upon proof by affidavit that the
applicant intends to make the motion, or that notice of a motion
has been given which the applicant intends to oppose. The affi-
davit must specify the nature of the action and must show that
the affidavit or deposition is necessary thereon and that such
person has refused to make an affidavit of the facts which the
applicant verily believes are within his knowledge. If the defend-
ant has appeared in the action and the application is made on the
part of the plaintiff, at least one day’s notice of such application
must be given to the attorney for the defendant, and if the appli-
cation is made on the part of the defendant similar notice must be
given to the attorney for the plaintiff. The person to be examined
reay be subpoenaed and compelled to attend as upon the trial and
may be cross-examined by the party on whose attorney the notice
has been served. The deposition must be taken by question and
answer and he subscribed by the witness, and must be delivered
to the attorney for the party who procured the order, unless such
order provides for a different disposition thereof.

[Code § 885, without change.]

Rule 94. Contents of affidavit upon application to take
deposition. The person desiring to take a deposition [as pre
scribed in this article,]} may present to a judge of the court in
which the action is pending; or, if it is pending in the supreme
court, to a county judge; or, if an action is not pending but is
expected to be brought, to a judge of the supreme court or to a
county judge; an affidavit setting forth as follows:

1. The names and residences of all the parties to the action,
and whether or not they have appeared, and if either of them
has appeared by attorney, the name and the residence or office
address of the attorney; or, if no action is pending, the names
and residences of the expected parties thereto.

2. Tf an action is pending, the nature of the action and the
substance of the judgment demanded, and if the application is
made by the defendant before answer or by either party after
answer, the nature of the defense.
Rures or Courr 1413

3. If no action is pending, the nature of the controversy which
1s expected to be the subject thereof.

4. The name and residence of the person to be examined, [and
that the testimony of such person is material and necessary for
the party making such application, or the prosecution or defense
of such action, and if the action is to recover damages for per-
sonal injuries, that the defendant is ignorant of the nature and
extent of such personal injuries,J and, at the option of the appli-
cant, the place where the person to be examined [he] is sojourn-
ing, or where he regularly transacts business.

5. Facts and circumstances showing that the expected testi-
mony rs or may be material for the party making the applica-
tion in the prosecution or defense of the action or proceeding,
unless the witness be an adverse party to be examined after
issue joined and before trial.

6. If the action is against the applicant to recover damages for
personal injuries, that the applicant is ignorant of the nature and
extent of such injuries.

7. [5.] If an action is pending, that the person to be
examined is about to depart from the state; or that he is. so
sick or infirm as to afford reasonable ground to believe that he
will not be able to attend the trial; or that any other special
circumstances exist which render it proper that he should be
examined [as prescribed in this article]. But this subdivision
does not apply [to a case,J where the person to be examined is
[a] the adverse party [to the action].

8. [6.] If no action is pending, that the person expected to be
the adverse party is of full age, and a resident of the state or so-
journing within the state; or that he has an office within the
state where he regularly transacts business in person, specifying
the place, and, if it is in a city, the street and street number, or
other designation of the particular locality; or, if two or more
persons are expected to be adverse parties, that each is of full
age, and so resident or sojourning, or has an office; also the cir-
cumstances which render it necessary for the protection of the
applicant’s rights, that the witness’s testimony should be per-
petuated.

9. [[7. Anv other fact necessary to show that the case comes
within one of the two last sections. And iW/f the party sought to
be examined is a corporation, joint stock or other unincorporated
association, the affidavit shal] state the name of the officers,
1414 Rerorr or Joint LeeistarivE Com Mirrer

directors, [or] managing agents or employees thereof, or any of
them whose testimony is desired [necessary and material], or the
books and papers as to the contents of which an examination or
inspection is desired [and the order to be made in respect thereto
shall direct the examination of such persons and the production
of such books and papers, and on such examination the books or
papers, or any part or parts thereof, may be offered and received
in evidence in addition to the use thereof by the witness to refresh
his memory].

10. Any other fact necessary to show that the taking of the
deposition ts authorized,

[Code § 872; General Rule of Practice 82, amended as indicated.]

Rule 95. Order for examination generally. The judge to
whom such an affidavit is presented must grant’ an order for the
examination, if an action is pending; if no action is pending he
must grant it if there be reasonable ground to believe that an
action will be brought, as stated in the affidavit, and that the ap-
plication is made in good faith to preserve the expected testimony ;
otherwise he must dismiss the application. Where the person to
be examined is a party to a pending action, or is expected to be
a party to an action to be brought, the order [may], in the dis-
cretion of the judge, may designate and limit the particular mat-
ters as to which he shall be examined. Such limitation in an order
for the examination of an adverse party after issue joined and
before trial shall be made in such manner that an inquiry perti-
nent to the issue shall not be excluded. [In every action to re
cover damages for personal injuries, the court or judge, in grant-
ing an order for the cxamination of the plaintiff hefore trial may,
if the defendant apply therefor, direct that the plaintiff submit
to a physical examination by one or more physicians or surgeons,
to be designated by the court or judge, and such examination
shall be had and made under such restrictions and directions as
to the court or judge shall seem proper. In any action brought
to recover damages for personal injuries, where the defendant
shall present to the court or judge satisfactory evidence that he
is ignorant of the nature and extent of the injuries complained
of, the court or judge shall order that such physical examination
be made; and if the party to be examined shall be a female she
shall be entitled to have such examination before physicians or
surgeons of her own sex. The order must require the party or
Rures or Court 1415

persons to be examined to appear before the judge, or before a
referee named in the order, for the purpose of taking the examina-
tion, at a time and place therein specified. The order must also
direct the time of service of a copy thereof; which must be made
within the state, not more than twenty, nor less than five days,
before the time fixed for the examination, unless special circum-
stances, making a different time of service necessary, are shown in
the affidavit, and that fact is recited in the order.]

[Code § 873, amended as indicated. The provision for physical examination
and service of order are made separata sections of the Civil Practice Act.]

Rule 96. Order for examination of corporation. An order
for taking the deposition of a corporation party shall specify the
person to be examined and [the order to be made in respect
thereto] shall direct the examination of such persons and shall
direct the production of [such] the books and papers of the
corporation as to the contents of which an examination or inspec-
tion ts desired, and on such examination the books or papers, or
any part or parts thereof, may be offered and received in evidence
in addition to the use thereof by the witness to refresh his memory.

[Code § 872 last sentence, pt.]

ARTICLE 21

DEPOSITIONS TAKEN WITHOUT THE STATE
FOR USE WITHIN THE STATE

Rule 97. Service and settlement of interrogatories.

Rule 97. Service and settlement of interrogatories. JI[nter-
rogatories to be annexed to a commission [issued under article
second of title three, chapter nine, of the code of civil procedure]
to take testimony without the state shall be served within ten days
after the entry of the order allowing the commission. Cross-
interrogatories shall be served within ten days after the service
of the interrogatories unless a different time is fixed therefor by
the order allowing the commission. In ease a party shall fail
to serve such cross-interrogatories within the time limited there-
for, he shall be deemed to have waived his right to propound cross-
interrogatories to the witness to be examined under the commis-
sion. Either party [may], within two days after the service of
1416 Rerorr or Joiner Leaistarive COMMITTEE

the cross-interrogations or within two days after the time to
serve cross-interrogatories has expired, may serve upon the oppos
ing party a notice of settlement of the interrogatories and cross-
interrogatories before a justice of the court or county judge.
The time at which such interrogatories or cross-interrogatories
shall be noticed for settlement shall be not less than two nor more _
than ten days after the service of the notice. If neither party
serves such a notice within the time limited therefor, the inter-
rogatories and cross-interrogatories are to be deemed settled as
served and shall be so allowed without notice.

[General Rule of Practice 20.]

ARTICLE 22

DEPOSITIONS TAKEN WITHIN THE STATE FOR
USE WITHOUT THE STATE

Rule 98. Subpoena to compel attendance of witness to obtain
testimony and proceedings thereon.

Rule 98. Subpoena to compel attendance of witness to
obtain testimony and proceedings thereon. The petition pre
seribed by section [915 of the Code of Civil Procedure] three
hundred and twenty-eight of the Civil Practice Act must state
generally the. nature of the action or proceeding in which the
testimony is sought to be taken, and that the testimony of a wit-
ness is material to the issues presented in such action or proceed-
ing, and shall set forth the substance of, or have annexed thereto,
a copy of, the commission, order, notice, consent or other au-
thority under which the deposition is taken. In case of an ap-
plication for a subpoena to compel the production of books or
papers, the petition shall specify the particular books or papers
the production of which is sought, and show that. such books or
papers are in the possession of or under the control of the witness
and are material upon the issues presented in the action or special
proceeding in which the deposition of the witness is sought to he
taken. Unless the court or judge is satisfied that the application
is made in good faith to obtain testimony within sections [14
Ruies or Courr 1417

and 915 of the Code of Civil Procedure,] three hundred and
twenty-seven and three hundred and twenty-eight of the Civil
Practice Act, he shall deny the application. Where the subpoena
directs the production of books or papers, it shall specify the
particular books or papers to be produced, and shall specify whether
the witness is required to deliver sworn copies of such books or
papers to the commissioner, or to produce the original thereof and
deposit the same with the commissioner. This subpoena must be
served upon the witness at least two days, or in case of a subpoena
requiring the production of books or papers, at least five days
before the day on which the witness shall be commanded to appear.
A party to an action or proceeding in which a deposition is sought
to be taken or a witness subpoenaed to attend and give his
deposition may apply to the court to vacate or modify such
subpoena.

Upon proof by affidavit that a person to whom a subpoena was
issued has failed or refused to obey such subpoena; to be duly
sworn or affirmed; to testify or answer a question or questions
propounded to him; to produce a book or paper which he has been .
subpoenaed to produce; or to subscribe to his deposition when
correctly taken down, a justice of the supreme court or a county
judge shall grant an order requiring such person to show cause
before the supreme court, at a time and place specified, why he
should not appear; be sworn or affirmed; testify; answer a ques-
tion or questions propounded; produce a book or paper; or sub-
scribe to his deposition, as the case may be. Such affidavit shall
also set forth the nature of the action or special proceeding in
which the testimony is sought to be taken, and a copy of the
pleadings or other papers defining the issues in such action or
special proceeding, or the facts to be proved therein. Upon
the return of such order to show cause, the supreme court shall
upon such affidavit and upon the original petition, and upon such
other facts as shall appear, determine whether such person should
be required to appear: be sworn or affirmed; testify; answer the
question or questions propounded ; produce the book or paper; or
subscribe to his deposition, as the case may be, and may prescribe
such terms and conditions as shall seem proper. Upon proof of
a failure or refusal on the part of any person to comply with any
order of the court made upon such determination, the court or
judge shall make an order requiring such a person to show cause,
before it or him at a time and place therein specified, why such
person should not he punished for the offense as for a contempt.
1418 Report or Jornt Luaistative ComMirrer

Upon the return of the order to show cause the questions which
arise must be determined as upon a motion. If such failure or
refusal is established to the satisfaction of the court or judge
before whom the order to show cause is made returnable, the
court or judge shall enforce the order and prescribe the punish-
ment as in the case of a recalcitrant witness in the supreme court.

[General Rule of Practice 17.]

ARTICLE 23

PERPETUATION OF TESTIMONY IN REAL
PROPERTY ACTIONS

Rule 99. Petition to perpetuate testimony in real property
actions.

Rule 99. Petition to perpetuate testimony in real property
actions. [The] A person desiring to take a deposition and to per-
petuate testimony in any action or proceeding involving a question
as to title to real property in the state of New York as prescribed
in [this article] the Civil Practice Act, may present to a justice of
the supreme court a petition, duly verified, setting forth as
follows:

First. A description of the real property in relation to which
the petitioner desires testimony taken and perpetuated, the estate
of the petitioner therein, whether in fee or for life, or for a term of
years, and whether he holds as heir, devisee or purchaser, or as
trustee of an express trust.

Second. That the property at the date of the petition is and
for one year next preceding has been .in his possession or the
possession of himself and those from whom he derives title, either
as sole owner or as joint tenant or as tenant in common.

Third. A general statement of the facts as to which testimony
is to be taken and the cireumstanees which render it necessary
for the protection of the petitioner’s rights that the proposed
testimony should be perpetuated.

Fourth. The names and residences of the persons to be ex-
amined.

Fifth. The names and residences of persons having interests
which may he adversely affected hy the testimony songht to be
Rutges or Court 1419

taken, so far as such names and residences are within the knowl-
edge of the petitioner; or, where such names and residences can-
not be ascertained, a statement of the class of persons having
interests which may be so adversely affected.

Sixth. Any other fact necessary to show that the case comes
within the provisions of [this article] the Civil Practice Act
relating to such deposition.

[Code § 1688-e. Omitted by Board as covered by rule 224.]

ARTICLE 24
DISCOVERY AND INSPECTION

Rule 100. Admission of genuineness of paper.
101. Admission of facts.
102. Appheation for discovery.
103. Hearing of application; order.
104. Referee to superintend discovery or inspection.

Rule 100. Admission of genuineness of paper. The attorney
for a party [may], at any time before the trial, may exhibit to
the attorney for the adverse party, a paper material to the action
and request a written admission of its genuineness. If the ad-
mission is not given within four days after the request, and the
paper is proved or admitted on the trial, the expenses incurred
by the party exhibiting it in order to prove its genuineness must
be ascertained at the trial and paid by the party refusing the
admission, whatever the result of the cause, matter or issue may
be; unless it appears to the satisfaction of the court that there was
a good reason for the refusal.

[Code § 735, without change of substance. See Board’s rule 239, last two
sentences. ]

Rule 101. Admission of facts. Any party, by notice in writing,
at any time not later than ten days before the term or day for
which notice of trial has been given, may call on any other party
to admit, for the purposes of the cause, matter or issue only,
any specific fact or facts mentioned in such notice. In case of
refusal or neglect to admit the same within sia days after service
of such notice, or within such further time as may be allowed
1420 Reporr or Jornr Lecisuative ComMirrer

by the court or w judge, the expenses incurred in proving such
fact or facts must be ascertained at the trial and paid by the
party so neglecting or refusing, whatever the result of the cause,
matter or issue may be, unlesa at the trial or hearing the court
or a judge certify that the refusal to admit was reasonable, or
unless the court or a judge, at any time, shall order or direct
otherwise. Any admission made in pursuance of such notice ts
to be deemed to be made only for the purposes of the particular
cause, matter or issue, and not as an admission to be used against
the party on uny other occasion or in favor of any person other
than the party giving the notice. The court or a judge, at any
time, may allow any party to amend or withdraw any admission
so made on such terms as may be just.

{New. Substance of English Practice, order 32, rule 4. See Board’s rule

239. The rule in substance is recommended by the Special Practice Commit-
tee of the New York County Lawyers’ Association. See Report of May 3,

1917, p. 15, § 31, of Practice Act.]

Rule 102. Application for discovery. A party to an action
may apply to the court for an order requiring an adverse party
to show cause why he should not be compelled to produce and dts-
cover, or to give an inspection and copy, or permission to take a
copy or photograph of a book, document or other paper, or to
make discovery of any article or property in his possession or
under his control, relating to the merits of the action or of the
defense therein. Such order to show cause shall be granted upon
an affidavit stating that the books, papers, articles, property and
documents whereof discovery or inspection is sought are not in
the possession or under the control of the party applying therefor
and, of his own knowledge or wpon information and belief, are
in the possession or under the control of the party against whom
discovery or inspection is sought, or his agent or attorney.

[Substitute for Code § 805, except last clause; General Rule of Practice
15 and the first sentence of Short Practice Act, § 25, proposed by the New
York County Lawyers’ Association. The general effect of the rule is to shift
to the adverse party the burden of showing that the discovery or inspection
is not necessary, instead of requiring the party applying for the order to

show the necessity in the first instance. Code § 806 is omitted in view of
the change in practice as outlined in the preceding sentence. ]

Rule 103. Hearing of application; order. Upon the return
of such [the] order to show cause, the court shal/ [may] make
such an order with respect to the discovery or inspection praved
for as justice requires. The order for discovery or inspection
Ruxzs or Court 1421

shall specify the mode in which it is to be made, which may be
etther by requiring the party to deliver sworn copies of the mat-
ters to be discovered, or to allow an inspection with copy or by
requiring him to produce and deposit the same with the clerk,
unless otherwise directed in the order. The order shall specify
also the time within which the discovery or inspection is to be
made, and when papers, articles or property are required to be
deposited or inspected; the order shall specify the time the deposit
or the opportunity for inspection shall continue. The order may
direct a stay of all other proceedings in the action, either in whole
or in part, until such order shall have been complied with or
vacated.

[Supersedes Code § 807, General Rule of Practice 16 and Short Practice
Act proposed by County Lawyers’ Association, § 25.]!

Rule 104. Referee to superintend discovery or inspection.
[Upon the return of the order to show cause, the court may make
such an order, with respect to the discovery or inspection prayed
for, as justice requires.] Where [either] discovery or inspec-
tion is directed, a referee may be appointed by the order, to direct
and superintend it, whose certificate, unless set aside by the court,
is presumptive, and, except in proceedings for contempt, con-
clusive evidence of compliance or non-compliance with the terms
of the order. [A fixed sum, not exceeding twenty dollars, may be
added to the costs of the motion, for the fees of the referee.]

[Code § 807, in part. Last sentence omitted, as covered under “ costs.”]

ARTICLE 25
NOTICE OF TRIAL AND OF ISSUE

Rule 105. Notice of trial.
106. Note of issue.
107. Only one notice of trial or note of issue required.

Rule 105. Notice of trial. At any time after the joinder of
issue and at least fourteen days before the commencement of
the term, or the opening of an adjourned term, either party may
serve a notice of trial.

[Code § 977, first sentence, without change, except the addition of the
reference to an adjourned term, which is inserted to cover Code § 34.]
1422 Revorr or Jorinv Lugistarive Commirrer

Rule 106. Note of issue. A [The] party who has served a
[serving the] notice of trial shall [must] file with the clerk a
note of issue stating the title of the action, the names of the at-
torneys, the time when the last pleading was served, the nature
of the issue, whether of fact or of law, and, if an issue of fact,
whether it is triable by a jury or by the court without a jury,
and the particular nature of the same and the object of the action.
The note of issue shall [must] be filed at least twelve days before
the commencement of the term. The clerk thereupon must [there-
upon] enter the cause upon the calendar according to the date of
issue. The clerk must prepare the calendar and have the neces-
sary copies ready for distribution at least five days before the
commencement of the term.

[Code § 977, secon], third, fourth and fifth sentences, without change of
substance. ]

Rule 107. Only one notice of trial or note of issue required.
Where a party has served a notice of trial and filed a note of
issue for a term at which the case is not tried, it is not necessary
for him to serve a new notice of trial [must] for a succeeding
or adjourned term, and the action shall[[, or file a new note of
issue,J remain on the calendar until it is disposed of, but the
clerk shall strike the case from the calendar upon the written
request of both parties.

[Code § 977, last part, now applicable to 13 counties, made general. The

last clause is new, from Board rule 246. The reference to an “adjourned
term” is to cover Code § 34.]

ARTICLE 26
EVIDENCE

Rule 108. Production of books and papers by library associations,
public departments and officers,
109. Application far order to produce prisoner as a witness.

Rule 108. Production of books and papers by library associa-
tions, public departments and officers. No subpoenas duces
tecum requiring a library association or corporation, a public offi-
cer, adepartment of a municipal corporation, or other public officer
Rures or Court 1423

or department, to produce on the trial of an action or special pro-
ceeding before a court or referee, books, papers or other documents
or writings in its or his possession, shall be issued except by a jus-
tice of the supreme court in the district in which the library or de-
partment is located or the public officer is employed, or a judge of
the court in which the action or speciat proceeding is pending, and
except upon one day's notice to the library, officer, corporation or
head of the department having possession of the books, papers or
other documents or writings and also to the opposing party or his
attorney. The justice or the judge to whom the application is
made shall not require the production of such books, papers or other
documents or writings before a court or referee, when a stipulation
between the attorneys or a copy thereof, duly verified, will serve, in
his opinion, [serve] the purpose of such production, and he may
impose such other conditions as, [may] in his opinion, may be
reasonable. Upon the refusal of a party to such an application to
make such stipulation when required so to do, the justice or the
judge to whom the application for a subpoena duces tecum is made
may impose upon such party the actual cost or expense incurred
in producing the books, papers or other documents or writings in
accordance with the subpoena, in addition to the fees now required
by: law upon the service of a subpoena.

[General Rule of Practice 9.]

Rule 109. Application for order to produce prisoner as a
witness. Ai upplication for [a writ] an order, made as pre
scribed in [either of the foregoing sections of this article] section
four hundred and thirty, four hundred and thirty-one, four hun-
dred and thirty-two or four hundred and thirty-three of the Civil
Practice Act, to bring a prisoner before the court as a witness,
must be verified by affidavit and must state:

1. The title and nature of the action or special proceeding in
regard to which the testimony of the prisoner is desired; and the
court, or body in or before which, or the officer before whom, it
is pending.

2. That the testimony of the prisoner is material and neces-
sary to the applicant on the trial of the action or the hearing of
the special proceeding, as he is advised by counsel and verily
believes.

3. The place of confinement of the prisoner,
1424

Report or Joinr LeaistativeE CoMMITTEE

4. Whether the prisoner is or is not confined under a sentence
for a felony.

But where the attorney-general or district-attorney makes the
application, he need not swear to the advice of counsel.

[Code § 2012, without change.]

Rule 110.
111.
112.
118.
114.
115.
116.
11%:
118.
119.

120.
121.

122.
128.
124,

ARTICLE 27
TRIAL

TRIAL GENERALLY

Settlement of issues for trial by jury.

Terms at which issues of fact triable.

Issues on calendar, arrangement and disposition.
Place on calendar after amendment or new pleading.
Moving causes for trial or argument.

Papers to be furnished on trial.

Opening and closing speeches and examinations.
Variance between pleading and proof.

Copy of proceeding for justice.

Stipulation for trial elsewhere than at court house.

TRIAL BY JURY

Jurors may be excluded from court room,
Entry of verdict.

TRIAL BY REFEREE.

Referee to be sworn.
Qualifications of a referee.
Deposit by referee.

Rule 110. Settlement of issues for trial by jury. [n all actions
where either party is entitled to have an issue or issues of fact
settled for trial by a jury, either as a matter of right or by leave
of the court if either party desires such a trial, the party, [must]
within twenty days after issue joined, must give notice of motion
Rures or Court 1425

that all the issues or one or more specific issues be so tried. If
such motion is not made within such time, the right to a trial
by jury is waived. With the notice of motion shall be served a
copy of the questions of fact proposed to be submitted to the jury
for trial, in proper form to be incorporated in the order, and the
court or inde may settle the issues, or may refer it to a referee to
settle them. Such issues must be settled in the form prescribed
in sections [823 and 970 of the Code of Civil Procedure] four
hundred and forty-four and four hundred ard forty-five of the
Civil Practice Act.

[General Rule of Practice 31, second, third and fourth sentences. The
above rule so far as it relates to waiver of jury trial has been held not to
apply to divorce actions. The rule is submitted in its entirety for considera-
tion in revision by the courts.]

Rule 111. Terms at which issues of fact triable. In the su-
preme court, an issue of fact triable by a jury must be tried at
a trial term thereof, and an issue of fact triable by the court may
be tried at a trial term or a special term of the supreme court
as prescribed in [the general] rules [or practice. An issue of
law may be brought on and tried at any term of court as a con-
tested motion]. '

[Last two sentences of Code § 976. The last sentence is omitted here and
covered under “ Pleadings.” The Board omits the last two sentences of Code

§ 976, as “being a matter of calendar regulation for each department.” See
Board’s note 338.]

Rule 112. Issues on calendar, arrangement and disposition.
The issues on the calendar must be arranged by the clerk in the
following order:

1. Issues of fact.

2. Issues of law.

[Where a jury is in attendance.] The issues must be dis-
posed of in the same order, unless[[, for the convenience of parties,
or the dispatch of business,J the judge holding the term shall
[otherwise directs] direct otherwise.

[Code § 978, amended so as to clearly state the rule that a judge holding
a term can control the calendar. This section as amended would supersede
Code § 979 and give to a court the right to fix the order of t1ial as he secs
fit. See Code §§ 965, 967, 973. Code § 979 has been omitted in view of the
broadening of the language of § 978 so that a judge holding a term may

fix the order of disposition of causes, leaving this matter to the discretion
of the court, as it really is now under present Code provisions and practice.]
1426 Rerorr or Jornt Learstative ComMirrer

Rule 113. Place on calendar after amendment or new plead-
ing. \\Vhen amending a pleading or permitting the service of an
amended or supplemental pleading in a case which ig on the
general calendar of issues of fact, the court may direct that the
ease retain the place upon such calendar which it occupied before
the amendment or new pleading was allowed and that the pro-
ceedings had upon the amended or supplemental pleadings shall
not affect the place of the case upon such calendar or render neces-
sary the service of a new notice of trial.

[Code § 723, last sentence. Remainder of section covered under “ Mistakes.”
This provision was omitted by the Board as unnecessary. ]

Rule 114. Moving causes for trial or argument. Every cause
placed upon the calendar of the trial term or special term for
the trial of equity cases shall be moved for argument or trial when
reached in its order and shall not be reserved or put over except
by the consent of the court unless otherwise permitted by special
rule, and, if passed without being so reserved or put over, it shall
be entered on all subsequent calendars as of date when passed,
and no term fee shall be taxed thereon for any subsequent term.

[General Rule of Practice 36, last sentence.]

Rule 115. Papers to be furnished on trial. Where the issue
is brought to trial by the plaintiff, he must furnish the court with
copies of the summons and pleadings, and of the offer, if any has
been made. Where the issue is brought to trial by the defendant,
and the plaintiff does not furnish those papers, they must be
furnished by the defendant.

It shall be the duty of the attorney by whom the copy of the
pleadings shall be furnished for the use of a court on trial to
plainly designate on each pleading the part or parts thereof
claimed to be admitted or controverted by the sueceeding pleadings.

[First two sentences are Code § 981. Last sentence is the last sentence
of General Rule of Practice 19. See Board’s proposed rule 253.]

Rule 116. Opening and closing speeches and examinations.
[In the trial of civil causes unless the justice presiding or the
referee shall otherwise direct,] Unless otherwise directed, each
party shall open his case before any evidence is introduced and
[except by special permission of the court,] no other opening
Ruuus or Court 1427

by either party shall [thereafter]. be permitted; [on the trial of
issues of fact] one counsel only on each side shall examine or
cross-examine a witness; [who shall not repeat the answer or
answers of such witness at the time he shall be under examina-
tion.J one counsel only on each side shall sum up [the cause]
and he shall not occupy more than one hour, and the testimony
if taken down in writing shall be written by some person other
than the examining counsel[[; but the judge who holds the court
may otherwise order, or dispense with this requirement. While
addressing the court, examining witnesses or summing up, counsel

shall stand].

[General Rule of Practice 29, rewritten. See Board’s proposed rule 255.]

Rule 117. Variance between pleading and proof. If a party
insists that he has been misled by « variance between an allega-
tion in a pleading and the proof, that fact and the particulars
in which he has been misled must be proved to the satisfaction of
the court. Thereupon the court [may], in its discretion, may
order the pleading to be amended, upon such terms as it deems
just.

[Code § 539, second sentence. See Board’s proposed rule 256.]

Rule 118. Copy of proceedings for justice. If the justice
presiding requires a copy of any proceedings written out at length
from stenographie notes, he may make an order directing one-
half of the stenographer’s fees therefor to be paid by each of the
parties to the action or special proceeding at the rate of ten cents
for each folio so written out, and may enforce payment thereof.
Any such copy shall be accessible to and may be examined by,
any of the counsel in the cause. If there are two or more parties
on the same side, the order may direct either of them to pay the
sum payable by their side for the stenographer’s fees, or it may
apportion the payment thereof among them as the justice deems
just.

[Code § 251, without change. See Board’s proposed judiciary law, § 31-i,
which is identical.]

- Rule 119. Stipulation for trial elsewhere than at court house.
A stipulation that an action or special proceeding pending in a
court of record shall be tried or heard and determined elsewhere
1428 Rerort or Joint Leaisiative CoMMItTrEer

than at the court house must specify the place of trial or hearing
and must be filed in the office of the clerk, and the trial or hearing
must be brought on upon the usual notice unless otherwise pro-
vided in the stipulation.

[Code § 37, last sentence, without change. ‘See Board’s proposed rule 81.]

Rule 120. Jurors may be excluded from court room. [A
trial by a jury, of an issue of fact, joined in a civil action, in a
court of record, must be had, as prescribed in this chapter; ex-
cept in a case where it is otherwise specially prescribed by law.]
The court may[[, upon the application of either party,] exclude
from the court room the jurors sitting in an action during the
argument of a motion for non-suit, dismissal of the complaint, or
direction of a verdict, or the argument of a question concerning
admission or exclusion of evidence.

[Code § 1190. The first sentence has been omitted as unnecessary in view
of the language of Code § 965, as rewritten. See under “ Trial Generally.”

The new matter is intended to cover additional cases where the court may
desire to exclude trial jurors. See Board’s proposed rule 276.]

Rule 121. Entry of verdict. When the jury renders a verdict,
or finds upon one or more specific questions of fact, stated under
the direction of the court, the clerk must make an entry in his
minutes specifying the time and place of the trial; the names of
the jurors and witnesses ; the verdict, or the questions and findings
thereupon, as the case requires; and the direction, if any, which
the court gives with respect to the subsequent proceedings. [Upon
the application of the party in whose favor a general verdict is
rendered, the clerk must enter judgment, in conformity to the
verdict, unless a different direction is given by the court, or it is
otherwise specially prescribed by law.]

[Code § 1189, without change, except the omission of the last sentence
which is covered under “Judgments.” See Board’s proposed rule 284 which
is identical.]

Rule 122. Referee to be sworn. A referee, appointed as pre-
scribed in [either of the foregoing sections of this title] article
thirty-five, must[[, before proceeding to hear the testimony,]
be sworn, before proceeding to hear the testimony, faithfully and
fairly to try the issues, or to determine the question referred to
him, as the case requires, and to make a just and true report
Russ or Court 1429

according to the best of his understanding. The oath may be
administered by an officer specified in section [842 of this act]
three hundred and seventy-two of the Civil Practice Act. [But
w] Where all the parties whose interest will be affected by the
result are of age, and present in person or by attorney, they may
[expressly] waive the referee’s oath. The waiver may be made
by written stipulation, or orally. If it is oral, it must be entered
in the referee’s minutes.

[Code § 1016, without change. This section was omitted by the Board
“as sufficiently covered by the text” of rule 34. See Board’s note 100.]

Rule 123. Qualifications of a referee. A referee appointed
by the court, must be free from all just objection, and no person
shall be so appointed, to whom all the parties object, except in
an action to annul a marriage or for a divorce or a separation.
A judge cannot be appointed a referee in an action brought in a
court of which he is a judge except by the written consent of
the parties, and, in that case, he cannot receive any compensation
as referee. No person shall be appointed a [commissioner of
estimate and appraisement in condemnation or street opening
proceedings, or] referee in the first or second judicial districts
in an action or special proceeding who holds the position of clerk,
private secretary, secretary or stenographer to any justice or judge
of a court of record, or to any board of justices or judges of such
a court in any department where such justice or judge is engaged
in the discharge of the duties of his office. Hacept in a case pro-
vided for by [section 1011 of the code of civil procedure] section
four hundred and seventy-nine of the Civil Practice Act no person,
unless he is an attorney of the court in good standing, shall be
appointed sole referee for any purpose im any pending action or
proceeding. No person shall be appointed a referee who is the
partner or clerk of the attorney or counsel of the party in whose
behalf such application for such appointment is made or who ts in
any way connected im business with such attorney or counsel, or
who occupies the same office with such. attorney or counsel.

[Code § 1024, without change, except the omission of reference to com-
missioner of estimate and appraisement in condemnation or street opening
proceedings. See Board’s proposed rule 269, also judiciary law § 241 and
real property law § 604. As to commissioner in condemnation proceedings

the omitted matter is covered by the condemnation law. As to com-
missioner in street opening proceedings in the first and second judicial
1430 Rerort or Jornt LeaistativeE CoMMItTTER

districts, the matter can be sufficiently covered by inserting a new clause
or section in the Greater New York charter. This reference will not be quite
as broad as the code section, as the charter section would not cover Nassau
or Suffolk counties, but it is not thought that this variance from the code
section is material. The first and second judicial districts embrace the fol-
lowing counties: New York, Bronx, Kings, Queens, Richmond, Nassau and
Suffolk. The new matter is taken from General Rule of Practice 79. See
Board’s proposed rule 269 covering this subject. The Board in rule 269
provides that a referee in all cases must be an attorney. General Rule of
Practice 79 does not so provide but permits the appointment of a referee
who is not an attorney where both parties consent to the reference (sce
Code § 1011) and also where there are several referees (see reference in rule
to “sole” referee). It seems best to retain the provisions of General Rule
79 as they now exist.]

Rule 124. Deposit by referee. All moneys received by a
referee appointed to sell property shall be [forthwith] deposited
forthwith by the referee in his own name as referee in a bank or
trust company authorized to receive on deposit court funds, and,
if there be no such depository in the city or town in which the
referee resides, then he shall deposit such moneys forthwith in a
depository located in an adjoining city or town or with the county
treasurer of the county in which the action or special proceeding
is pending; and such moneys so deposited shall not be withdrawn
except as directed by the judgment or order under which the
deposit is made or upon the order of the court.

{General rule of practice 79, part. See Board’s proposed rule 271. The
words “as directed by the judgment or order under which the deposit is
made or” are now in General rule 79 and should be retained as in certain
cases such a direction in the original order would obviate the necessity of.a
further order. General rule 79 relates only to referee appointed to sell “ real

property.” The rule has been broadened here to cover referees appointed
to sell any property, real or personal.]

ARTICLE 28
JUDGMENT

JUDGMENT GENERALLY
Rule 125. Form of judgment generally.
126. Judgment against dead person.
JUDGMENT BY DEFAULT

127, Final judgment upon: decision or report awarding
interloculory judgment.
Rule 128.
129.
1380.
131.

132.
133.

134.
135.

136.
157,

138.
139.

140.

141.
142.

143.

Rugs or Court 1431

Interlocutory and final judgment upon default or
decision.

Notice to defendant of assessment by clerk.

Proof to be filed on application to court upon default.

Notice to defendant on application to the court for
judgment.

Application for judgment on failure to answer.

Proceedings upon application for default judgment
where service without the state or not personally.

JUDGMENT AFTER TRIAL

Judgment after jury trial of specific questions of fact.
Judgment after trial of issues of law and issues of
fact.

Judgment upon issue of law.

Powers of court on application after decision of issues
of law.

Judgment after trial of whole issue of fact.

Judgment after reference to determine specific ques-
tions of fact.

Review of interlocutory reference or inquisition.

ENTRY AND DOCKET OF JUDGMENT

Entry of judgment.
Judement-roll; regulations affecting.

STAY OF JUDGMENT

Stay of judgment and enforcement.

SATISFACTION, ASSIGNMENT AND CANCELLATION

144.

Satisfaction of judgment wholly or partly.

Rule 125. Form of judgment generally. Judgment may be
entered in such form as may he required by the nature of the
case and by the recovery or relief awarded. In drawing a judg-
ment, neither the complaint, answer or other pleadings nor any
part thereof nor the report of a referee nor any other prior pro-
ceeding, shall be recited or stated in the judgment but it shall
hegin in substance as follows: (Title of cause). “ This cause
having been tried and a verdict (report or decision as the case may
14382 Report or Joint Leaistative ComMMITTEE

be) having been rendered, it is adjudged:’ (Here insert the
judgment).

{Board’s proposed rule 291. See Board’s note 378.

Code § 1203 omitted as unnecessary. Also omitted by the Board. The
first sentence is now obsolete and the second is now covered by § 505 of the
Committee’s proposed Civil Practice Act. See also Committee’s proposed
rule 131.

Code § 777, omitted as unnecessary. Covered sufficiently by the rule pro-

posed by the Committee, tentatively numbered rule 19. Also omitted by
the Board.]

Rule 126, Judgment against dead person. Where a judgment
for a sum of money or directing the payment of money is entered
against a party after his death, [in a case where it may be so
taken by special provision of law, a memorandum of the party’s
death must be entered with the judgment in the judgment book,
indorsed on the judgment-roll, and noted on the margin of the
docket of the judgment.

[Code § 1210, first sentence. The bracketed words are unnecessary. See
Board’s proposed rule 293 containing this sentence. ]

Rule 127. Final judgment upon decision or report awarding
interlocutory judgment. In a case not otherwise provided for
[in the foregoing sections of this article], where the decision
upon a trial by the court, without a jury, or the report upon the
trial by a referee, directs an interlocutory judgment to be entered,
and the party afterwards becomes entitled to.a final judgment,
an application for the latter may be made as upon a motion.
And where a judgment requires the appointment of a referee
to do any act thereunder, the referee must be appointed hy the
judgment, or by the court, upon motion, except as otherwise pre-
scribed in the next [section] rule.

[Code § 1230. Omitted by Board in view of suggested change in practice.
See Board’s note 377.]

Rule 128. Interlocutory and final judgment upon default
or decision. Jn an action triable by the court, an interlocutory
judgment rendered upon a default in appearing or pleading, or
pursuant to the direction contained in a decision or report, may
state the substance of the final judgment to which the party will
be entitled. It may [also] direct also that the final judgment
be settled by a judge or a referee. In that ease, final judgment
Ruxes or Courr 1433

shall not be entered until a settlement thereof, subscribed by the
judge or referee, is filed. Where an interlocutory judgment
awards costs, they may be awarded generally without specifying
the amount thereof. Where the final judgment is directed to be
settled, and the costs have not been taxed when the settlement
thereof is filed, a blank for the amount of the costs must be left
in the settlement; and the costs must be taxed, and the blank
filled up accordingly, by the clerk, when the final judgment is
entered.

[Code § 1231. Omitted by Board in view of suggested change in practice.
See Board’s note 37.]

Rule 129. Notice to defendant of assessment by clerk. Jf
a defendant against whom judgment [is] may be taken without
application to the court [pursuant to the foregoing sections of
this article, is entitled to notice, as follows:

1. If he] has appeared generally but has made default in
pleading, he is entitled to at least five day’s notice of the time
and place of an assessment by the clerk[[, and to at least eight
days’ notice of the time and place of an application to the court
for judgment].

[Code § 1219 part The portion of subd. 1 providing for an eight day’s
notice has been omitted but is covered in section relating to judgment upon

application to the court. See Board’s rule 300 subd. 5, covering the part
stated here, but omitting the specified notice of five days.]

Rule 130. Proof to be filed on application to court upon
default. Upon [the] an application by a plaintiff to a court or
a judge for judqment by default, he must file, if the default was
in appearing, proof of service of the summons, or, if the default
was in pleading, proof of appearance, and also, if a copy of the
complaint was demanded, proof of service thereof upon the de-
fendant’s attorney, and in cither case proof by affidavit of the
default which entitles him to judgment.

[Code § 1214. Second sentence. See Board’s rule 301, subd. 2, same in
substance. ]

Rule 131. Notice to defendant on application to the court
for judgment. 7. If a defendant against whom judgment [is]
may be taken upon an application to the court or a judge [pur-
suant to the foregoing sections of this article, is entitled to notice,
as follows:
1434 Revorr or Jorunry Lecistatrive CoMMITTED

1. If he} bas appeared generally but has made default in
pleading, he is entitled to [at least five days’ notice of the time
and place of an assessment by the clerk, and] at least [eight]
five days’ notice of the time and place of [an] the application
{to the court] for judgment.

2. In a case where an application for judgment must be made
to the court or a judge, the defendant may serve upon the plain-
tiff’s attorney at any time before the application for judgment a
written demand of notice of the execution of any reference [or],
writ of inquiry, or of an assessment by a jury, which may be
granted upon the application. Such a demand is not an appear-
ance in the action. [It must be subscribed by the defendant,
in person, or by an attorney or agent who must add to his signature
his office address with the particulars, prescribed in section 417 of
this act, concerning the office address of the plaintiffs attorney. ]
Thereupon at least five days’ notice of the time and place of
the execution of the reference, or writ of inquiry, or of the assess-
ment by a jury, must be given to the defendant by service thereof
upon the person whose name is subscribed to the demand in the
manner prescribed [in this act] for service of a paper upon an
attorney in an action.

[Subd. 1 is Code § 1219 part. The portion of section 1219, subd. 1 providing
for a five days’ notice has been omitted but is covered in section relating to
notice of assessment by clerk. ‘See Board’s rule 301.

Subd. 2 is Code § 1219, subd. 2. The bracketed portion is omitted as
covered by general provisions. See Board’s rule 301, subd. 5, covering the
first sentence and omitting the last two sentences. The references to “ assess-
ments by a jury” are inserted because under a section of the Civil Practice

Act the court is given power to ascertain the damage by a jury in court as
well as by a writ of inquiry.]

Rule 132. Application for judgment on failure to answer.
When the plaintiff in an action in the supreme court is entitled
to judgment upon the failure of the defendant to answer the com-
plaint, and the relief demanded requires application to be made
to the court, such application may be made at any special term
in the district embracing the county in which the action is triable,
or, except in the first district, in an adjoining county. Such
application, except in the first judicial district, may [also] be
made also at a trial term in the county in which the action is tri-
able. When a reference or writ of inquiry shall be ordered, the
same shall he executed in the county in which the action is triable,
Ruies or Courr 1435

unless the court shall [otherwise order] direct otherwise. In the
first judicial district, every motion or application for an order or
judgment where notice is necessary, must be made to the special
term for the hearing of motions, and, where notice is not necessary,
to the special term for the transaction of ex parte business, except
where other express provision is [expressly] made by law, or the
general or special rules of practice. In the county of Kings all such
appleations shall be made at the special term for the hearing of
motions. Any order or judgment granted in violation of this
provision shall be vacated by the special term, at which the ap-
plication should have been made, or by the appellate division
of the supreme court, and no order or judgment granted in viola-
tion of this rule shall be entered by the clerk.

[General Rule of Practice 26.]

Rule 133. Proceedings upon application for default judg-
ment where service without the state or not personally. The
following regulations shall apply to an application to a court or
a judge thereof for the judgment demanded in a complaint where
the summons was served upon the defendant ‘without the state or
otherwise than personally, and the defendant ts in default:

1. Upon such an application, [he] the plaintiff must file proof
that the service is complete, and proof by affidavit of the de
fendant’s default.

2. In an action for a sum of money only, specified in sub-
division two of section five hundred and eight of the Cwil Practice
Act, if the defendant is a non-resident or a foreign corporation, the
plaintiff must produce and file proof by affidavit that a warrant
of attachment granted in the action has been levied upon the
property of the defendant and a description of the property so
attached, verified by affidavit with a statement of the value theriof,
according to the inventory.

3. The court or [a] judge [or justice thereof] must require
proof of the cause of action set forth in the complaint to be made,
either before such court or such judge [or justice], or before a
referee appointed for that purpose, except that where the action is
brought to recover damages for a personal injury, or an injury
to property, the damages must be ascertained by means of a writ
of inquiry or by a jury in court as prescribed in [the last] section
five hundred and five of the Civil Practice Act.
1436 Rerorr or Joint LecistativeE CoMMITTER

4. If the defendant is a non-resident, or a foreign corporation,
the court or [a] judge [or justice] to whom such application is
made, must require the plaintiff or his agent or attorney to be
examined on oath respecting any payments to the plaintiff or to
any one for his use on account of his demand, and must render the
judgment to which the plaintiff is entitled.

5. [But] Before rendering judgment, the court or [a] judge
[or justice thereof, to whom the application is made, may[[, in
any case in its, or their discretion,] require the plaintiff in any
case to file an undertaking to abide the order of the court touching
the restitution of any estate or effects which may be directed by
the judgment to be transferred or delivered, or the restitution of
any money that may be collected under or by virtue of the judg-
ment in case the defendant or his representative applies and is
admitted to defend the action, and succeeds in his defense.

[Subds. 1, 3, 4, 5 are Code § 1216, all except first sentence which has been
retained as part of § 508 of the proposed Civil Practice Act. The new matter
in the opening pargarph of rule is from the first sentence of Code § 1216.

See Board’s rule 304, subds. 2 and 4. Subd. 2 covers all of Code § 1217,
except such as has been covered elsewhere.]

Rule 134. Judgment after jury trial of specific questions of
fact. In an action triable by the court, where one or more specific
questions of fact arising upon the issues have been tried by a
jury, judgment may be taken upon the application of either party
as follows:

1. If all the issues of fact in the action are determined by the
findings of the jury, or the remaining issues of fact have been
determined by the decision of the court, or the report of a referee,
an application for judgment upon the whole issue may be made
as upon a motion.

2. If one or more issues of fact remain to he tried, judgment
may be rendered upon the whole issue at the term of the court
where, or by direction of the referee by whom, they are tried.

[Code § 1225 without change. Omitted by Board as covered by rule 309.]

Rule 135. Judgment after trial of issues of law and issues of
fact. Where one or more issues of law and one or more issues of
fact arise in the same action and all the issues have been tried,
final judgment upon the whole issue must be taken as follows:

1. Where an application must be made to the court for judg-
ment upon the issue last tried, the application must be for judg
Russ or Court 1437

ment upon the whole issue, and judgment must be rendered
accordingly.

2. Where the action is triable by a jury and the issue last tried
is tried at a term of the court, the application for judgment upon
the whole issue may be entertained, in the discretion of the court,
at that term and with or without notice; if. not so entertained, it
must be heard as a motion.

3. Where the issue last tried is tried before a referee, his report
must award the proper judgment upon the whole issue, unless
otherwise prescribed in the order of reference.

{Code § 1221. Omitted by Board as covered by rule 309.]

Rule 136, Judgment upon issue of law. Final judgment upon
an issue of law, where no issue of fact remains to be tried, and
final judgment has not been directed as prescribed in section
[ten hundred and twenty-one of this act] four hundred and fifty-
six of the Cwil Practice Act, may be entered upon applicatioin to
the court or by the clerk in an action specified in section [four
hundred and twenty of this act] five hundred of said act.

[Code § 1222. The Board omitted the section in view of the change in
practice. See note 377.]

Rule 137. Powers of court on application after decision
of issues of law. Upon an application by either party to the
court for final judgment after the decision of an issue of law, as
prescribed in the last two rules [sections], the court has the
powers specified in [section 1215 of this act] five hundred and
five of the Civil Practice Act, upon an application for judgment
by the plaintiff. [Where final judgment may be awarded in a
referee’s report, as prescribed in section twelve hundred and
twenty-one of this act, the referee may make a computation, or
an assessment, or take an account, or proof of a fact, for the
purpose of enabling him to award the proper judgment, or
enabling the court to carry it into effect; and he may ascertain
and fix the damages, as a jury may do, upon the execution of a
writ of inquiry.J

[Code § 1223 without change except the omission of the last sentence which
has been covered elsewhere. ]

Rule 138. Judgment after triat of whole issue of fact.
[Where the whole issue is an issue of fact, which was tried hy a
1438 Reporr or Join LuaiscativeE CoMMITTEE

referee, the report stands as a decision of the court.J Except
where [Lit is]} otherwise expressly prescribed by law, judgment
upon [such] a report of a referee after a trial by the referee of
the whole issue of fact, or upon the decision of the court upon the
trial of the whole issue of fact without a jury, may be entered
by the clerk, as directed therein, upon filing the decision or report.

[Code § 1228, except the first sentence which is covered under Reference.

The new matter in the last sentence is taken from the first sentence. The
Board omitted the last sentence as covered by rule 309.]

Rule 139. Judgment after reference to determine specific
questions of fact. Where a reference has been made to report
upon one or more specific questions of fact arising upon the issue,
and the remaining issues have been tried, judgment [must] may
be taken upon the application of either party as prescribed in
[section 1221 of this act] rule one hundred and thirty-five.

[Code § 1226 without change except the word “must” changed to “may”
to conform with other sections preceding. The Board omitted this section as
covered by rule 309.]

Rule 140. Review of interlocutory reference or inquisition.
Where a reference or writ of inquiry, directed as prescribed in
section [1015] four hundred and eighty-two, or section [1215
of this act] five hundred and five of the Civil Practice Act, has
been executed, either party mav apply for an order directing a new
hearing or a new writ of inquiry, upon proof bv affidavit that
error was committed to his prejudice upon the hearing, or in the
report, or upon the execution of the writ, or in the inquisition.
In a proper case, the application may be granted after judgment
has been entered. In that case, the judgment mav be set aside,
either then or after the new hearing or the exceution of the new
writ,.as justice requires.

[Code § 1232. Omitted by the Board as covered by rule 373. See note
463.]

Ruie 141. Entry of judgment generally. [Every interlocu-
tory judgment or final] .f judgment shall he signed by the clerk
and filed in his office only during office hours, and such signing and
filing shall constitute the entry of the judgment. Judgment may
be entered in term or vacation. The clerk [shall], in addition to
the docket-hooks required to be kept by law, shall keep a book
Ruues or Court 1439

styled the “ judgment-book,” in which he shall record all judg-
ments entered in his office,

[First and last sentences are Code § 1236. The second sentence is Code
§ 1202. The new matter in the first sentence “ only during office hours” is
taken from General Rule of Practice 8. See Board’s rule 315 for the first
sentence of this section. The last sentence was omitted by the Board as
covered by the text of county law § 174, but it will be noted that section
1236 provides for a ‘“ judgment ” book in addition to the docket provided for

in Code § 1245 (proposed county law § 174). The ‘Board omitted section
1202 as covered by rule 292.]

Rule 142, Judgment-roll; regulations affecting. The clerk,
upon entering final judgment, must immediately file the judg-
ment-roll, and the following regulations shall apply thereto:
[The judgment-roll must] 7. [¢ shall be prepared and furnished
to the clerk by the attorney for the party at whose instance the
final judgment is entered, except that the clerk must attach
thereto the necessary original papers on file, but the clerk [may],
at his option, may make up the entire judgment-roll. [which must]

2. It shall consist, except where other special provision is
[otherwise] made by law, of the following papers: the summons ;
the pleadings, or copies thereof; admissions; the final judgment,
and the interlocutory judgment, if any, or copies thereof; and
each paper on file, or a copy thereof, and a copy of each order,
which in any way involves the merits, or necessarily affects the
judgment.

3. If judgment is taken by default, the judgment-roll must
[also] contain also the papers required to be filed, upon so taking
judgment, or upon making application therefor, together with
any report, decision or writ of inquiry, and return thereto.

4. If judgment is taken after a trial, the judgment-roll must
contain the verdict, report, or decision, each offer, if any, made
as prescribed in [this act] the (iril Practice Act, and the excep-
tions or case then on file.

5. Where judgment of affirmance is rendered upon [the] an
appeal to the appellate division of the supreme court, the judg-
ment roll consists of a copy of the judgment, annexed to the
papers upon which the appeal was heard.

6. Upon an appeal to the court of appeals from a judgment or
order of the appellate division of the supreme court, the opinion
of the appellate division, if any, shall[, for the purposes of the
1440 Reporr or Joiny Leaisinative ComMirrer

appeal, be deemed, for the purposes of the appeal, to be a part
ot the judgment-roll or appeal papers.

7. Where, after an «ppeal, subsequent proceedings are taken at
the special term or trial term before the entry of final judgment,
the judgment-roll must [also] contain also the proper papers
relating thereto.

8. The clerk must make a minute, upon the back of each judg-
ment-roll filed in his office, of the time of filing it, specifying the
year, month, day, hour, and minute. [A proceeding to enforce
or collect a final judgment, cannot be taken, until the judgment-
roll is filed.] -

[Subdivision 1 is Code § 1238. See Board’s rule 319, subdivision 1,
identical. Subdivision 2 is last part of first sentence of Code § 1237. Tue
word “admissions” is inserted to cover last sentence of Code § 512. ‘ The
admission must. be made a part of the judgment-roll.” See Board’s rule 319,
subdivision 2. The reference to “ offer” in the Board’s rule is omitted as
covered by subdivision 4. Board’s references to replevin papers, statement and
judgment in confession, and papers on submission of controversy, have been
omitted here and covered under the respective subjects. Subdivision 3 is
second sentence of Code § 1237. See Board’s rule 319, subdivision 4, identical.
Subdivision 4 is third sentence of Code § 1237. See Board’s rule 319, sub-
division 5, identical. Subdivision 5 is first sentence of Code § 1354. See
Board’s rule 319, subdivision 6, identical. Subdivision 6 is last sentence of
Code § 1237. Subdivision 7 is Code § 1354, last sentence. See Board's
rule 319, subdivision 7, identical. ‘Subdivision 8 is Code § 1239, first sentence.
See Board’s proposed county law § 179g, identical. The last sentence is
made a new section.

The Board made subdivision 3 of its rule 319, as follows:

“(3) Official searches for conveyances or incumbrances made in the progress
of the cause, shall be filed with the judgment-roll;”

This provision is taken from General Rule of Practice 64, relating to sale
of real estate under mortgage foreclosure and made general by the Board. It
is too broad in its terms as the Board states the rule and would cover every
case where an official search was obtained by either party for any purpose
during the progress of the cause.]

Rule 143. Stay of judgment and enforcement. The entry of
final judgment, and the subsequent proceedings to collect or other-
wise enforce it, are not stayed by an exception, the preparation or
settlement of a case, or a motion for a new trial, unless an order
for such a stay is procured [and served].

[Code § 1005, first part of first sentence. The Board omitted this pro-
vision as covered by rule 321. The rule has been omitted and the matter js
covered under “Stay on appeal.’’]
JiuLes or Court iit]

Rule 144. Satisfaction of judgment wholly or partly. Where
an-execution issued upon w& judgment wholly or partly for a sum
of money, or directing the payment of « sum of money, is returned
wholly or partly satisfied, the clerk must make an entry of the
satistaction, or partial satisfaction, in the docket of the judgment
upon which it was issued. Thereupon the judgment is deemed
satisfied to the extent of the amount returned ag collected, unless
the return is vaeated by the court.

[Code § 1264. New matter is from Code § 1272. See Board’s proposed
judiciary law § 288, identical.]

ARTICLE 29
MOTIONS FOR NEW TRIAL

Rule 145. Practice upon order directing exceptions to be heard

in first instance by appellate division.

1406. Motion for new trial where specific questions were
tried by jury.

147. Case and exceptions on motion for new trial.

148. Case where question submitted to jury as substitute
for feigned issue,

14. Notes of stenographer treated as minutes of the judge.

150. When order on motion for new trial to specify grounds.

Rule 145. Practice upon order directing exceptions to be
heard in first instance by appellate division. At any time
before the hearing of the exceptions upon an order of a trial judge
directing that exceptions be heard in the first instance by the
appellate division where the trial was by jury, the order may be
revoked or modified, upon notice, in court or out of court, by the
judge who made it; or it may be set aside for irregularity by the
court at any term thereof. Unless it is so revoked or set aside,
the exceptions must be heard upon a motion for a new trial, which
must be decided hy the appellate division. The motion is deemed
to have been made when the order was granted, and either party
may notice it for hearing at a term of the appellate division
upon the exceptions.

(Code § 1000, last three sentences, without change of substance. ]

£6
1442 Report or Jornt Lecisuative CoMMITTEE

Rule 146. Motion for new trial where specific questions
were tried by jury. Where the judge, who presided at the trial
of an action triable by the court at which one or more specifie ques-
tions of fact were tried by a jury, neither entertains a motion for a
new trial, nor directs exceptions taken at the trial to be heard at 4
term of the appellate division of the supreme court, a motion for a
new trial can be made only at the term where the motion for final
judgment is made, or the remaining issues of fact are tried, as
the case requires.

[Code § 1003, last sentence without change of substance. See Board’s ruke
373.]

Rule 147. Case and exceptions on motion for new trial.
A party intending to move for a new trial of an issue of fact
must make a case and procure the same to be settled and signed
in the same manner as upon an appeal from a judgment rendered
after the trial of such an issue, except where the motion is upon
the minutes of the judge who presided at a trial by a jury, or
upon an allegation of irregularity or surprise or except as other-
wise provided by law.

[Code §§ 997, 998, so far as they relate to motion for new trial.]

Rule 148. Case where question submitted to jury as sub-
stitute for feigned issue. When any specific question of fact
involved in an action or any question of fact not put in issue is
ordered to be tried by a jury, as a substitute for a feigned issue,
and has been tried, or a reference other than of the whole issue
has been ordered [under the Code,] and a trial had, if either
party shall desire to apply for a new trial, on the ground of any
error of the judge or referee, or on the ground that the verdict
or report is against evidenee (except when the judge directs such
motion to be made upon his minutes at the same term of the
court at which the issues are tried), a case or exceptions shall be
made, or a case containing exceptions, as may be required; which
case or exceptions must be served and settled in the wsual manner
[prescribed by the rules of court for the settlement of cases and
exceptions in other cases. Such motions must be made, in the
first instance, at special term].

[General Rule of Practice 31, second paragraph.]
: Reures or Courr 1443

Rule 149. Notes of stenographer treated as minutes of the
judge. [The] Upon « motion for a new trial, notes of an official
stenographer, or assistant stenographer, taken at a trial, when
written out at leneth, may he treated, in the discretion of the
judge, as minutes of the judge upon the trial[[, for the purposes
of this article].

[Code § 1007, without change of substance. Included by Board in rule
373.]

Rule 150. When order on motion for new trial to specify
grounds. When an order grants or refuses a new trial, except on
the exceptions taken during the trial, it must specify the grounds
upon which the motion was made and the grounds upon which
it is granted.

{General Rules of Practice 31, first sentence.]

ARTICLE 30

APPEALS
GENERAL PROVISIONS RELATING TO APPEALS

Rule 151. Case and exceptions, service, amendment and settle
ment.
152. Failure to make case.
153. Bill of exceptions; case and exceptions; final judg-
ment on appeal; resettlement; exhibits.

APPEALS TO THE APPELLATE DIVISION OF THE
SUPREME COURT

Rule 154. Papers to he furnished on appeal by appellant.
155, Cases and points on appeal; printing, indexing and
delivery,
156. Briefs and points to be exchanged by the parties.
157. Calendar practice; notes of issue; default judgments.
t5s. Hearing of non-enumerated motions; defaults.
159. Time allowed to counsel.
160, Opinions; copies and publication,
Rule 151. Case and exceptions, service, amendment and
settlement. Whenever it shall he necessary to make a case, or a
1444 Revorr or Jounr Lesistarive Commirren :
case and exceptions, or a case containing exceptions, the same shall
be made, and a copy thereof served on the opposite party within
the following times:

If the trial was before the. court or referee, including trials
by a jury of one or more specific questions of fact in an action
triable by the court, within thirty days after service of a copy
of the decision or report and of written notice of the entry of
the judgment thereon.

In the surrogate’s court, within thirty days after service of a
copy of the decree or order and notice of the entry thereof.

If the trial were before a jury within thirty days after notice
of the decision of a motion for a new trial, if such motion be
made and be not decided at the time of the trial, or within thirty
days after service of a copy of the judgment and notice of its
entry.

The party served may[[, within ten days thereafter,] propose,
within ten days thereafter, amendments thereto, and serve a copy
on the party proposing a case or exception, who [may] then,
within four days thereafter, may serve the opposite party with a
notice that the case or exceptions with the proposed amendments
will be submitted for settlement at a time and place to be specified
in the notice, to the judge or referee before whom the cause was
tried.

Whenever amendments are proposed to a case or exceptions,
the party proposing such case or exceptions shall, before sub-
mitting the same to the judge or referee for settlement, mark upon
the several amendments his allowance or disallowance thereof,
and [shall] also [plainly] shall mark plainly thereon and upon
the stenographer’s minutes the parts to which the proposed amend-
ments are applicable, together with the number of the amendment.
Tf the party proposing the amendments claims that the case should
be made to conform to the minutes of the stenographer he must
refer at the end of each amendment to the proper page of such
minutes, The judge or referee shall thereupon correct and settle
the ease. The time for settling the case must be specified in the
notice, and it shall not be less than four nor more than ten days
after the service of such notice. The lines of the ease shall he so
numbered that each copy shall correspond. The surrogate, on
appeal from his court, [may] hy order, may allow further time
for the doing of any of the acts above provided to be done on sneh
appeals.
Ruries or Court 14-£5

Cases reserved for argument and special verdicts shall be settled
in the same manner. The parties may agree on the facts proven
to be inserted in the case, instead of the testimony on the approval
of the judee.

[General Rule of Practice 32, except last sentence.]

Rule 152. Failure to make case. If the party shall omit
to make a case within the time [above] limited in the preceding
rule, he shall be deemed to have waived his right thereto; and
when a case is made, and the parties shall omit, within the several
times so [above] limited, the one party to propose amendments,
and the other to notify an appearance before the judge, or referee,
they shall [respectively] be deemed, respectively, the former to
have agreed to the case as proposed, and the latter to have agreed
to the amendments as proposed.

[General Rule of Practice 33.]

Rule 153. Bill of exceptions; case and exceptions; final
judgment on appeal; resettlement; exhibits. A bill of excep-
tions shall contain only so much of the evidence as is necessary
to present the questions of law upon which exceptions were taken
on the trial; and it shall be the duty of the judge upon settlement
to strike out all the evidence and other matter which in his opinion
have been inserted unnecessarily.

A case and exceptions shall contain all the evidence by question
and answer, the rulings of the court and the exceptions of all
parties to the record, but shall not contain the opening and sum-
ming up or the remarks of counsel unless ordered by the judge or
referee before whom the case or exceptions are settled. The
appellate division, on rendering final judgment on appeal pur-
suant to the provision of section [1317 of the Code of Civil
Procedure] fire hundred and ninety-nine of the Cwil Practice
Act, on reversing or modifying a judgment entered upon the
decision of the court, or the report of a referee, without granting
a new trial, may reverse anv finding, and shall make such new
findings of facts proved upon the trial as shall be necessary to
sustain the judgment awarded by the appellate division. The
facts as found by the appellate division shall be inserted in its
order for judgment and the facts as found hy the special term or
1446 Revorr or Jornry Legisnarive ComMMITTER

referee before whom the case was tried which are reversed by the
appellate division [shall] hkewise shadl be specified in such order.

If any case or bill of exceptions does not conform to this rule,
the court before which the same shall be brought for review may
order the same back for resettlement.

Exhibits shall not be printed at length unless the judge or
referee so directs. .

When, upon non-enumerated motions, voluminous documents
have been used which are material only as to the fact of their
existence, or as to a small part of their contents, the parties
[may], by stipulation, or the court or judge below [may], upon
notice, may settle a statement respecting the same, or the parts
thereof to be returned upon the appeal from the order, to be used
in place of the original documents.

[General Rule of Practice 34.]

Rule 154. Papers to be furnished on appeal by appellant.
In all cases to be heard in the appellate division, except appeals
from non-enumerated motions, the papers shall be furnished by
the appellant or the moving party, and in cases agreed upon,
under section [1279 of the Code] five hundred and sixty-one of
the Cwil Practice Act, by the plaintiff.

The party whose duty it is to furnish the papers shall cause
a printed copy of the requisite papers to be filed in the office
of the ckerk of the appellate division within twenty dave after
an appeal has been taken, or the order made for the hearing
of a cause therein, or the agreed ease filed in the clerk’s office
pursuant to section [1279 of the Code] five hundred and sixty-one
of the Civil Practice Act; but if it shall be necessary to make a
case or case and exceptions after the appeal has been taken or the
order made for the hearing in the appellate division, the printed
papers, including the case as settled and signed by the judge before
whom the case was tried, shall be filed within twenty days after
the settlement of the case; and the party whose duty it is to furnish
the papers shall serve within said twenty days, upon his adversary
three printed copies of such papers. .

Such papers shall consist of a notice of appeal, if an appeal
has been taken; a copy of the judgment-roll, or the decree in
the court below, and the papers upon which it was”entered: if
no judement was entered, the pleadings, minutes of trial, and
the order sending the case to the appellate division or the order
Ruues or Court 1447

appealed: from, or the papers required by section [1284 of the
Code of Civil Procedure} five hundred and sixty-two of the Civil
Practice Act. To these papers shall be attached the case or case
and exceptions if it is to be used in the appellate division. All
the foregoing papers shall be certified by the proper clerk, or be
stipulated by the parties to be true copies of the original. There
shall he pretixed to these papers a statement showing the time of
the beginning of the action or special proceeding, and of the
service of the respective pleadings; the names of the original
parties in full; and any change in the parties, if such has taken
place. There shall be added to them the opinion of the court
below, or an affidavit that no opinion was given, or, if given, that
a copy could not be procured. The foregoing papers shall consti-
tute the record in the appellate division. If the papers shall not
he filed and served as herein provided by the party whose duty it
is to do so, his opponent may move the court on three days’ notice,
on any motion day, for an order dismissing the appeal, or for a
judgment in his favor, as the case may be.

The papers in all appeals from non-enumerated motions shall
cousist of printed copies of the papers which were used in the
court below, and are specified in the order, certified by the proper
clerk, or stipulated by the parties to be true copies of the original,
and of the whole thereof. There shall be added to them the opinion
of the court below, or an affidavit that no opinion was given, or, if
given, that a copy could not be procured.

Thev shall be filed with the clerk within fifteen days after
the appeal is taken and at the same time the appellant shall
serve upon his adversary three printed copies thereof.

If the appellant fails to file and serve the papers as aforesaid,
the respondent may move, on any motion day, upon three days’
notice, to dismiss the appeal.

If the judge from whose order the appeal is taken orders that
it shall not be necessary to insert in the printed papers upon
which the appeal is to be taken such exhibits or other voluminous
documents as are not necessary for a consideration of the questions
raised by the appeal, the clerk [shall] then shall certify that the
printed papers are true copies of the originals and of the whole
thereof specified in the order except those omitted by order of the
court.

[General Rule of Practice 41.]
1448 Rerorv or Jorny Leqisnarive Cowmerren

Rule 155. Cases and points on appeal; printing, indexing
and delivery. The cases and points, and all other papers fur-
nished in the appellate division in calendar cases, shall be printed
on white writing paper, with a margin on the outer edge of the
leaf not less than one and a half inch wide. The printed page,
exclusive of any marginal note or reference, shall be seven inches
long and three and a half inches wide. The folio, numbering
from the commencement to the end of the papers, shall be printed
on the outer margin of the page.

The cases and points in each case shall be uniform in size
and in the type of this rule.

All cases cited on the briefs from the courts of this state shall
be cited from the reports of the official reporters, if such cases
shall have been reported in full in the official reports.

At the beginning of the argument of any appeal, the party
whose duty it is to furnish lie papers shall deliver to the clerk
thirteen copies thereof, and each party shall deliver to the clerk
thirteen copies of his briefs and points. The clerk shall deliver
one copy of the papers and briefs to each justice, two to the official
reporter, and shall transmit one to the librarian of the state law
library, one to the clerk of each of the other departments, and
shall dispose of the remainder as directed by the court. The
appellate division in any department may require further copies
of the papers and briefs to be delivered in their discretion.

The printed papers on appeal shall contain an index in the
front thereof. The index of the exhibits shall concisely indicate
the contents or nature of each exhibit and the folio of the case
at which it is admitted in evidence and at which it is printed
in the record. Said index shall also contain a reference to the
folios at which a motion for a dismissal of the complaint or
the direction of a verdict is contained; and to the certificate that
the case contains all the evidence. At the top of each page of
the case or bill of exeeptions must he printed the name of the
witness then testifying and of the party ealling him, and indieat-
ing whether the examination is dircet, eross or redirect. Each
affidavit or other paper printed upon an appeal from an order
shall be preceded by a deseription thereof that must specify
on whose behalf it was read; and the name of the affiant shall
be printed at the top of each page containing an atidavit. On
an appeal from an order granting or denying a motion to strike
out parts of a pleading as irrelevant, redundant or seandalons, or
Ruxies or Court 1449

to make a pleading more definite and certain, the portion of the
pleading to which the motion relates must be printed in italies.

[General Rule of Practice 43.)

Rule 156. Briefs and points to be exchanged by the parties.
The appellate division in any department, may make such rules
in relation to the exchange of briefs and the delivery of papers
and briets to the justices thereof as they may deem expedient in
all cases, whether enumerated or non-enumerated.

[General Rule of Practice 42.)

Rule 157. Calendar practice; notes of issue; default judg-
ments. At the first term of the appellate division of the supreme
court in each department, and at such other times as the court,
[shall] from time to time, shall direct, the clerk shall make up
a calendar which shall consist of cases pending and undisposed of
as follows:

Notes of issue for the appellate division shall be filed eight
days before the commencement of the court at which the cause
may be noticed. The clerk shall prepare a calendar for the
appellate division and, cxeept in the first department, cause the
same to be printed for each of the justices holding the court.
Appeals shall be placed on the calendar according to the date of
the service of the notice of appeal, and all subsequent enumerated
appeals in the same cause shall be put on the calendar as of the
date of the first appeal, and other caves as of the time when the
question to be reviewed arose. Appeals in non-enumerated motions
shall also he placed upon a separate calendar. Cases entitled to
preference shall be placeé separately on the calendar.

The appellate division of each department shall adopt rules
reculating the hearing of causes and of calendar practice in such
department not inconsistent with the [Code of Civil Procedure]
Covil Practice Act.

Judement of reversal hy default will not be allowed. Where
the cause is called in its order on the calendar, if the appellant
fails to appear and furnish the eowt with the papers required,
and argue or submit his cause, judgment of affirmance by default
will be ordered on motion of the respondent. IJf'the appellant
only appears he mav either argue or submit the case. Tf neither
party appears, the case will be passed and placed at the foot of
1450 Reporr or Jornrv Lyearstative ComMItTrer

the calendar. When any cause shall be twice passed, the clerk
shall enter an order of course dismissing the appeal or the pro-
cecdings, or denying the motion for a new trial, but the court
may], upon motion, may vacate the order and restore the cause.

[General Rule of Practice 39.]

Rule 158. Hearing of non-enumerated motions; defaults.
Non-enumerated motions in the appellate division and appeals
from orders will be heard wpon such days as are designated by
the special rule of the appellate division in each department.

If a non-enumerated motion noticed to be heard at the appel-
late division shall not be made upon the day for which it is noticed,
the party attending pursuant to notice to oppose the same, [may.]
at the close of that order of business, unless the court shall [other-
wise] order otherwise, may take an order against the party giving
the notice, denying the motion, with costs.

[General Rule of Practice 44.]

Rule 159. Time allowed to counsel. At the hearing of causes
in the appellate division [or at Special Term], not more than
one counsel shall be heard on each side, and then not more than
one hour each, except when the court shall [otherwise] order
otherwise.

On appeals from orders and on non-enumerated motions. hut
one counsel on each side shall be heard, and not more than thirty
minutes cach, unless the court shall [otherwise} order otherwise.

The appellate division in any department may make such fur-
ther or different regulations upon these subjects as it may deem
proper.

[General Rule of Practice 47. Reference to “special term” omitted as
covered sufficiently elsewhere. ]

Rule 160. Opinions; copies and publication. PBefore any
decision of the appellate division of the supreme court in any
department in which an opinion is written is announced, there
shall be furnished to the clerk of the court a copy of each opinion
delivered by the court, and immediately after the announcement
of the decision and on the same day, the clerk shall transmit such
copy or copies so reeeived by him, duly certified as required by
section [92] ninety-lwo of the judiciary law, and a list of all eases
Reres or Court 1451

decided at the same time, to the supreme court reporter, and no
decision on any appeal in which an opinion is written shall be an-
nounced until a copy of the opinion has been furnished to the clerk
as aforesaid. No copy of any opinion in any case decided by the
appellate division in any department shall be delivered to any
person until after the decision is announced and no eopy of such
opinion shall be delivered to any person except counsel in the
case until after the list of decisions and certified copies of the
opinions shall have been transmitted to the supteme court. re-
porter. The supreme court reporter shall publish the opintons of
the appellate division as soon as practicable without waiting to
publish together all the opinions of a particular term or month.

[General Rule of Practice $5.]

ARTICLE 31
EXECUTIONS

Rule 161. Sale of lands in the counties of New York and Kings
or the city of Buffalo, under judgement or order.
162, Appheation by receiver in supplementary proceedings
for leave to sue.

Rule 161. Sale of lands in the counties of New York and
Kings or the city of Buffalo, under judgment or order. Where
lands in the county of New York or the county of Kings are sold
under a decree, order or judgment of any court, they shall be sold
at public auction, between eleven o'clock in the forenoon and three
o'clock in the afternoon, unless otherwise specifically directed.

Notice of such sale must be given, and the sale must be had,
as prescribed in section [1675 of the Code] one thousand of the
Civil Practice Act.

Such sales in the county of New York, unless otherwise spe
cifically directed, shall take place at the Exchange Sales rooms,
now located at Nos. 14 and 16 Vesey street in the city of New
York,

The appellate division of the supreme court in the first depart-
ment is authorized to change the place at which said sales shall
be made, mav make rules and regulations in relation thereto and
may designate the auctioneers or persons who shall make the same.
1452 Reponr ov Jomz Leaistarive ComMrirrer

Such sales in the city of Buffalo shall [on and after May 1st,
1896,] take place at the Real Estate Exchange rooms, between
the hours of nine and eleven in the forenoon and two and three
o'clock in the afternoon, unless the court ordering the sales shal]
Fotherwise} direct otherwise. Such gales [shall], however, shall
be made subject to such regulations as the justices of the supreme
emt of the eighth district shall establish.

[General Rule of Practice 62.]

Rule 162. Application by receiver in supplementary pro-
ceedings for leave to sue. Whenever a receiver appointed under
proceedings supplementary to execution shall apply for leave to
bring an action. he shall present and file with his application the
written request of the creditor in whose behalf he was appointed
that such action be brought, or else he shall give a bond, with
sutlicient security and properly acknowledged and approved by
the court, to the person agamst whom the action is to be brought,
conditioned for the payment of any costs which may be recovered
against such receiver. [And] Leave to bring action shall not be
granted except on such written request or on the giving of such
security.

[General Rule of Practice 78, except last sentence.]

ARTICLE 32
ARREST, INJUNCTION AND ATTACHMENT

Rule 163. Affidavit on application for order or warrant to be
filed.
164. Proof of facts relating to amount of bail on arrest.
165. Order of arrest; how signed; contents.
166. Appheation to vacate order of arrest, reduce bail or
increase security.
167. Issuance and attestation of warrant of attachment.

Rule 163. Affidavit on application for order or warrant to
be filed. It shall [also] he the duty of the attorney to file the
petition or affidavit upon which an [injunction, attachment, order
of arrest, or writ], order or warrant has been granted within ten
days after the same shall have been served. In ease of a failure
je
Ruues or Courr 1453

so to file such petition or affidavit, the opposing party may move
to vacate the order or warrant [Lor writ], and the same shall be
vacated by the court or judge granting the same, unless for proper
cause shown, time to file the same shall he extended.

[General Rule of Practice 4, last two sentences. Bracketed matter is
covered elsewhere. ]

Rule 164. Proof of facts relating to amount of bail on arrest.
\ party applying for an order of arrest in an action shall show by

afiidavit facts and circumstances tending to determine the amount
of bail to be required.

[Derived from Code § 557, last sentence. To state, as in the code, that
farts relating to amount of bail may be shown is unnecessary. The only
value of such a provision is to relieve the court or judge from resorting to
intuition to fix the bail. Hence, this proposed rule is mandatary.]

Rule 165. Order of arrest; how signed; contents. An order
for the arrest of a party shall be subseribed by the attorney for
the party obtaining the order, and, unless granted by the court,
shall also be signed by the judgc. It must require the sheriff
forthwith to arrest the party against whom the warrant is directed,
if found within the county of euch sheriff, to hold him to bail in
a specitied sum, and to return the order, with his proceedings
thereunder, as prescribed by law.

[Code § 561, first and third sentences, in sulstance.]

Rule 166. Application to vacate order of arrest, reduce
bail or increase security. Except where an order of
arrest can be granted only hv the court, a defendant arrested
[as prescribed in this title] may apply, at any time before final
judginent, or, if he was arrested within tweuty days before final
judgmeut, at anv time within twenty days after the arrest,
Lapplv] to vacate the order of arrest; or to reduce the amount of
bail; or to inereise the security given by the plaintiff; or for
one or more of those forms of relief, tovether, or in the alternative.
In a case where the order of arrest can be granted only by the
court, a like application may he made, at any time within twenty
davs after the arrest, and an application to inevease the security
given by the plaintiff mav be made at anv time before final
judgment. This rule shall not apply to an application to vacate
1454 Reporr or Jornr Leaistative CoMMITTEER

the order on the ground that the complaint fails to set forth a
cause of action in which an arrest is authorized or an allegation
essential to an arrest.

[Code § 567, except that last sentence is added, to conform to proposed

section of statute which places no limitation on the right to apply to vacate
for insufliciency of the complaint. ]

Rule 167. Issuance and attestation of warrant of attachment.
1 warrant of attachment against property must be subscribed by
the plaintiff's attorney, and, except where it is granted by the
court, by the judge. If granted by the court, the warrant may be
subscribed by the judge holding the term or may be issued by
the clerk, pursuant to order, under the seal of the court. Where
it is subscribed by such judge, the failure to enter an order there-
for shall not invalidate the warrant.

[The first sentence adapts the language of Code § 651, first sentence, relat-
ing to an order of arrest. The last sentence is new. The warrant is grantel
ex parte, under a general section relating to provisional remedies, and there
secms to be no good reason why a judge, sitting in court, may not treat the
application for the warrant as addressed to himself, as judge, without
requiring the entry of a formal court order and an extra application to the
clerk.] :

ARTICLE 33
RECEIVERS

Rule 168. Powers of receiver of debtor’s estate.
169. Security for costs by receiver before action.
170. Sequestration of property of corporation and receiver
thereof.
171. Power of receiver to employ counsel.

Rule 168. Power of receiver of debtor’s estate. Every re
ceiver of the property and effects of [the] a debtor [shall],
unless restricted by the special order of the court, shall have gen-
eral power and authority to sue for and collect all the debts,
demands and rents belonging to such debtor, and to eonipromise
and settle such as are unsafe and of a doubtful character. He
may [also] sue also in the name of a debtor, where it is necessary
or proper for him to do so; and he may apply for and obtain an
Rvuues or Court 1455

order of course that the tenants of any real estate belonging to the
debtor, or of which he is entitled to the rents and profits, attorn
to such receiver, and pay their rents to him. He shall [also] be
permitted also to make leases, from time to time, as may be neces-
sary, for terms not exceeding one year. [[And] /t shall be his
duty, without any unreasonable delay, to convert all the personal
estate and effects into money, but he shall not sell any real estate
of the debtor without the special order of the court until after
Judgment in the cause. He is not to be allowed for the costs of
any suit brought by him against an insolvent from whom he is
unable to collect his costs, unless such suit is brought by order of
the court, or by the consent of all persons interested in the funds
m his hands. But [he may], by leave of the court, he may sell
such desperate debts, and all other doubtful claims to personal
property, at public auction, giving at least ten days’ public notice
of the time and place of such sale.

[General Rule of Practice 77.]

Rule 169, Security for costs by receiver before action. In
all [other] cases where a receiver applies to the court for leave
to bring an action, other than a receiver appointed under proceed-
ings supplementary to execution, he shall show in such appheation
that he has sufficient property in his actual possession to secure
the person against whom the action is to be brought for any costs
which he may recover against such receiver; otherwise the court
may require the receiver to give [such] a bond with sufficient
security and properly acknowledged and approved by the court,
conditioned for the payment of costs[[, and with such security
as in above mentioned].

[General Rule of Practice 78, last sentence. The matter in italics is taken
from the first part of the rule.]

Rule 170. Sequestration of property of corporation and re-
ceiver thereof. All motions for the sequestration of the prop-
erty of corporations, or for the appointment of receivers thereof,
must be made in the judicial district in which the principal place
of business of said corporations, respectively, is situated, except
that in actions brought by the attorney-general in behalf of the
people of this state, when it shall be made to appear that such
sequestration is a necessary incident to the action, and that no
1456 Report or Jotnr Leaisnative CoMMITTEE

receiver has already been appointed, a motion for the appoint-
ment of one may be made in any county within the judicial dis-
trict In which such action is triable. No motion can be made or
other proceeding had for the removal of a receiver elsewhere than
in the judicial district in which the order for his appointment was
made. [And Where a receiver has been appointed, his appoint-
ment shall be extended to any subsequent suit or proceeding relat-
ing to the same estate or property in which a receiver is necessary.

[General Rule of Practice 80. The entire rule has been left intact in this
place for consideration with the subject of Receivers. The appointment of

a receiver is an incident to a motion for sequestration. See general corpo-
ration law, §§ 100, 104-106, 108.]

Rule 171. Power of receiver to employ counsel. No receiver
shall have power to employ more than one counsel, except under
special circumstances and in particular cases requiring the em-
ployment of additional counsel, and in such cases only upon
special application to the court, showing such cireumstances by
his petition or affidavit, and on notice to the party or person on
whose behalf or application he was appointed. [This rule shall
apply to all receivers, present and future; and} No allowance
shall be made to any receiver for expenses paid or made or
incurred in violation of this rule.

[General Rule of Practice $1. Bracketed matter omitted as temporary.]

ARTICLE 34
ACTION TO RECOVER REAL PROPERTY

Rule 172. Description of property in complaint.
175. Motion for plaintifi’s attorney to produce his anthor-
1
174. Verdict, report or decision to state nature of plaintiff's
estate,

Rule 172. Description of property in complaint. The
complaint an wn action to recover real property or the posses-
sion thereof must describe the property claimed with common. eer
tainty, by setting forth the name of the township or tract, and
the number of the lot, if there is any, or in some other appro-
priate manner; so that, from the deseription, possession of the
Ruues or Covrr 1457

property claimed may be delivered, where the plaintiff is entitled
thereto.

[Code § 1511, without change. See Board’s rule 162.]
a

Rule 173. Motion for plaintiff’s attorney to produce
his authority. A defendant in an action to recover real
property or the possession thereof, [Pmay,] at any time
before answering, upon an affidavit that evidence of the av-
thority of the plaintifl’s attorney to commence the action has not
been served upon him, may apply, upon notice, to the court or
judge thereof, for an order directing the attorney to produce such
evidence. Any written request of the plaintiff or his agent to
the plaintiff's attorney to commence the action, or any written
recognition of his authority so to do verified by the affidavit
of the attorney or any other competent witness, is sufficient pre-
sumptive evidence of such authority.

[Code $§ 1512, 1514, without change. Included by Board in rule 138.
Section 1513 providing for stay pending production of evidence of authority

is omitted as unnecessary in view of the broad powers given by the proposed
section of Civil Practice Act on “ Stay.”

Rule 174. Verdict, report or decision to state nature of
plaintiff’s estate. .\ verdict, report or decision in favor of the
plaintiff in an action for the recovery of real property or the
possession thereof [specified in this article}, and the judgment
rendered thereon, must specify the estate of the plaintiff in the
property recovered, whether it is in fee, or for life, or for a term
of vears, stating for whose life it is, or specifying the duration
of the term, if the estate is less than a fee.

[Code § 1519, without change of substance. Omitted by Board as covered
by general provisions. ]

ARTICLE 35
ACTION FOR PARTITION

Tule 175. General requirements as to complaint.
176. Ascertainment by court of rights of parties hefore
interlocutory judgment.
177. Reference on default ov admission in ease of infants.
absentees or unknown parties.
1458 Reporr or Joint Leaistarive ComMMITTEr

Rule 178. Proof required upon application by party for money
paid into court.
179. Notice of stay of sale.
180. Referees to be selected by court.

Rule 175. General requirements as to complaint. The
complaint in an ‘action for ,partition must describe the
property with common certainty, and must specify the rights,
shares and interests therein of all the parties, as far as the same
are known to the plaintiff. If a party, or the share, right or
interest of a party, is unknown to the plaintiff; or if a share, right
or interest is uncertain or contingent; or if the ownership of the
inheritance depends upon an executory devise; or if a remainder
is a contingent remainder, so that the party cannot be named;
that fact also must [[also} be stated in the complaint. ‘Where
infants are interested, the complaint shall state whether the parties
cun any other lands in common. The complaint also must con-
tain any other allegation required by statute.

[Code § 1542, without change. Omitted by Board, as covered by general
rules of pleading, and also presumably upon theory that “forms of plead-

ings” would be devised in connection with the new practice. The italicized
matter is from last clause of General Rule of Practice 65.]

Rule 176. Ascertainment by court of rights of parties before
interlocutory judgment. \Vhere a defendant in an action for
partition has made default in appearing or pleading, or [where] a
party is an infant, the court must ascertain the rights, shares and
interests of the several parties in the property, by a reference or
otherwise, before interlocutory judgment is rendered in the action.

[Code § 1545, without change of substance.]

Rule 177. Reference on default or admission in case of in=
fants, absentees or unknown parties. Where the rights and
interests of the several parties, as stated in the complaint
in an action for partition, are not denied or controverted,
if any of the defendants are infants or absentees or
unknown, the plaintiff, on an affidavit of the fact, and notice to
such of the partics as have appeared, may apply at a special term
for an order of reference to take proof of the plaintifl’s title and
interest in the premises and of the several matters set forth in the
Rues or Court 1459

complaint, and to ascertain and report the rights and interests of
the several parties in the premises, and an abstract of the convey-
ances under which the same are held. [Such referee and the
referee appointed to sell shall in all cases be selected by the
court.]

[General Rule of Practice 66, except last sentence. Included by Board
in rule 273. The last sentence is covered elsewhere.]

Rule 178. Proof required upon application by party for
money paid into court. Upon [such] an application to the
court by a party in an action for partition for money paid into
court, he must produce the following papers:

t. An affidavit made by himself, or, if a sufficient excuse is
shown, by his agent or attorney, stating the true amount actually
due on each incumbrance, and the name and residence of the
owner of the incumbrance, as far as they are known, or can be
ascertained with due diligence.

2. An affidayit showing service of a notice of the application
upon each owner of an incumbrance. Service of the notice within
the state must be personal, or by leaving it at the owner’s resi-
dence with some person of suitable age and discretion, at least
fourteen days previous to the appleation. Service without the
state, if personal, must be made at least twenty days previous
to the application. Tf the owner of the incumbrance resides with-
cut the state, and the place of his abode cannot be ascertained
with reasonable diligence, notice may he served upon him by
publishing it in the newspaper printed at Albany, in which legal
notices are required to he published, once in each week for the
four weeks immediately preceding the application.

[Code § 1564, except first and last sentences, without change of substance. ]

Rule 179. Notice of stay of sale. No order to stay a sale
under judgment in partition [or for the foreclosure of a mort-
gave] shall be granted or made by a judge out of court except
upon notice of at least two days to the plaintiffs attorney,

[General Rule of Practice 67, as to partition.]

Rule 180. Referees to be selected by court. .\ referee to be
appointed in an action of partition to take proofs or to sell shall
1460 Revorr or Joint Legisnarive ComMMITrEer

be selected hy the court, and the court shall not appoint as such
a veferee & person nominated by a party to the action or his
counsel.

{General Rule of Practice 66, last sentence. The italicized matter is to

conform the rule to foreclosure. Sce last clause General Rule of Practice
61.]

ARTICLE 36
ACTION TO FORECLOSE A MORTGAGE

Rule 181. Complaint fo state whether action for mortgage debt

has been brought.

182. Reference on default or admission.

183. Application for judgment on default or admission.

184. Proof of notice of pendency.

185. Contents of judgment of sale.

186. Notice of application for stay of sale.

187. Mortgage and assignments to be filed or recorded
before conveyance.

188. Disposition of surplus.

189. Application for surplus moneys; reference; searches ;
unsatisfied hens.

190. Referees to be selected by the court.

Rule 181. Complaint to state whether action for mortgage
debt has been brought. The complaint in an action to fore
close a mortgage upon real property must state whether any other
action has been brought to recover any part of the mortgage debt,
and, if so, whether any part thereof has been collected.

[Code $ 1629, without change. Omitted by Board as covered by general
provisions relating to pleading. ]

Rule 182. Reference on default or admisston. Tf, in an action
to foreclose a mortenge, the defendant fails to answer within the
time allowed for that purpose. or the right of the plaintiff, as
stated in the complaint, is admitted by the answer, the plaintiff
may have an order yeferriny it to some suitable person as referee,
to compute the smonnt due to the plaintiff and to sueh of the
defendants as ave prior incnmbrancers of the mortgage] premires,
and to examine and report whether the mortgaged premises can
Rures or Courr 1461

be sold in parcels, if the whole amount secured by the mortgage
has not become due. If the defendant is an infant, and has put in
a general answer by his guardian, or if any of the defendants are
absentees, the order of reference also shall [also] direct the
person to whom it is referred to take proof of the facts and
circumstances stated in the complaint and to examine the plaintiff
or his agent, on oath, as to any payments which have been made,
and to compute the amount due on the mortgage, preparatory to
the application for judgment of foreclosure and sale.

[General Rules of Practice 60, first paragraph.]

Rule 183. Application for judgment on default or admission.
When no answer is put in by the defendant in an action to
foreclose a mortgage, within the time allowed for that purpose,
or any answer denying any material facts of the complaint, the
plaintiff, after the cause is in readiness for trial, as to all the
defendants, may apply for judgment at any special term upon
due notice to such of the defendants as have appeared in the
action, and without putting the cause on the calendar.

The plaintiff, in such case, when he moves for judgment, must
show, lv affidavit or otherwise, whether any of the defendants who
have not appeared are absentees, and, if so, he must produce the
report as to the proof of the facts and circumstances stated in the
complaint, and of the examination of the plaintiff or his agent,
on oath, as to any payments which have been made.

[General Rule of Practice 60, second paragraph and first sentence of third
paragraph. ]

Rule 184. Proof of notice of pendency. [And] Jn all fore-
closure cases the plaintiff, when he moves for judgment, must
show by affidavit, or by the certificate of the clerk of the county
in which the mortgaged premises are situated, that a notice of
the pendency of the action, containing the names of the partic»
thereto, the object of the action, and a description of the prop-
erty in that county affected thereby, the date of the mortgage, and
the parties thereto, and the time and place of recording the same,
has been filed at least twenty days before such application for
judement, and at or after the time of filing of the complaint, as
required }ry law.

{General Rules of Practice 60, last sentence.]
1462 Reporr or Jornr Leas iative CoMMITTEE

Rule 185. Contents of judgment of sale. In every
judgment for the sale of mortgaged premises, the deserip-
tion and particular boundaries of the property to be sold,
so far, at least, as the same can be ascertained from the
mortgage, shall be inserted. And, unless otherwise specially
ordered by the court, the judgment shall direct that the mort-
gaged premises, or so much thereof as may be sufficient to dis-
charge the mortgage debt, the expenses of the sale and the co=t- of
the action, [as provided by section 1626 and 1776 of the code, J
and which may be sold separately without material injury to the
parties interested, be sold by or under the direction of the sher iit
of the county, or a referee, and that the plaintiff, or amy other
party, may become a purchaser on such sale; that the sverilih or
referee execute a deed to the purchaser; that out of the procemt-
of the sale, unless otherwise directed, he pay the expenses of tic
sale, [as provided in section 1676 aforesaid, and that he pay
to the plaintiff, or his attorney, the amount of his debt, interest
and costs, or so much as the purchase money will pay of the same
and that he take the receipt of the plaintiff, or his attorney, fr
the amount so paid, and file the same with his report of sale, and
that the purchaser at such sale he let into possession of the premi<¢s
on production of the deed.

[General Rules of Practice 61, first paragraph.)

Rule 186. Notice of application for stay of sale. No order
to stay a sale under judgment [in partition or} for the foreclosure
of a mortgage shall be granted or made by a judge out of court,
except upon a notice of at least two days to the plaintiff's attorney.

[General Rules of Practice 67, as to foreclosure.]

Rule 187. Mortgage and assignments to be filed or recorded
before conveyance. Whenever a sheriff or referee sells mort-
gaged premises under a decree or order, or judgment of the court,
it shall be the duty of the plaintiff, before a deed is executed to
the purchaser, to file such mortgage and any assignment thereof
in the office of the clerk, unless such mortgage and assignments
have been duly proved or acknowledged so as to entitle the same
to be recorded; in which ease, if it has not been [already] done
already, it shall be the duty of the plaintiff to cause the same to be
recorded at full length in the county or counties where the lands <o
Rexes or Court 1465

sold are situated, before a deed is executed to the purchaser on the
sale; the expense of which filing or recording, and the entry
thereof shall be allowed in the taxation of costs; and, if filed with
the clerk, he shall enter in the minutes the filing of such mortgage
and assignments, and the time of filing. But this rule shall not
extend to any case where the mortgage or assignments appear,
by the pleadings or proof in the suit commenced thereon, to have
been lost or destroved.

(General Rules of Practice 63, without change. Included by Board in
real property law, § 503.]

Rule 188. Disposition of surplus. All surplus moneys
arising from the gale of mortgaged premises under any
judgment shall be paid by the sheriff or referee making
the sale within five days after the same shall be
received and be ascertainuble, in the city of New York to the
chamberlain of the said city, and in other counties to the treasurer
thereof, unless otherwise specially directed, subject to the further
order of the court, and every judgment in foreclosure shall contain
such directions, except where other provisions are [[specially]
made specially by the court. No report of a sale shall be filed or
confirmed unless accompanied with a proper voucher for the
surplus moneys and showing that they have been paid over,
deposited or disposed of in pursuance of the judgment. If any
part of the surplus moneys remain in court for the period of three
mon‘hs, the court [must], if no application has been made there-
for, must, and, [may] if an application therefor is pending, may
direct it to be invested at interest for the benefit of the person or
persons entitled thereto, to be paid upon the direction of the
court.

[General Rules of Practice 61, second paragraph, except last sentence, an‘1
second sentence of Code § 1633. The first sentence of Code § 1633 omitted as

covered hy rule. Code § 745 requires moneys to be paid into court within
tiro days.]

Rule 189. Application for surplus moneys; reference;
searches; unsatisfied liens. On filing the report of the
sale in an action to foreclose a mortyage, any party to
the suit, or any person who had a len on the mort-
waged premises at the time of the sale, [upon filing with the
clerk where the report of sale is filed, a notice, stating that he
1464 Report or Jory Leqgisnarive CoMMITTEE

is entitled to such surplus moneys or some part thereof, and the
nature and extent of his claim,J may have an order of reference
to-ascertain and report the amount due to him, or to any other
person, which is a lien upon such surplus moneys, and to ascertain
the priorities of the several liens thereon; to the end that on the
coming in and confirmation of the report on such reference, such
further order may be made for the distribution of such surplus
moneys as may be just. [[The referee shall, in all cases, be
selected by the court.) The owner of the equity of redemption,
and every party who appeared in the cause, or who shall have
filed a notice of claim with the clerk, previous to the entry of
the order of reference, shall be entitled to service of a notice of
the application for the reference, and to attend on such reference,
and to the usual notices of subsequent proceedings relative to
such surplus. But if such claimant or such owner has not ap-
peared, or made his claim by an attorney of this court, the notice
may be served by putting the same into the post-office, directed to
the claimant at his place of residence, as stated in the notice of his
claim, and upon the owner in such manner as the court may
direct. [All official searches for conveyances or incumbrances,
made in the progress of the cause, shall be filed with the judgment-
roll, andj Notice of the hearing shall be given to any person
having or appearing to have an unsatisfied lien on the moneys in
such manner as the court shall direct; and the party moving for
the reference shall show, by affidavit, [what unsatisfied liens
appear by such official searches, and] whether any, and what
Pother} unsatisfied Hens are known to him to exist.

[General Rule of Practice 64. The prevision that referee must be selected
by court is covered elsewhere. The requirement that the party moving the

order shall file notice of claim is omitted in view of provision under * general
practice’ on disposition of money paid into court.]

Rule 190. Referees to be selected by the court. The referee
to be appointed in foreclosure cases, to compute the amount due,
or to sell mortgaged premises, or to report on appheation for
surplus moneys, shall be selected by the court, and the court
shall not appoint as such referee a person nominated by the party
to the action or his counsel.

[General Rules of Practice 61, last sentence and 64, second sentence. ]
Ruxes or Court 1465

ARTICLE 37
ACTION TO RECOVER A CHATTEL

Rule 191. How title of cause stated im pleading.
192. Pleading wrongful taking or detention.
195. Answer that property was distrained doing damage.
194. Replevin papers to be furnished to court or referee.

Rule 191, How title of cause stated in pleading. An allega-
tion in a pleading interposed by either party to the effect
that the party pleading, or a third person, was, at the
time when the action was commenced, or the chattel was
replevied, as the case may be, the owner of the chattel, or
that it was then his property, is a sufficient statement of title,
unless the right of action or defense rests upon a right of posses-
sion, by virtue of a special property; in which case, the’ pleading
must set forth the facts upon which the special property depends
so as to show that at the time when the action was commenced,
or the chattel was replevied, as the case may be, the party pleading,
or the third person, was entitled to the possession of the chattel.

[Code § 1720, without change. Omitted by Board as covered by the general
rules of pleading.]

Rule 192. Pleading wrongful taking or detention. Where
in an action to recover a chattel the complaint contains a sufficient
statement of the plaintiff’s title, a general allegation that the
defendant wrongfully took the chattel is sufficient without setting
forth the facts showing that the taking was wrongful. Where
the taking of the chattel is not complained of but the action is
founded upon its wrongful detention, the complaint must. set
forth the facts showing that the detention was wrongful.

[Board's rule 166, derived from Code § 1721, almost verbatim.]

Rule 193. Answer that property was distrained doing
damage, Where, i an action to recover a chattel, the defence
is, that a chattel, to recover which the action is brought, was
distrained doing damage, an allegation that the defendant, or
the person by whose command he acted, was then lawfully pos-
sessed of the real property, and that the chattel was distrained
1466 Reporr or Joint Leaisnarive ComMmirrer

while it was doing damage thereupon, is sufficient, without setting
forth the title to the real property.

[Code § 1724, without change. Omitted by Board as covered by general
rules of pleading.]

Rule 194. Replevin papers to be furnished to court or
referee. A copy of the plaintiff’s affidavit, with the accompany ing
requisition and the return of the sheriff, [must be made a part
of the judgment-roll in the action; and a copy of each of them]
must be furnished to the court or the referee upon the trial of an
issue of fact with a copy of the summons and of the pleadings.

[Code § 1717, except as to reference to judgment-roll, which part is covered
elsewhere. ]

ARTICLE 38

MATRIMONIAL ACTIONS

ACTION TO ANNUL A MARRIAGE

Rule 195. Proof required for judgment by default.
196. Order allowing next friend to maintain action.

ACTION FOR A DIVORCE.

197. Proof required on default.
198. Pleading and trial of issue of illegitimacy of children.

ACTION FOR A SEPARATION
199. Requisites of complaint.

PROVISIONS APPLICABLE TO TWO OR MORE
iIMATRIMONIAL ACTIONS

200. Answer of defendant in matrimonial action.

201. Reference in matrimonial action.

202. Reference on default not permitted in action to annul
a marriage or for divorce.

203. Judgment declaring marriage void or granting a
divorce not to be by default ; judgment to be entered
by court.

Rule 195. Proof required for judgment by default.
Before judgment by default shall be granted in an action
Ruxres or Covurr 1467

to annul a marriage on the ground that the party was under
the age of legal consent, proof must be made showing that the
parties thereto have not [freely] cohabited freely for any time
us husband and wife, after the plaintiff had attained the age of
consent. If the action is brought to annul the marriage on the
ground that the plaintiff's consent was obtained by force or fraud,
the plaintiff must show that there has been no voluntary cohabi-
tation between the parties as man and wife; and if it is brought
to annul a marriage on the ground that the plaintiff was a lunatic.
proof must be produced showing that the lunacy still continues,
or that the parties have not cohabitated as husband and wife
after the plaintiff was restored to his reason.

[General Rule of Practice 73, without change of substance. Included by
Board in rule 302, subds. 4, 5, 6.]

Rule 196. Order allowing next friend to maintain
action. An order allowing a person to maintain an action
to annul a marriage as the next friend of an infant, [as
prescribed in section 1744 of this act,]) or as the next friend of
an idiot or lunatic, [as prescribed in section 1748 of this act,]
may be granted by the court, in its discretion, without notice, or
upon notice to such persons and in such a manner, as it deems
proper. [A motion to vacate such an order must be made at a
term held by the judge who granted it, unless he is dead, out of
office, or unable to hear it by reason of sickness or otherwise; or
unless he expressly directs it to be heard at a term held by another
judge.J

[Code § 1755, first sentence omitted by Board as unnecessary detail of
practice. See note 168.]

Rule 197. Proof required on default. [When the]
In an action [is] for a divorce [fon the ground of
adultery], unless it be averred in the complaint (1) that the
adultery charged was committed without the consent, connivance,
privity or procurement of the plaintiff; (2) that five years have
not elapsed since the discovery of the fact that such adultery had
been committed, and that the plaintiff has not voluntarily co-
habited with the defendant since such discovery; and, (3) also,
where, at the time of the offense charged, the defendant was living
in adulterous intercourse with the person with whom the offense
is alleged to have been committed, that five years have not elapsed
1468 Revorr or Jorn? Luarsiattve ComMirrer

since the commencement of such adulterous intercourse was (is
covered by the plaintiff, and (4) the complaint containing such
averments be verified by the oath of the plaintiff [in the manner
prescribed by the code}, judyment shall not be rendered for the
relief demanded until the plaintiff’s affidavit be produced stating
the above facts.

[General Rules of Practice 72, pt. Included by Board in rule 302, subd. 3.]

Rule 198. Pleading and trial of issue of illegitimacy of
children. In an action by a husband for a divorce, if he wishes
to question the legitimacy of any of the children of his wife,
the allegation that thev are or that he believes them to be illegiti-
mate, shall be [distinctlyJ made distinctly in the complaint.
[If Upon default, proofs shall be taken upon the question of
legitimacy as well as upon the other matters stated in the com-
plaint, and if the issue is tried by a jury, an issue on the que-tion
of the legitimacy of the children shall be awarded and tried at
the same time.

[General Rule of Practice 75, without change of substance. Included by
Board in rule 302, subd. 7.]

Rule 199. Requisites of complaint. The complaint in [such]
an action for separation from bed and board must specify particu-
larly the nature and circumstances of the defendant’s misconduct,
and must set forth the time and place of each act complained of,
with reasonable certainty.

[Code § 1764, without change of substance. Included by Board in rule
164.]

Rule 200. Answer of defendant in matrimonial action. Jn
an action to annul a marriage or for divorce or separation. [The]
the defendant in the answer may set up the adultery of the plain-
tiff, or any other matter which would be a bar to a divorcee, sepa-
ration, or the annulling of a marriage contract; and, if an issue
is taken thereon, it shall be tried at the same time and in the
same manner as other issues of fact in the cause.

[General Rule of Practice 74, without change of substance. Included by
Board in Domestic Relations (Law, § 62-b.]

Rule 201. Reference in matrimonial action. In an action
to annul a marriage or for divorce or separation the court shall
Rurzs or Court 1469

not order a reference to a referee nominated by either party or
agreed upon by the parties, nor without proof by affidavit of the
service of the summons and complaint conformably to the rules.
Notice of appearance and retainer shall not be sutlicient to excuse
such proof.

[General Rule of Practice 72, first two sentences without change of sub-
stance. Code § 1012 provides that in such an action reference shall not be
made on consent as of course. Included by Board in rule 275.]

Rule 202. Reference on default not permitted in action to
annul a marriage or for divorce. Jn an action for a divorce
or separation or to annul [for the annulment of] a marriage where
the defendant fails to answer or to appear, no reference shall be
granted to take proof of the facts stated in the complaint, but
before a judgment shall be granted the proof of such facts must
be made to the court in open court and a copy of the evidence
taken before the court shall be written out and filed with the
judgment-roll. The court [may], however, in case the evidence
is such that the public interest requires that the examination of
the witnesses should not be public, may exclude all persons from
the court room except the parties to the action and their counsel
and the witnesses, and shall order such evidence, when filed with
the clerk, sealed up and exhibited only to the parties to the action
or some one specially interested upon order of the court.

[General Rule of Practice 72, in part, amended as indicated. Included by
Board in Rule 302, subd. 2. The rule seems to supersede General Rule of
Practice 76, first two sentences, except as to action for separation, which is
here included.]

Rule 203. Judgment declaring marriage void, or granting
a divorce not to be by default; judgment to be entered by
court. No judgment annulling a marriage contract, or granting
a divorce, or for a separation or limited divorce, shall be made of
course by the default of the defendant; or in the consequence of
any neglect to appear at the hearing of the cause, or by consent.
Every such ease shall be heard after the trial of the issue, or
upon the coming in of the proofs at a special term of the court;
but where no person appears on the part of the defendant, the
details of evidence in adultery causes shall not be read in public,
but shall be submitted in open court.

No judgment in an action for a divorce shall be entered except
upon the special direction of the court.

[General Rule of Practice 76, except third sentence. ]
1470 Rervorr or Jomr Lueistative ComMITrer

ARTICLE 39

PROCEEDINGS FOR APPOINTMENT OF COM-
MITTEE OF INCOMPETENT; POWERS AND
DUTIES OF COMMITTEE

Rule 204. Person, how designated in proceedings for appointment
of committee.
205. Petition for committee; where to be presented.
206. Contents of petition.
207. Fees and expenses of inquisition in lunacy.

Rule 204, Person, how designated in proceedings for ap-
pointment of committee. In all proceedings [under thi-
title] for the appointment of a committee of [such] a
person incompetent to manage himself or his affairs, in conse-
quence of lunacy, idiocy, habitual drunkenness, or imbecility
arising from old age or loss of memory and understanding, or
other cause, he shall be designated “an alleged incompetent
person;” and after the appointment of a committee of such
person, in all subsequent proceedings the lunatic, idiot, habitual
drunkard or imbecile shall be designated “an incompetent
person.”

[Code § 2320, last sentence, without change of substance. Included by
Board in Civil Rights Law, § 174.]

Rule 205. Petition for committee; where to be presented.
Except as otherwise provided by statute or rule for the presenta-
tion of a petition in behalf of the state in respect of an inmate of
a state institution [in the next section], where the application is
made to the supreme court, the petition must be presented at a
special term held within the judicial district, or to a justice of
said court within such judicial district at chambers, where the
person alleged to be incompetent resides; or if he is not a resident
of the state, or the place of his residence cannot be ascertained,
where some of his property is situated, or the state institution is
situated of which he is an inmate.

[Code § 2323, except first sentence, without change of substance. The first
sentence is included in a separate section. The whole proceeding is made an

action by the Board, and the place of commencing the action is covered by
rule 79.J
i
Tvuxres or Court 1471

Rule 206. Centents of petition. The petition must

1. Be in writing;

#. Show that the case is one of those specified in [this] article
eighty-two of the Civil Practice Act, or be accompanied with
proof, by attidavit, of that fact.

3. Set forth the names and residences of the husband or wife,
if any, and of the next of kin and heirs, of the person alleged to
be incompetent, as far as the same are known to the petitioner, or
can[, with reasonable diligence, be ascertained by him with
reasonable diligence; [and also]

4. State the probable value of the property possessed and
owned by the alleged incompetent person, and what property has
been conveyed during said alleged incompetency and to whom, and
its value and what consideration was paid for it, if any, or was
agreed to be paid;

5. Be verified by the affidavit of the petitioner, or his attorney,
to the effect that the matters of fact therein stated are true.

[Code § 2325. first three sentences, without change of substance. Omitted
by Board.]

Rule 207. Fees and expenses of inquisition in lunacy. On
the execution of a commission of lunacy, the commissioners, for
every day they are [necessarily] employed necessarily in hearing
the testimony and taking the inquisition, shall be entitled to an
allowance to be fixed by the court, not exceeding ten dollars for
each day to each of such commissioners.

Where the costs and expenses exceed two hundred and fifty
dollars, besides witners fees and allowances to commissioners, the
committee shall not be at liberty to pay the same out of the estate
in his hands. without a speeial order of the court, upon notice to
all parties who have appeared in such proceedings, directing such
payment.

[General Rule of Practice 71, without change.]
1472 Rerorr or Jom Leatsnarty, ComMItTEE

ARTICLE 40

PROCEEDING FOR APPOINTMENT OF GEN-
ERAL GUARDIAN OF INFANT

Rule 207. Petition for appointment.
208. Age of infant and amount of property to be ascertained
by court.
209. Bond of general guardian.

Rule 207. Petition for appointment. Except in cases other-
wise provided for by law, for the purpose of having a general
guardian appointed, the infant, if of the age of fourteen years
or upward, of some relative or friend, if the infant is under four-
teen, may present a petition to the court, stating the age and
residence of the infant and the name and residence of the per-
son proposed or nominated as guardian, and the relationship, if
any, which said person bears to the infant, and the nature, situa-
tion and value of the infant’s estate.

[General Rule of Practice 52.]

Kule 208. Age of infant and amount of property to be
ascertained by court. Upon presenting the petition, the court
[shall], by inspection or otherwise, shall ascertain the age of
the infant, and, if of the age of fourteen years or upward, shall
examine him as to his voluntary nomination of a suitable and
proper person as guardian; if under fourteen, shall ascertain who
is entitled to the guardianship, and shall name a competent and
proper person as guardian. The court shall [also] ascertain also
the amount of the personal property, and the gross amount ,of
value [of] or the rents and profits of the real estate of the infant
during his minority, and shall [also] ascertain also the sufficiency
of the security offered by the guardian.

[General Rule of Practice 53.]

Rule 209. Bond of general guardian. The security to be
given by the general enardian of an infant shall be a bond in the
penalty of double the amount of the personal estate of his ward
and of [a the evoss amount or value of the rents or profits of the
o

Rugs or Court 1475

real estate during his minority. The bond shall be executed by
the guardian, together with at least two sufficient sureties, each
of whom shall be worth the amount specified in the penalty of the
bond over and above all debts. If, however, the total amount of
the personal estate of an infant and of the gross amount or value
of the rents or profits of the real estate during his minority shall
exceed twenty-five hundred dollars, then the bond must be the
bond of a surety company authorized to do business in this state,
or the general guardian may give a bond seeured hy a mortgage
on improved and unincumbered real property of the value of the
penalty of the bond.

The eonrt, in its discretion, may vary the security where from
special cirewmstanees if nay be found for the interest of the
infant, and may direct the principal of the estate and anv part
thereof to be invested in the stocks of the state of New York
or of the United States, or deposited with any trust company
which shall have heen designated as a depository for such moneys.
or invested in bond and mortgage on unineumbered and improved
property of at least double the valve of the amount invested, to be
shown to the satisfaction of the court, for the benefit of the infants,
and that the interest or income thereof only be received by the
emardian. ,

[General Rule of Practice 54.]

ARTICLE 41

PROCEEDINGS FOR THE DISPOSITION OF THE
REAL PROPERTY OF, AN INFANT OR IMCOM-
PETENT

Rule 210. Place of appheation.

211. Notice of application required,

212. Contents of petition.

218. Report of referee.

214, When proceeds of sale of real property of infant may
be paid to general guardian.

915. Limitation on costs and fees in proceedings to dis-
pose of real property of infant.

47
1474 Report or Jomny Leaisnative CoMMITTER

Rule 210. Place of application. Where [the] application is
made to the supreme court to sell, convey, mortgage, release or
lease the real properly of an infant or incompetent, the petition
must be presented at a term held within the judicial district in
which the property, or a part thereof, is situated.

[Code § 2349, third sentence, without change of substance. Included by
Board in rule 79.]

Rule 211. Notice of application. Where [such] «an applica-
tion to sell, convey, mortgage release or lease the real property of
an incompetent affects the interest of an incompetent person who
has been committed to a state institution and is an inmate thereof,
notice of such application must be given to the superintendent,
acting superintendent, or state officer having jurisdiction over
the institution where the incompetent person is confined.

[Code § 2349, last sentence, without change of substance. Under Board’s
rule 207, the persons on whom service must be made in an action to dispose
of real property may be determined by the court.]

Rule 212. Contents of petition. The petition in a proceeding
to sell, convey, mortgage, release or lease the real property of an
infant or incompetent must be verified and must state:

1. The name, age and residence of the infant, idiot or habitual
drunkard ;

2. The grounds of the application ;

3. If the application be on the ground of paying the debts of
the infant or incompetent, or for the maintenance and necessary
education of himself and his family, or substantially promoting
his interests by such disposition, [in a case specified in sub-
divisions first and second of the last section but one,J other than
a case where the application is made for the sale of an undivided
interest of the infant or incompetent person in one or more parcels
of land in order to avoid an action of partition on the part of his
cotenants, or for the dower of a widow therein, [it must also
state] the particulars and value of the real and personal property,
and the amount of the income of the infant or ineompetent person ;
the disposition which has been made of his personal property, and
an account of the debts or demands, if any, existing against his
estate. In the case [above] specified in this subdivision where
the application is made for the sale of an undivided interesi of
the infani or incompetent person, the petition must state the
particulars and value of the real property in respeet to whieh a
gale is desired.
Rures or Court 1475

4. ‘he name and residence of the person proposed as a special
guardian or committee, the relationship, if any, which he bears
to the infant, lunatic, idiot or habitual drunkard, and the security
proposed to be given.

o. Whether any previous application has been made, and, if
so, the time thereof, and what disposition was made of the same.

[Code § 2350 and General Rule of Practice 55, combined without intended

change of substance. Omitted by Board, the proceeding being changed to
action. ]

Rule 213. Report of referee. The referee appointed in a pro-
ceediny to sell, mortgage, or lease real property, or an interest
therein, of an infant or incompetent [on such petition] must
report as to whether a sale, mortgage or lease of the premises,
or any and what portion thereof, would be beneficial to the infant,
lunatic, idiot or habitual drunkard, and the particular reason
therefor, and whether the infant, lunatic, idiot or habitual drunk-
ard is in absolute need of having some and what portion of the
procceds of such sale, mortgage or lease, for a puropse specified
i the petition [provided in section 2348 of the Code] in addition
to what he might earn by his own exertions; and such referee
shall [also] ascertain and report also the value of the property
or interest to be disposed of, specifically, as to each separate lot
or parcel, and whether there is any person entitled to dower or
a life estate, or estate for years, in the premises, and the terms
and conditions on which it should be sold.

[And] The referee's report shall give such further facts as
are necessary or proper on the application.

The facts in relation to the value of the property or interest
to be disposed of required to be ascertained and reported upon
by the referee must be proven on such reference by evidence of
at least two disinterested persons, in addition to that of the
petitioner, and the report shall not refer to the petition or any
other papers for a statement of fact.

[General Rule of Practice 56, withont change of substance, Tueluded by

Board in rule 272, subd. 6.1

Rule 214. When proceeds of sale of real property of infant
may be paid to general guardian. No money arising from the
sale of the real estate of an infant shall be paid over to his gen-
eral guardian, except so much thereof, or of the interest or income,
1476 Rerorr or Jouve Leaisnavive COMMITTEE

from time to time, as way be necessary for his support or main-
tenance, unless such guardian shall give a bond in the penalty
of double the umount to be paid to hin with sufficient surety
to be approved by the court. In case, however, such money shall
exceed the sum of five hundred dollars the court must require
the guardian to give a bond of a surety company authorized to
do business in this state or a bond secured by a inoitgage on
nnproved and unineumbered real property of a value of the penalty
of the bond.

[General Rule of Practice 59, pt., without change of substance. ]

Rule 215, Limitation on costs and fees in proceedings to
dispose of real property of infant. I[f the infant’s interest im
the property does not exceed one thousand dollars, the whole costs.
including disbursements, shall not exceed twenty-five dollars aid
the expense of a surety bond, if one be required, and referee’s fees
not exceeding ten dollars. Where several infants are interested in
the same premises as tenants in common, the application in behalf
of all shall be joined in the same petition, although they may have
several general guardians; and there shall be but one reference
to ascertain the propriety of a sale as to all, and but one hill of
costs shall be allowed.

[General Rule of Practice 58, pt., without change, except the insertion of
the new matter as indicated.]

ARTICLE 42
COSTS, DISBURSEMENTS AND FEES

Rule 216. Application for additional allowance.

Rule 216. Application for additional allowance. {7 [A]
apphiation[s] for an additional allowance can only he made to
the court before which the trial is had or the judgment rendered,
and shall in all cases he made before final costs are adjusted.

[General Rule of Practice 45, without change of substance. Tneluded hy
Board in costs law, § 12.]
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