n (Jnrnpll Hatu i>rl|0nl Hxbtarj) Cornell University Library KFN5995.C46 Code practice in New York / 3 1924 022 786 309 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924022786309 CODE PRACTICE IN NEW YORK BY H. GERALD CHAPIN, LL.D. (of the new YORK BAb) ' PKOPBSSOB OF I^W IN FORDHAM UNIVBB8ITT AND IN NEW JERSEY LAW SCHOOL NEW YORK BAKER, VOORHIS & COMPANY 1918 COPYMGHT, 1918 BY BAKER, VOORHIS & COMPANY JOHN T. STURDEVANT, ESQ. OP THE NEW YORK BAB, AT TIMES AN ALLY BEFORE THE COURTS, AT TIMES AN ADVERSARY, AND WITHAL A FRIEND FOR MANY YEARS, THIS WORK IS DEDICATED BY THE AUTHOR. FOREWORD The author desires to acknowledge his indebtedness for permission given by Carlos C. Alden, Esq., Dean of the Department of Law of the University of Buffalo, to make use of his "Handbook of the Code" in writ- ing this work and for valuable assistance rendered by Edward J. H. Rogers, Esq., of the New York County Clerk's office, in the preparation of that portion which deals with costs. H. GERALD CHAPIN. October 1, 1918. TABLE OF CONTENTS CHAPTER I PAGE INTRODUCTION 1-3 CHAPTER II THE COURTS AND THEIR JURISDICTION 1. The Court of Appeals 4, 5 2. The Supreme Court 5-7 3. The County Courts 7, 8 4. The City Court of the City of New York 8-10 5. The Surrogates' Courts 10, 11 6. The Municipal Court of the City of New York 11, 12 7. Justices' Courts 12 8. Selecting the Proper Court 12-14 CHAPTER III JUDGES, ATTORNEYS, AND OTHER OFFICERS 1. Judges 15-21 2. Attorneys 21-26 3. Sheriffs 26 4. Coroners 26 5. Clerks 26, 27 6. Stenographers 27 7. Reporters 27 CHAPTER IV ACTIONS AND PROCEEDINGS 28, 29 vii vm CONTENTS CHAPTER V THE STATUTE OF LIMITATIONS PAGE 1. Actions for the Recovery of Realty 30-33 2. Other Actions 33-38 3. General Provisions 38-40 CHAPTER VI THE PARTIES 1. In General 41-46 2. Infants and Other Incompetents 46-51 CHAPTER VII OBTAINING JURISDICTION OVER DEFENDANT 1. Form of Summons 52-57 2. Service of Summons. . 57-69 (A) Personal Service 57-63 (B) Substituted Service 63, 64 (C) Service by Publication 64-69 3. Voluntary Appearance 69-71 CHAPTER VIII RAISING THE ISSUES 1. In General 72, 73 2. Complaint 73-78 3. Demurrer to Complaint 78-83 4. Answer 83-93 (A) Denials 84-88 (B) New Matter 88, 89 (C) Counterclaims. . 89-92 (D) Partial Defenses 92, 93 CONTENTS IX PAGE 5. Demurrer to Answer 93, 94 6. Reply 94, 95 7. Demurrer to Reply 95 8. General Provisions^. . . . i 95-106 (A) liberal Construction 95, 96 (B) Folioing 96 (C) Filing 96 (D) Verification 96-102 (E) Special Provisions as to Form 102-106 (I) Private Statute 102 (II) Account 102 (III) Judgment 102 (rV) Condition Precedent 102, 103 (V) Instrument for Payment of Money Only 103 (VI) Libel and Slander 104, 105 (VII) Corporations 105, 106 9. Extending the Time 106, 107 10. Amendment of Pleadings 107-109 11. Variances 109-111 12. Supplemental Pleadings HI 13. Motions to Strike Out and for Judgment — Frivolous Pleadings — Sham Defenses 111-114 CHAPTER IX PROVISIONAL REMEDIES 1. In General 115 2. Arrest 115-122 3. Injunction 122-126 4. Attachment 126-140 5. Receivers 141, 142 6. Replevin 142-145 CHAPTER X NOTICE OF TRIAL AND NOTE OF ISSUE 146-148 X CONTENTS CHAPTER XI MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL PAGE 1. Motions 150-156 2. Service of Papers 156-161 3. Changing the Venue 161-163 4. Security for Costs 163, 164 5. Tenders and Offers 164^166 6. Proceedings upon Death, Disability or Transfer 166-168 7. Bills of Particulars 168-174 8. Consolidation 174, 175 9. Interpleader 175-177 10. Dismissal for Neglect to Serve Sununons or to Proceed . . . 177-179 11. Depositions 179-197 (A) Taken and to be Used Within the State 179-192 (I) De Bene Esse 179, 180 (II) To Frame a Pleading 180, 181 (III) To Prepare for Trial 181-189 (IV) Physical Examination 190 (V) Discovery and Inspection 190-192 (VI) For Use on a Motion 192 (B) Taken Without, for Use Within the State 192-196 (I) Classes 192-195 (II) Procedure 195, 196 (C) Taken Within for Use Without the State 196, 197 12. Preferences 197-199 13. Procuring Attendance of Witnesses and Production of Doc- uments 199-202 14. Requests to Admit Genuineness and Notices to Produce. 203, 204 15. Evidence — Miscellaneous Provisions 204r-213 (A) Competency of Witnesses; Evidence in Particular Cases. 204r-207 (B) Documentary Evidence 207-213 (I) As a Substitute for Oral Testimony 207, 208 (II) Proof of Document Executed or Remaining Within the State 208, 209 (III) Proof of Document Remaining in U. S. Court or Public Office or Executed or Re- maining Without the State 209, 210 (IV) Miscellaneous Provisions 210-213 CONTENTS XI CHAPTER XII TRIALS PAGE 1. Mode of Trial 214 2. Trial by Jury 215-217 3. Trial by Jury; Procedure 217-235 (A) The Marked Pleadings 217 (B) Selecting the Jury 217, 218 (C) The Opening Addresses 218, 219 (D) Dismissal on Opening 219, 220 (E) Introduction of Evidence 220-226 (F) Withdrawing a Juror 226, 227 (G) Dismissals and Directed Verdicts 227-229 (H) Final Addresses 229 (I) Judge's Charge 229-231 (J) The Verdict 231, 232 (K) Motions for New Trial and for Stay 232, 233 (L) Entry of Judgment 233-235 4. Trial by the Court 235-240 5. Trial by Referee 240-243 6. .Trial by Arbitrators 244-247 7. Submission on Agreed Statement of Facts 247 CHAPTER XIII THE ENTRY, ENFORCEMENT, AND DISCHARGE OF JUDGMENTS 1. Judgments— In General 248, 249 2. Entry of Judgment 249-259 (A) Upon Default 249-259 (B) Upon Confession., 259 3. Executions 259-273 (A) In General 259, 260 (B) Against the Property 260-265 Against Earnings, Income, &c 265-270 (C) Against the Person 270-272 (D) For the Delivery of Real Property or Chattels 272, 273 4. Siy)plementary Proceedings 273-282 XU CONTENTS PAGE 5. Judgment Creditors' Actions 282-286 6. Suit on the Judgment 286 7. Discharge by Satisfaction 287, 288 8. Vacating, Setting Aside, and Correcting 288-292 (A) Vacating and Setting Aside 288-291 (B) Correcting the Judgment 291, 292 CHAPTER XIV APPEALS 1. Appeals to the Appellate Division 293-303 2. Appeals to the Court of Appeals 303-309 CHAPTER XV ACTIONS RELATING TO EEAL PROPERTY 1. In General 310-314 (A) Notice of Pendency of Action 310-312 (B) Method of Sale 312, 313 (C) Compelling Delivery of Possession, Right of Action by Reversioner, Order Restraining Waste, Order for Survey 313, 314 2. Ejectment 314-319 3. Partition 319-327 4. Dower 327-329 5. Foreclosure of Mortgage 329-347 (A) By Action 329-345 Surplus Proceedings 345, 346 (B) By Advertisement 346, 347 6. To Determine a Claim 347-350 7. Waste 350, 351 8. Nuisance 351, 352 9. Other Actions 352-354 10. Perpetuation of Testimony. . 354 CONTENTS XUl CHAPTER XVI ACTION TO RECOVER A CHATTEL (REPLEVIN) PAGE 1. When Maintainable 355, 356 2. Pleadings 356-358 3. Verdict, Report, Decision and Judgment 358, 359 CHAPTER XVII PARTICULAR ACTIONS 1. Matrimonial Actions 360-390 (A) In General 360-376 (B) Annullment 376-384 (C) Divorce 384-389 (D) Separation 389, 390. 2. Actions Relating to Decedents' Estates 390-401 (A) By or Against an Executor or Administrator 390-394 (B) By a Creditor against Next of Kin, &c 394-397 (C) To Establish or Impeach a Will 397-401 3. Actions against and between joint debtors 401-403 CHAPTER XVIII STATE WRITS 1. In General 404, 405 2. Habeas Corpus to bring up a Person to Testify 405-407 3. Habeas Corpus and Certiorari to Inquire into Detention . 408-413 4. Mandamus 413-418 5. Prohibition 418-421 6. Assessment of Damages 421-422 7. Certiorari to Review 422-431 CHAPTER XIX SPECLA.L PROCEEDINGS INSTITUTED WITHOUT WRIT 1. Summary Proceedings to Recover Real Property 432, 433 2. Discovery of Life Tenant's Death 433, 434 XIV CONTENTS PAGE 3. Appointment of the Committee of an Incompetent 434-437 4. Disposition of the Land of an Infant or Incompetent 438-440 5. Change of Name 440-444 CHAPTER XX PROCEEDINGS IN SURROGATES' COURTS 1. In General 445-448 2. Probate of Wills 448-468 3. Letters of Administration 468-474 4. Administration, Distribution and Accounting 474r494 5. Revocation of Letters 494r-496 6. Sale of Decedent's Realty. . 496-499 7. General Guardians 499-504 „8. Probate of Heirship 505 TABLE OF CASES ^ PAGE Acer V. Hotchkiss 92 Acker v. Leland 216 Adams v. Bristol 324 " V. Irving Natl. Bank. . 230 " ». Olin 35 " «. Roscoe Lumber Co. . 228 " 9. Sherrill 103 Alfonso V. Alfonso 66 Allen V. Com Exchange Bank 306 AUis V. Leonard 229 American C. I. Co. v. Bondy . . 169 " Guild V. Damon. . . 92 LandCo. W.Zeiss. . . 67 " Transfer Co. v. Borg- feldt & Co 170 " Woolen Co. v. Alt- krug 182 Anderson v. Abell 60, 61 " S.Anderson 400 " V. Speers 75 Anonymous 203 Anthony & Co., Matter of. . .181 Appeal Printing Co. v. Sher- man 159 Archibald v. N. Y. C. & H. R. R. Co 317 Arents v. Long Island R. Co. . . 317 Argyle Co. v. Griffith 175 Associate Presbjrterian Cong. V. Hanna 105 Atherton v. Atherton 68 Atkiengesellschaft &c. v. New- mark 113 PAGE Atkins «. Elwell 222 Auto Lighter Co. v. Wicks, Hughes & Co 289 Automobile Club v. Canavan 183 Avery v. Avery ...._. 127 B Babcock v. Anson 76 Bachman v. Harrington, 20, 21, 122 Backman v. Rodgers 220 Baker v. Bailey 85 " D.Wales 61 Balz V. Underbill 95 Bamberger v. Cooke 184 Bank of Montreal v. Fidelity National Bank 127 Banker v. Banker 381 Banque Agricole v. Ungu- reanu 118 Barker v. Binninger 262 Barnard v. Heydrick 55 Barnes v. Quigley 110 Barrett v. Third Ave. R. Co. . . 22 Barry v. Mutual Life Ins. Co. . 176 Bartkowaik v. Sampson 320 Barson v. Mulligan 226 Baxter v. Drake 117 " V. McDonnell 93 Baylis v. Stimson 85 Beck V. CathoUc University . . 307 Becker v. Becker 378 " ». Boon 164 XVI TABLE OF CASES PAGE Becker v. Woodcock 55 Bedlow V. N. Y. Floating Dry Dock Co 32 Beekman v. Van Dolsen ... . 350 Beglin v. People's Trust Co. . . 101 Bell V. Lawrence 61 " V. Merrifield 215 Belotti, Matter of 474 Beman v. Todd 312 Bennett v. Leeds Mfg. Co. . . . 86 Bergman v. Klein 316 Berney v. Adriance 68 Bertman v. Neisner 109 Biedler v. Malcolm 89 Bildersee v. Aden 136 Bingham v. Gaynor 105 Bliss V. Johnson 353 Bloodgood V. Slayback 191 Bloomingdale v. Cook 128 Blossom V. Estes \. . 134 Bogardus v. N. Y. Life Ins. Co 74, 81 Bohlen v. Met. El. Ry. Co.. . .292 Bolte V. Third Ave. R. Co.. . .224 Bopp V. N. Y. El. Vehicle Transp. Co 227 Boskowitz V. Sulzbacher 168 Bosworth V. Vanderwalker . . . 235 Bowling Green Savings Bank i-. Todd 21 Boyle V. Municipal Gas Co. . . 181 Brackett, Matter of 365 Bradley v. Krudop 450 Bradtn. Church 32 Brass v. Rathbone 123 Bresel v. Browning 311 Brewster v. F. G. Brewster Co 191 Briggs V. Bergen 112 Brinkley v. Brinkley 363 PAGE Brisbane v. Penn. R. Co 162 Bristor v. Burr 354 Broderick v. de Mesa 162 Brodsky v. Hibel 224 Brooklyn Imp. Co., Matter of, V. Pounds 414 Brooks Bros. v. Tiffany. . 109, 111 Brown v. Brown 69 " S.Nichols 22 " w. Utopia Land Co.. .. 82 " Paint Co. v. Rein- hardt 229 Bruce v. Burr 88 Brush ». Blot 104 " V. Constable 232 Buell V. Van Camp 130 BuMey v. Bulkley 61 Bullock V. Bogardus 477 Burbank, Matter of 461 Burdick, Matter of 504 Burke, Matter of, 434, 436, 437 Burkert v. Bennett 87 Bums V. Boland 118 Bush V. O'Brien 22 Butler V. Frontier Telephone Co 315 V. General Ace. Ass. Corp. Ltd 92 Bjrmes v. Byrnes 290 C Calhoun ». Commonwealth Trust Co 196 Callahan, Matter of 478 Camp V. IngersoU 242 Campbell v. Spencer 160 Canavan v. McAndrew 282 Carman v. Plass 43 Carpenter v. Manhattan Life Ins. Co 90 TABLE OF CASES XVll PAGE Carr v. Thompson 34 Cashman v. Reynolds 82, 108 Casola V. Kugelman 209 Cate». Fisk 162 Caw V. Robertson 459 Century Bank v. Breit- bart 207 Chambers & McKee Glass Co. V. Roberts 129 Chapman v. McCormick 230 Chase-Hibbard Milling Co. v. Cityof Ehnira 208 Chester v. Buffalo Car Mfg. Co 292 Claflin ». Du Bois 160 Clancy v. N. Y., N. H. & H. R. Co 307 Clark, Matter of 24, 437 V. Clark 44 V. DUlon 85 " V. King & Bro. Pub. Co 124 ». Scovill 291 Clover, Matter of 281 Clute V. Emmerich 263 Coatsworth v. Lehigh Valley R. Co 306 Coffins. Coffin 259 " V. Reynolds 83 CogsweU V. N. Y., N. H. & H.R.R. Co 352 Coit ». Stewart 89 Coles. Smith 152 Coleman, Matter of 459 Collins V. Collins .■ . . .363 CoUyer v. CoUyer 398, 467 Colwell V. Garfield National Bank 141 Commerce Exchange Natl. Banks. Blye 356 PAGE Commonwealth Mortgage Co. w. DeWaltoff 329 Conaughty v. Nichols 110 Concordia Savings & Aid Assn. V. Read 105 Conklin v. Federal Trust Co. . 66 Conley v. Meeker 231 Conn. Trust & Safe Deposit Co. ». Wead 37, 39 Connelly v. O'Connor 205 Considerant v. Brisbane 44 Contes. Conte 376 Continental Natl. Bank v. Thurber 67 Cook V. Warren 113 Cooper V. Cooper 291 Co-operative Law Co., Matter of 25 Corcoran v. George Kellogg Structural Co 25 Corley v. N. Y. & H. R. Co.. .294 Corn Exchange Bank v. Blye . 290 Cornell v. Wooley 459 Corning v. Troy Iron & Nail Factory 233 Corr V. Sun Printing and Pub. Assn 104 Correll v. Granget 61 Cosgrove, Matter of 467 Coughlin V. N. Y. C. & H. R. R. Co 24 Cousins V. SchUchter 131 Cox V. N. Y. Cent. & H. R. R. Co 22 Crane v. McDonald 177 Crary v. Goodman 317 Crashley v. Press Publishing Co 209 Cronin v. Crooks 135 Crossett ». Carleton 196 XVlll TABLE OF CASES PAGE Culver V. Rhodes 318 Cunningham v. Cunningham . 378 Cunnion, Matter of 398 Curtiss, Matter of 435 Cutler V. AUavena 139 Cutting V. Jessmer 22 D Dahlstrom v. Germander. ... 114 Dailey v. Dailey 389 " V. Standard Shipbuild- ing Corp 75 Danahy v. Fagan 438 Dardonville v. Smith 177 Darton v. Interborough Rapid Transit Co 220 Davidson v. Ream 379 Davison v. Baker 61 " ». Lynch 250n. Daws, Matter of 278 Dazian v. Meyer 141 Deagan v. Weeks 89 De AngeUi, Matter of, v. Dixey 275 Decker v. Gardner 141 Delabarre v. McAlpin 400 Delaware Co. Natl. Bank v. King 74 de Meli v. de Meli 360, 367, 384 Depew V. Beakes 356 De Puy V. Strong 41, 80 Deutch V. Haab 346 Dever v. Hagerty 316 Devlin v. Hinman 305 di Lorenzo v. di Lorenzo. . . .382 Di Menna v. Cooper & Evans Co 217 Dixon V. Shearer 61 Dodge V. Colby . .... 81 PAGE Doherty v. Matsell 31 Donegan & Swift v. Patterson 289 Doscher v. VanderbUt 45 Dougherty v. Lion Fire Ins. Co 236 Doyle V. Am. Wringer Co 78 " V. Olson Realty Co 247 Dryden v. Lattimer 182 Dubois V. Cassidy 281 Dupont V. Village of Port Ches- ter 301 Dupont de Nemour Powder Co. ». Rooney 207 Dwight V. Germania Life Ins. Co 169 Dwyer v. Slattery 169, 170 E EcUpse Silk Mfg. Co. v. Hiller 75 Egan & Co. v. Butterworth. . 75 Ehrman v. Bassett 391 Einstein v. General Electric Co 194 Eising V. Young 198 Electrical Accessories Co. v. Mittenthal 85 EUengoben v. Slocum 112 Elsey V. International Rail- way Co 254 Elson V. Ungerer 182 Emery v. Baltz 84 Empire Engineering Corp. v. Mack 177 Engelhardt v. Benjamin 117 Eno V. Diefendorf 40 Equitable Life Ins. Co. v. Stevens 330 Esselstyn ». Weeks 40 Evans v. Cleveland 166 TABLE OF CASBS XIX F PAGE Fagan v. Atlantic Coast Line R. Co 306 Fairweather v. Burling 326 Farmers L. & T. Co. v. Dick- son 62 Fearing v. Irwin 247 Ferner v. Williams 103 Ferrin v. Myrick 390, 391 Fett V. Greenstein 94 Fick V. Metropolitan St. Ry. Co 233 First Commercial Bank v. Valentine 144 First National Bank, Matter of... 273 V. Na- tional Broadway Bank .... 209 Fisher Textile Co. v. Perkins 80 Fitch, Matter of 425 Fitzgerald v. Dakin 160 Fitzpatrick v. Moses 281 Fitzsimons, Matter of 23 Flandrow v. Hammond 207 Fleischmann v. Bennett .... 104 ». Stern 85 Fletcher v. Daniels 37 Fliess V. Buckley 477 Flynn, Matter of 280 " ». Judge 494 Fox V. Cammeyer 227 " V. Cowperthwait 103 Francis v. Watkins 313 Frank Brewing Co. v. Ham- mersen 94 Fredericks v. Taylor 101 Freer v. Denton 77 Frick Co. V. Pultz 75 Frost V. Yonkers Savings Bank 263 Furman v. Furman 291 G PAGE Gaffney ». Bigelow 159 Gallagher v. McMuUin 230 Gardner v. Gardner 379 Gavazzi v. Dryfoos 74 Gay V. Paine 103 Gedney v. Gedney 353 General Film Co. v. Liver- pool & L. & G. Ins. Co 170 Gennert v. Butterick Pub. Co 291 Gibson v. American L. & T. Co 43 Gilbert v. Finch 403 " S.York 7 Gill, Matter of 477 Gillette ». Bate 284 Gilman, Matter of 478 Gilmore v. Hempstead 98 Gilsey v. Keen 92 Glaser v. Glaser 364 Goepel V. Robinson Machine Co 175 Goldmark v. Metropolitan Opera House Co 196 Goldstein v. DoUard 13n. Gordon v. Ellenville & K. R. Co 110 Gorse v. Lynch 9 Goth V. Star Printing Co 99 Graham v. Carleton 196 Grannan v. Westchester Rac- ing Assn 305 Grant v. Birdsall 53 Green v. Disbrow 35 Greenberg v. Greenberg 378 Greenblatt v. Zimmerman .... 352 Greene v. Geiger 313 Gregory v. Acme Road Ma^ chinery Co 190 Greifenstein, Matter of 495 XX TABLE OF CASES PAGE Griffin v. L. I. R. Co... 85, 87, 355, 357 Groesbeck v. Morgan 34 Groff J). Bliss 9 Guenther v. Ridgway Co 189 Gunn V. Gunn 376 H Hadcock v. City of Glovers- viUe 351 Haddock v. Haddock 68 Haebler, Matter of, v. N. Y. Produce Exchange 416 Haggart v. Morgan. .■ 128 Haight V. Moore 160 Hale V. Omaha Natl. Bank ... 81 Halfmoon Bridge Co. v. Canal Board 152 HaU «. N. Y. Tel. Co 75 Hamilton, Matter of 442 Hammond v. Hopping 203 Hanna v. Lichtenstein 81 Hardenburgh v. Fish 84 Harley v. Plant 114 Harris v. EUiott 259 " ». Steiner 286 Hartford Natl. Bank v. Bei- necke 95 Hartmann v. Schnugg 239 Hartwig v. American Malting Co '. 196 Hasbrouck v. Bunce 41 Hastings, Matter of 274 Hatch V. Hatch 383 Hathaway v. HoweU 262 " ». Johnson 118 Havana City Ry. Co. v. Ce- ballos 80 Havholm v. Whale Creek Iron Works 169, 170 PAGE Hayes v. Consolidated Gas Co 414 Head v. WoUner 129 Heath v. N. Y. Building Loan Banking Co 292 Heine v. Rohner 123 Heller J). Cohen 30 Helwig V. Second Ave. R. Co. . 294 Henning v. Camacho 14 Hentz V. Havemeyer 83 Herbst v. Hagenaers 246 Hewlett V. Wood 323 Hey V. Colhnan 235 Heyen, Matter of 495 Heyman v. Heyman .... 362, 364 Higgins V. Downs 399 " «. Sharp 361 Hillyer v. LeRoy 284 Hinckle v. Sullivan 84 Hinkle v. Zimmerman 244 Hobby ?;. Hobby 390 Hoffenberth v. Nash 402 Hoffman v. N. Y. Cent. & H. R. R. Co 229 " V. Rose Dress Co. . . . 164 " Houses. Foote .220 Holcornb v. Holcomb 205 Holder J). Holder 320, 322 HoUenbeck v. Donnell 141 Holmes ». Northern Pac. R. Co 93 " ». Roper 222 Honegger v. Wettstein 227 Hooker v. Eagle Bank of Rochester 203 Hoormann v. Climax Cycle Co 131 Hopkins v. Lane 90 Houle V. Houle 377, 382 Howell, Matter of 25 TABLE OF CASES XXI PAGE Howell V. Huyck 203 " V. Leavitt 33 Hubbell V. Medbury 44 Huber, Matter of 458 HuU». Ball 102 Humboldt Exploration Co. v. Fritsch 280 Hungarian General Credit- Bank V. Titus 95 Hunt V. Hunt 360 Hunter v. Lister 60 Huntington v. Cortland Home Tel. Co 123 Hyland v. N. Y. C. & H. R. R. Co 36 I Ingalls Stone Mfg. Co. v. Nunn 128 Irving V. Royal Exchange As- surance 193 Ivy Courts Realty Co. v. Morton 92 J Jackson v. Strong Ill D.Woodruff 31 Jaecken v. Muller 9 Jagau V. Goetz 36 James v. Signell 131 Jarvis v. Am. Forcite Powder Mfg. Co 312 Jaworower v. Rovere 56 Jefferson v. N. Y. El. R. Co. . . 235 Jenkins v. Putnam 182 Johnston v. Gundberg 285 Jones V. Brinsmade 361 " V. Jones 323, 367 " ». Ludlam 86 " V. McDonough 169 PAGE JoossD. Fey 320 Joyce V. Eastman Kodak Co. . .153 Judd Linseed & Sperm OU Co. a. HubbeU 290 Julian V. Woolsey 291 K Kantor Brothers v. Wile 280 Kaplan v. Friedman Const. Co 226 Karosas v. Susquehanna Coal Co 60 Keister v. Rankin 294 Kelly, Matter of, v. Van Wyck 415 Kelsey, Matter of, v. Church . . 414 Kennedy, Matter of 398, 467 " J). Carrick 279 " ». HaU 312 " V. Lamb 65 " ». Mostert 168 Kerrains v. People 354 Keyes v. Smith 226 Ejng V. Irving 266 " «. Ross 348 " 1). Village of Fort Ann ... 307 Kings Co. Lighting Co. v. Woodbury 241 Kipp V. N. Y. C. & H. R. R. Co 110 Kirke La SheUe Co. v. Arm- strong 228 Kirschbaum v. Eschmann . . 85, 86, 114 Kittel ». Stueve 259 Klotz J). Angle 37 Knickerbocker Trust Co. v. Isehn 81 Knoth V. Manhattan Ry. Co. . .123 Koehler ». Adler 88 XXll TABLE OF CASES PAGE Koenig v. Eagle Waist Co 21 Korn V. Lipman 65, 158 Kornbluth v. Isaacs 182, 183 Ki-all V. City of New York. . , 35 Kram v. Jewish World Pub. Co 184n. Kramer v. Barth 112 Kranz v. Lewis 78 Kraus v. Birnbaum 227 Kruger v. Eiuger 378 Kuh V. Goldman 159 L Labar v. Koplin 232 Ladd V. Stevenson 289 Ladenburg v. Commercial Bank 130 Lake Ontario • Natl. Bank v. Judson 218 Lamming v. Galusha 77, 78 Langly v. Wadsworth 224 Lawson v. Bachman 203 Leary v. Albany Brewing Co. . 241 Lee V. Troy Citizens' Gas- LightCo..: 74 Leggett V. Stevens 81 Leprell v. Kleinschmidt 315 Lerbs v. Lerbs 320 Levy V. Goldstein 132 Lewis V. Pollack Ill, 118 Lewkowicz v. Queen Aero- plane Co 8 Liberty W. P. Co. v. Stoner W. P. Mfg. Co 90 Licausi v. Ashworth 55 Lildenthal v. Germania Life Ins. Co 226 Lipman v. Jackson Architect- ural Iron Works 89 Lipschitz V. Watson. '. 311 PAGE Litzenberger d. Litzenberger. . 231 Livingston v. N. Y. El. R. Co. . 160 ». Tanner 352 Long Island Bottlers' Union V. Bottling Brewers' Assn. . . 181 LoriUard ». Clyde 81 Loscher v. Hager 171 Losey v. Stanley 439 Losie V. Royal Indemnity Co 171, 174 Lowther v. Lowther 200 Lucia Mining Co. v. Evans. . .209 Lumb's Will, In re 459 Lynch v. Crary 136 " V. Metropolitan El. Ry. Co 215 Lyon V. Manhattan Ry. Co.. . 190 " V. Park 167 Mc McCarthy v. McCarthy 64 McCoubray v. St. Paul F. & M. Ins. Co 76 McCrum v. Lex Realty Co. . .311 McDonald v. Metropolitan St. Ry. Co 227 McGarren, Matter of 61 McGinley v. U. S. Life Ins. Co 230 McGrath v. Maxwell 286 " S.Pitkin 94 McGuire, Matter of 25 ». Schroeder 282 McHenry v. Jewett 123 McKenna v. Duffy 22, 71 McLean v. Ryan 207 McMahon v. Roseville Trust Co 128, 132 McNally v. Phoenix Ins. Co. . . 225 TABLE OF CASES XXlll PAGE McNeil V. Board of Supervis- ors 83 McNulty V. Mt. Morris El. Light Co 352 M Mackellar v. Rogers 216 Madge v. Puig 77 Maicas v. Leony 243 Makepeace v. DUltown Smoke- less Coal Co 127, 129 Mandeville v. Reynolds 22 Manufacturers' & Traders' Bank?). Koch 225 Maran v. Maran 376 Marie v. Garrison 81 Mark v. Buffalo 22 Market Natl. Baiik v. Pacific Natl. Bank 66 Marshall v. Davies 221, 226 Marston v. Gould 222 Martin v. Bernheim 101 " V. Prentice 175 Masey v. Masey 365 Mason v. Mason 367 "- !). N. Y. Rev. Co 183 Masterson v. Townsend 81 Mathot, Matter of 305 " «. Triebel 25 Matthews v. Tufts 61 Mayne v. Nassau Elec. R. Co 235 Mayor v. Eisler 55 " P.Gorman 477 Mechanics' & Traders' Bank ». Dakin 284 Meekins v. Kinsella 380 Mendelson v. Newborg . ... 181 Merritt ?'. Merritt. 364 Metcalf ». Clark 61 PAGE Meuer v. Phoenix Natl. Bank. . 87 Meyers v. Overton 60 Middleton v. Whitridge 306 Miers v. Miers 364 Milchsack, Matter of, 436 Miller v. Baillard 175 V. Edison Elec. 111. Co.. 352 t). Ins. Co. of N. A 88 V. Maxwell 104 J). Miller 364 ». Wood 34 Mitchell V. Thome 79 Mizak V. Carborundum Co. . . 190 Moore v. American Molasses Co 168 " ». Coler 210 " V. Charles E. Monell Co 81 Morehouse v. Brooklyn Heights R. Co.. 24 «. Yeager 231 Morgan, Matter of 222 Morrel». Ball 79 Morrison v. Met. El. RyTCo. 291 Morse v. Press Pub. Co 198 Morton v. Petit 74 Mott «. Burnett 88 Mount, Matter of 400 Mowry v. Sanborn 347 Moyer v. Village of NeUiston. . 241 Muller V. Manhattan Ry. Co.. 33 " V. Naumann 320 MuUon, Matter of 478 Mundell v. Coster 378 Munro v. Merchant 31 Murphy v. Hart 103 " S.Jack 131 " V. Keenan 191 " V. Shea .62 Murray v. N. Y. Life Ins. Co. . 218 XXIV TABLE OP CASES PAGE Mutual Life Ins. Co. v. O'Don- neU 23 N Nash V. Spann 169 Natl. Exhibition Co. v. Crane 25 N. Dain's Sons Co. v. Thomas McNaUyCo 131 Neilley, Matter of 34 Neudecker v. Kohlberg 110 N. Y. Life Ins. Co. v. Univer- sal Life Ins. Co 106 N. Y. Lumber & W. W. Co. v. Schnieder 244 N. Y. & N. H. R. Co. V. Schuy- ler 80 N. Y. S. M. Milk Pan Assn. V. Remington Agr. Works. . 55 Nichols V. Michael 355 Niederstein, Matter of 479 Numan v. Wolf 90 O Oakes Mfg. Co. v. City of New York 226 O'Brien v. Kuntz 289 O'Connor v. Healy 290 'O'Donaghue v. Smith 320 Olson V. McConihe 61 O'Neil V. Dry Dock E. B. & B. R. Co 230 Oppenheimer v. Roberts . . 208,229 Orlik V. National Carbon Co. . .108 Ormes v. Dauchy 228 Osborne v. Parker 477 Osterhoudt v. Bd. of Super- visors 43 PAGE Ostrom V. Greene 307 Otis i>. WilUams 144 Outcault V. Bonheur 89 Owen, Matter of 459 P Pacific Natl. Bank v. Mixter. . 127 Packard v. Packard. .215, 367, 389 Paine v. Aldrich 243 Pahner v. Foley 125 " v. Hussey 118 Paltey !). Egan 228 Park W.Park 21 " & Sons «. Hubbard Ill Parsons v. Sutton 89 Patchen v. RofSar 285 Patrick v. Victor Knitting Mills Co 294 Patterson, Matter of 495 t). Patterson 479 Peace v. Wilson 286 Pearce v. Hitchcock 41 Pennoyer v. NeS 67 People V. Baker 68 " V. Dwyer 8 " V. Santa Clara Lvunber Co 291 B. Shenk 224 People ex rel. Albert v. Pool. .409 " " " Apfel V. Casey. .415 " " " Baker v. Dept. of health 415 " " "Ballin?;. Smith. .420 " " " Bebro v. Bond. .408 " " " Brisbane «.ZoU.. 430 " " "Bungart B.Wells. 408 " " " CampbeU v. Par- tridge 430 TABLE OF CASES XXV PAGE People ex rel. Cauffman v. Van Buren....284, 285 ' Citizens' Light- ing Co. V. Feit- ner 423 ' Clark V. The Keeper.... 409, 410 ' Comstock V. Mor- rison 415 '■ Cook V. Hildreth 431 ' Corwin v. Walter 422 " Danziger v. P. E. House of Mercy 409, 410 Day V. Bergen . . 21 " Farley v. Crane. .410 " Fellows V. Early . . 415 " Grogan v. York 425, 427 Harris v. Com- missioners. . . . 414 Hatheway v. Fromme 416 " Haverty v. Barker43I " Hayes !). Waldo.. 425 ' Holden v. Wood- bury 415 ' Hubert v. Kaiser 409 ' Hummel v. Trial Term Part I. .420 ' Jerome v. Court of General Ses- sions 419 ' Keator v. Moss. .408 ' Keim v. Desmond 430 " Kennedy v. Brady 424 " Lehmaier v. In- terurban Ry. Co 414 PAGE People ex rel. Lester v. Eno. .429 " Levine v. Shea. .376 " Livingston v. Wyatt 419, 420 " Loughran v. Board of Railroad Comrs 425 " McAniney v Van- dervoort 416 " McDonald v. Clausen 417 " Manning v. Ha- gan 410 " Miller v. Wur- ster 429 Morrissey v. Waldo 424 " Park Circle Amusement Co. V. Board of Po- lice 415 " Perkins v. Moss 409, 410 " Pruyne v. Walts 408 " Pumpyansky v. Keating 416 " Reynolds v. The Warden 409 " Schau V. Mc- Williams 424 " Sherwood v. State Board of Can- vassers 404 " Shiels If. Greene 431 " Smith V. Hoff- man 425 " Smith V. Van de Carr 410 " Sprague v. Fitz- gerald 419 " Steward v. Board XXVI TABLE OF CASES PAGi; of Railroad Comrs 425 People ex rel. St. Clair v. Davis 409 " " " Trustees of Ja- maica V. Board of Supervisors 424 " " " Tweed v. Lis- comb 409 " " " Union Ins. Co. v. Nash 246 Peri V. N. Y. C. H. R. Co. . . . 25 Perkins v. Perkins 368 " ». Stimmel 51 Person v. Grier 61 Petty V. Emery 74 Phoenix Bank v. DonneU 80 Pindar v. Black 54 Pirrung v. Supreme Council 226, 227 Pistcl^l V. Durant 266 Pitney v. Glens Falls Ins. Co. 44 Places. Bleyl 85 " B.Riley 262 Platner v. Platner 222 Poillon V. Poillon 364 Popper V. Seuffert .... 355 Porter v. Valentine . . . 223 Posner v. Rosenberg 171 Post & Baldwin v. Coleman . . 98 Potter V. Morning Journal Assn 193 Pouch V. Prudential Ins. Co. 176, 177 Prager v. Beardsley 289 Pratt V. D. H. M. F. Ins. Co..228 Preston, Matter of 437 Price V. Levy 131 Prieb V. Kellogg Bridge Co. . . 230 Produce Bank v. Morton 401 PAGE Provost V. International Giant Safety Coaster Co 473 " V. McEnroe 228 Q Quimbo Appo v. People 419 Quinby, Matter of, v. Public Service Com 419 R Rawson v. Silo 226, 227 Reads. French 22 " S.Williams 399 Reader v. Haggin 172 Rice V. Thompson 94 Richards v. Littell 9 Riegler v. Tribune Assn 223 Riglander v. Star Co 198 Riley S.Riley 383 " S.Ryan 289 Robert Dollar Co. s. Canadian Car and Foundry Co 60 Roberts, Matter of 436 " V. Johnson 42 Robinson s. Ecuador Dev. Co. 98 V. Wheeler 110 Rogers s. Adler 181 V. Clement 85 s. Rockwood 160 Rosenbaum v. City of New York 84 Rosenthal s. Cohn 102 Rosenweig v. Wood 129 Rosselle v. Klein 285 Roth V. American Piano Mfg. Co 128 " s. Roth 379 Rowland, Matter of 275 TABLE OF CASES XXVU PAGE Ruback v. McCleary, Wallin & Grouse 229 Rubin 21. Cohn 110 Rudini v. North British & Merc. Ins. Co 183 Rundle v. Allison 34 Rutledge, Matter of 494 Ryan v. Central Delivery Co. 289 S Sackheim v. Pigueron 74 Sandrock, Matter of 495 Sands v. Holland Torpedo Boat Co 169 Satterlee v. Kobbe 321, 322 Savage ». O'Neil 209 Schaeffer v. Schaeffer 382 Schemerhom v. Owens 282 Schenck v. Barnes 306 " J). Egbert 318 Schlegel v. Church of Holy Trinity 159 Schleissner v. Goldsticker. . . .112 Schlesinger v. McDonald 113 Schoeller, Matter of 181 Schreiber v. Gem Stopper Co. 128 Schroter v. Schroter 383 Schubart v. Harteau 89 Schultz V. Rubsam 169 " 9. Schultz 398,467 Schutz V. Morette 390, 478 Schwartz v. Linington 158 Schwarz v. Oppold 102 Schwinger v. Hickok 67 Scott Shoe Machiaery Co. v. Dancel 60 Sears v. Tenhaegen 159 Seaton v. Garrison 95 Secor V. Pendleton 79 PAGE Seeley v. Osborne 10 Segelkin ». Meyer 51 Seymour v. McKinstrey 74 Sheerin v. City of New York 198 Sheridan v. Mayor 44 Shipman v. Long Island R. Co. 167 Shoe & Leather Bank v. Baker 285 Shorer v. Times Printing and PubUshing Co 106 Shriver v. Shriver 30 Siedenbach v. Riley 357 Siegel, Matter of 266 Sigua Iron Co. v. Brown 228 Simpson v. Downing 31 " ». Simpson 392 Slater v. Jackson 60 Slayback v. Raymond 34 Slingerland v. Corwin 170 Smith, Matter of 195 " V. Bradstreet Co 171 " ». Bryant 13 " ». Homer 113 " V. Lehigh Valley R. Co. 229 " V. London Assurance Corp 241 " S.Smith 262, 365 " «;. U.S. Casualty Co.... 441 " Ji. Velie 38 Snape v. Gilbert 102 Sobal V. Sobal 382 Somerset & W. Sav. Bk. v. Huyck 120 Southhack v. Central Trust Co 323 Southworth v. Morgan 209 Spence v. Simis 241 Sperry v. Reynolds 22 " ». Union Ry. Co 230 xxvm TABLE OF CASES PAGE Sprague v. Currie 78 Standard Bitulithic Co., Mat- ter of 424 State Bank v. GUI 100 Steamship Richmond Hill Co. !). Seager 272 Stearns v. Steams 364 Stein V. Dunne 377 Steinback v. Diepenbrock .... 87 Steinway, Matter of 415 Sternberger v. McGovem 76 Sterret v. Third Natl. Bank. .223 Stevens v. Weygandt 183 Stewart v. Russell 194 Stokes V. Amerman 284 " ». Stokes 379, 380 Stone V. Auerbach 85 Stouter V. Manhattan Ry. Co 222 Street, Matter of 274 Strickland v. Henry 228 Strong V. Sproul 112, 113 Stroock Plush Co. v. Talcott. . 105 Stutzbach, Matter of, v. Coler 415 Stuyvesant v. Weil 55 Sulzberger v. Selkir 177 Sussdorff V. Schmidt 110 Sutherland v. St. Lawrence Co 496 Svenson v. Svenson 382 Swift V. Matthews Engineer- ing Co 60 T Taft V. Bronson 78 Tate V. American Woolen Co. . 74 Tauza v. Susquehanna Coal Co 60 Taylor v. Brooklyn El. R. Co. . 165 " ». Hatch 155 PAGE Taylor ». MUlard 319 Tennant Sons & Co. v. New Jersey O. & M. Co 128 Terry v. Ross Heater & Mfg. Co 181 Thayer v. Schley 188 Thompson v. Best 130 " V. Burhans 31 ». ErieR. Co 113 " V. Manhattan Ry. Co 353 " V. Richardson 80 «. Wittkop 86 Thomson v. Tracy 418 Thorington v. Merrick 127 Tilden, Matter of Exrs. of.. . .291 " J). Aitkin 228 Tilton V. Beecher 168 Timolat v. Held Co 160 Tirpaks. Hoe 190 Tisdale Lumber Co. v. Droge. .183 Tishman v. Acritelli 311 Title Guarantee T. Co. v. Am. Power & Const. Co 314 Title Guarantee T. Co a. Brown 275 Titman v. The Mayor 35 Tolles B.Wood 281 Tombo, Matter of 504 Tooker v. Arnoux 103 Town of Hancock v. First Natl. Bank 54 Trenton Banking Co. v. Dun- can 264 Trimble v. N. Y. C. & H. R. R. Co 228 Trustees of East Hampton v. Kirk 228 Tuchband v. Chicago & Alton R. Co 60 TABLE OF CASES XXIX PAGE Tucker v. Edison Elec. 111. Co 352 Tuller». Beck 134 Turner v. City of Newburgh. .222 Tyler v. Twin City Power Co. . 184 U Ubart V. Bait. & 0. R. Co 87 mine V. N. Y. C. & H. R. R. Co 193 Underwood v. Curtis 399 Union Square Bank v. Reich- mann 195 Union Wine Co. v. Green .... 79 U. S., Matter of the Petition of 422 Utica Ins. Co. v. Cadwell 203 Utility Realty Co. v. Dugan. .329 V Vail B.Lane 160 Valentine v. Rose 193 W.Valentine... 205, 387 Van Camp v. Searle 127 Van Heusen v. Argenteau .... 104 Verdi v. Michael Noeenti Co. . 184 Viertels v. N. Y. 0. & W. Ry. Co 162 Vilas V. Plattsburgh & M. R. Co 242 Vogel Co. V. Backer Const. Co 182 Vollaro V. VoUaro 320 Volz zj. Sterner 316 Vonnoh v. Sixty-seventh St. Atelier Bldg 74 Voorhies v. Voorhies 78 Vreeland v. Penn. Tanning Co '. 98, 155 W PAGE Wangner v. Grimm 227 Waiontha Knitting Co. v. Hecht & Campe 175 Wales Mfg. Co. v. Lazzaro. . .169 Walker, Matter of 281 " D.Walker 388 Wallace v. Straus 205 " & Sons ». Castle.... 129 Walter v. Walter 380 Waltermire v. Waltermire. . . .367 Wanamaker v. Megraw 194 Wander v. Wander 236 Ward V. Petrie 79 " ». Sands 53 " Matter of, v. Stoddard. . 273 Warner v. Dockendorff 180 " J). N.Y.Cent. R. C0..232 Warren v. Union Bank of Ro- chester 439 Warth V. Moore B. S. & 0. Co 289 Watertown Bank & Loan Co. ». Mix 231 Wayland v. Tyson 113 Weaver Hardware Co. v. Sol- monovitz 103 Weeks v. Hart 232 " ». O'Brien 83 Wehle V. Conner 262 Weidman v. Sibley 70 Weigand v. Weigand 364 Weinstein v. Frank 46 Wendel v. Wendel 383 Wendling v. Pierce 88 Werner, Matter of, v. W. S. B. L. C. &B. Soc 158 Wetyenp. Pick 327 Wheaton, Matter of 495 Wheeler v. Conn. Mut. Life Ins. Co 81 XXX TABLE OF CASES PAGE Wheeler v. Lawson 357 Whelan v. Gorton 203 Whites. White 367 Whittemore v. Judd Linseed &S. 0. Co 403 Wilcox V. American Tel. & Tel. Co -,..'..227 " ». Stem 193 " Silver Plate Co. v. Green 225 Wiles ». Peck 244 " )). Suydam 77 Willets V. Haines 391 Williams v. Shelly 258 " ». Thorn 281 ». WilUams 68, 382 WiUiamson v. Wager 74 Wilson V. Bennett 99, 102 " O.Locke 175 Wolinsky v. Okun 311 PAGE Woods. Fleet 319 " V. Knapp 65 " V. Orser 355 " y.Wood 364 " ASelicks. Ball 75 Woodbury, Matter of 476 Woodhull V. Rosenthal 315 Work, Matter of 447 Wright V. Bennett 61 Y Yates V. Guthrie 289 Yellow Pine Co. v. Gutwillig. .226 Yenni v. McNamee 262 Z Zapp V. Miller 242 Ziegler v. Garvin 169 Zorntlein v. Bram 320 Zwecker v. Levine 23 CODE PRACTICE IN NEW YORK CHAPTER I INTRODUCTION In tracing the history of the Code of Civil Procedure, we start with the year 1837, when the legislature author- ized the appointment of commissioners to report a sys- tem of procedure in actions at law and in equity. The practice then existing had for many years been regarded with increasing dissatisfaction. Separate com-ts of chan- cery and of common law jurisdiction were in existence each with a distinct procedure clogged with many ar- chaic rules derived from the practice of the English courts. By the Constitution of 1846, the Court of Chan- cery was abolished and its jurisdiction vested in the Su- preme Court. Three commissioners were directed to be appointed "to revise, reform and simplify the rules of practice, pleadings, forms and proceedings of the courts of record of the State." The result was the "Code of Procedure" which was adopted in 1848 and with amend- ments, re-enacted in 1849. At succeeding sessions of the legislature it was again amended and continued in force imtil the adoption of the first half of the present Code in 1877. For about a year it was designated as "The Code of Remedial Justice." In 1873, commissioners were appointed to revise, sim- plify, arrange and consolidate the statutes whose work was to include a Code of Civil Procedure. The latter was subsequently reported to the legislature and adopted. I CODE PRACTICE IN NEW YORK But the Code substantially as we know it to-day, did not spring into being as a single act. It is the result of a series of enactments. Thus, the first thirteen chapters took effect in 1877, chapters fourteen to twenty-two in 1880; in 1890, Titles I and II of chapter twenty-three were added and in 1897, Titles III and IV. By Chapter 664 of the Laws of 1904 a Board of Statu- tory Consolidation was appointed to "direct and con- trol the revision, simplification, arrangement and con- solidation of the statutes of the State." The result was the present Consolidated Laws, passed at the 1909 ses- sion of the Legislature. There had been frequent criti- cism of the Code because of the fact that it contained much substantive law. The Board removed a number of sections to the Consolidated Laws, and particularly to the Judiciary Law. Among these are the sections dealing with the courts, their jurisdiction, the duties of certain ministerial officers, attorneys, etc. By Laws of 1914, ch. 443, the legislatvu-e provided a sub-code governing the practice in surrogates' courts. The former provisions of the Code of Civil Procedure were swept aside, this sub-code becoming sections 2472- 2771. By Laws of 1915, ch. 279, a Code was provided for the New York City Municipal Court, which worked important changes. By section 17 of the Code which subsequently became sections 93 and 94 of the Judiciary Law, the justices of the Appellate Division of the Supreme Court were di- rected to meet in convention at least every two years and establish and revise what are known as "General Rules of Practice." These rules are binding upon all courts of record except the Court of Appeals and the Court for the Trial of Impeachments. .They supplement but cannot supersede or over-ride the provisions of the Code. In addition to these "General Rules of Practice" each INTRODUCTION 6 court or branch of the court may and does estabUsh its own rules regulating such matters as calendar practice, the estabUshment of special terms, etc. These "General Rules of Practice " and special rules will .be mentioned from time to time. CHAPTER II THE COURTS AND THEIR JURISDICTION 1. The Court of Appeals. 2. The Supreme Court. 3. The County Courts. 4. The City Court of the City of New York. 5. The Surrogates' Courts. 6. The Municipal Court of the City of New York. 7. Justices' Courts. 8. Selecting the Proper Court. Courts are either "Courts of Record" or "Courts not of Record," but as all the more important fall in the first class, the distinction is not of present value. Coiuis held by Justices of the Peace and many of the lesser civil tribunals established in the large cities of the state, are courts not of record (Judiciary Law, §§ 2, 3) . 1. The Court of Appeals. The Court of Appeals consists of seven judges, five of whom form a quorum. The concurrence of four is neces- sary to a decision. When the court needs aid in disposing of its calendar, the Governor may designate four justices of the Supreme Court to serve temporarily as associate judges of the Court of Appeals (Const., Art. VI, § 7). Its jurisdiction is exclusively of an appellate character and appeals are taken to it from determinations of the Ap- pellate Division of the Supreme Court. Its decisions are final, unless a question is involved under the United States Constitution, in which case the United States Supreme Court has the power of review. The Court of Appeals can consider questions of law only (Const., Art. 4 THE COTJETS AND THEIR JURISDICTION 5 VI, § 9; Code, § 191). It may make rules regulating the admission of attorneys and counselors at law (Judiciary Law, § 53). 2. The Supreme Cotirt. The Supreme Court has general jurisdiction in law and equity (Const., Art. VI, § 1). This general jurisdic- tion includes all that was possessed by the Supreme Court of the Colony of New York at any time and by the Court of Chancery in England on July 4, 1776 (Code, § 217). The Supreme Court possesses both appellate and orig- inal jurisdiction. The former it exercises through its Appellate Divisions. The State is divided into four judicial departments iti each of which there is an Appellate Division. The First Department consists of the County of New York and the County of the Bronx and the other three contain various counties "equal in population as nearly as may be " (Const., Art. VI, § 2; Judiciary Law, §70). The Appellate Division consists of seven justices in the First Department and five justices in each of the other three, designated by the Governor from all of the Su- preme Court justices (Const., Art. VI, § 2; Judiciary Law, §71). The Governor also designates the presiding justices. At least four but not more than jSve justices hear each appeal and the concurrence of three is necessary to a decision (Const., Art. VI, §2; Judiciary Law, §81). Outside of New York County, the Appellate Divisions are held in the Borough of Brooklyn, in Albany and in Rochester. In New York and Kings Counties, the Appellate Di- vision has a branch known as the "Appellate Term" which hears appeals from the Municipal Court and in the Borough of Manhattan from the City Court. These consist of three justices. 6 CODE PRACTICE IN NEW YORK The original jurisdiction of the Supreme Court is un- limited. No cause is too great or too small. But as will be seen hereafter, there are certain cases where, if the plaintiff recovers judgment below a certain amount, he may be penaUzed by the loss of his costs or by being com- pelled to pay the costs of his adversary. For the purpose of providing for terms and sessions of the trial divisions of the Supreme Court, the state is divided into nine districts. These are entirely distinct from the departments. New York and Bronx Counties are in the first judicial district, while the counties of Richmond, Kings, Queens, Nassau and Suffolk are in the second, the latter coimties being likewise in the second department, together with those in the ninth judicial district (Judiciary Law, § 140). For the purpose of exercising its original jurisdiction, the Supreme Court in each district is divided into "Terms" with regard to the character of the matters to be heard and disposed of. They are known as "Trial Terms," where jury or common law cases are mainly tried, and "Special Terms" where are heard equity cases, issues of law arising on demurrer, special proceedings and all the various intermediate matters which arise for deter- mination during the course of a civil action. These "Special Terms" are further subdivided into terms where equity cases alone are heard and decided and those which are entirely given to the determination of other matters. Thus in New York and Kings Counties, Special Term, Part I, is reserved for litigated motions while Part II is devoted to " ex parte business " (where notice is not re- quired to be given). Spedial and Trial Terms are held in each county at times fixed by the Appellate Division of the judicial de- partment embracing that county (Judiciary Law, §84). Prior to January 1st, 1896, there existed what were called "Superior City Courts" as follows: The Court of THE COURTS AND THEIR JURISDICTION 7 Cortunon Pleas of the County of New York, the Supe- rior Court of the City of New York, the Superior Court of Buffalo and the City Court of Brooklyn. These courts had with some limitations, concurrent jurisdiction with the Supreme Court. They were abolished by the Con- stitution of 1894 (Art. VI, § 5), their records were deposited with the County Clerks of the respective counties (Code, § 93), pending actions were transferred to the Supreme Court, and their -judges were made justices of the Su- preme Court for the remainder of their respective terms. The mmiber of the Supreme Court justices was thus augmented to meet the increased demands upon the Court. (Const., Art. VI § 1). 3. The County Courts. A county court exists in each county of the State ex- cept in New York County. This court is intended to aid the Supreme Court in the determination of actions of a local character. In general, its jurisdiction extends over actions affecting real property, such as partition and foreclosure, and to actions for specific performance of a contract relating to real property, where the land to which such actions relate is situated within the county; to the care of the person and of the property of an in- competent and to other actions where the defendant is or if there are two or more defendants where all of them are residents of the county and wherein the complaint demands judgment for a sum of money only not exceed- ing $2000 or to recover chattels, the aggregate value of which does not exceed $1000 ( § 340.) The omission to aver in the complaint that defendant is a resident of the county is ground for demurrer (Gilbert v. York, 111 N. Y. 544). It will be observed that the County Court may entertain certain actions which are equitable in their nature. A domestic corporation whose principal place of 8 CODE PRACTICE IN NEW YORK business or any part of whose plant, shops, factories or offices is actually located within the county, is deemed a resident (§341). The process of these courts runs to any county in the State (§347). The county judge is also surrogate of counties where there is no separate surrogate, the legislature having power to appoint a separate surrogate only in counties having a population exceeding forty thousand (Const. Art. VI, § 15) . He may also make judge's orders in actions pending in the Supreme Court (§ 241) including an in- junction order (§606; People v. Dwyer, 90 N. Y. 402). But he cannot stay proceedings after verdict, report or de- cision (§ 772) . This power is given him so that there may be a judicial officer on hand to whom instant resort may be had since in some counties where but few terms of court are required, the Supreme Court Justice of the dis- trict is in attendance only for a short period in each year. 4. The City Court of the City of New York. The City Court of the City of New York was known as the "Marine Court" until 1883 (Laws 1883, ch. 6). Its jurisdiction is peculiarly Umited. Actions at law may be brought therein to recover money damages of any amount (§ 315) but "the sum for which judgment is ren- dered in favor of the plaintiff cannot exceed" two thou- sand dollars, "exclusive of interest and costs as taxed," except where it is upon a bond given in the same court, or in actions for breach of promise of marriage or in a marine cause (§ 316). By Laws of 1911, ch. 569, this was raised to five thousand dollars, but the amendment was declared unconstitutional in Lewkowicz v. Queen Aero- plane Co., 207 N. Y. 290. It may also entertain actions for the recovery of chattels subject to a like hmitation, THE COURTS AND THEIR JURISDICTION 9 also for the foreclosure of a mechanic's hen and for the foreclosure of a lien of not more than two thousand dol- lars on chattels (§§315, 316). It has the same jurisdic- tion as the Supreme Court in actions for the recovery of seamen's wages and for assault, battery and false im- prisonment committed on the high seas, etc. But this does not confer upon it authority to proceed as an Admi- ralty Court (§ 317). The City Court has no equitable jurisdiction except as already indicated for the foreclosure of mechanics' hens and hens on chattels. Hence it caimofc entertain an action for an accounting (Gorse v. Lynch, 36 Misc. 150; Jaeeken v. Muller, 20 Misc. 227). It may, however, en- tertain an equitable defense but not a counterclaim for purely equitable rehef (Groff v. Bhss, 19 Misc. 14; Rich- ards V. Littell, 16 Misc. 339). The Court's mandates, including the summons, can be executed and served only within the City of New York, by which is meant the City of New New York as it ex- isted prior to January 1, 1898, before its consohdation with Brooklyn, Long Island City, etc. (see Laws of 1897, ch. 378, § 1345; Laws of 1901, ch. 466, § 1345), except that an execution upon a judgment exceeding twenty- five dollars can be issued to the sheriff of any county where the judgment has been duly docketed, a subpoena may be served or a warrant to apprehend a witness for a failure to obey a subpoena may be executed within coxmties adjoining the County of New York, and an order requiring the performance of an act or to show cause why a person should not be punished for contempt may be served in any part of the state (§ 388) . The difference between the City Court of New York and the County Courts should be noted. In the City Covat an action can be brought for any amount, though judgment cannot be entered in excess of two thousand 10 CODE PRACTICE IN NEW YORK dollars, exclusive of interest and costs (Seeley v. Osborne, 161 App. Div. 844), whereas in the County Court an action cannot be brought for more than two thousand dollars. The City Court has practically no equitable jurisdiction, whereas the County Court may exercise equitable jurisdiction in certain cases. The process of the County Court runs to any county of the state. The process of the City Court is Umited. The county judge may sign certain orders in actions in the Supreme Court, but the City Court judge has no such power. Appeals from the City Court were originally taken to the General Term thereof, but the General Term having been abolished, they are now taken to the Appellate Term of the Su- preme Court. The court consists of ten justices (§ 320) and is divided into Trial Terms and two Special Terms for litigated motions and ex parte applications. 5. The Surrogate's Court. The Siu-rogate's Court, prior to 1896, was a statutory court, that is a court of Legislative creation; it has now become a court of constitutional recognition (Art. VI, § 15). The Court still remains under the control of the Legislature, being continued by the Constitution with its existing jurisdiction and powers, until otherwise pro- vided by the Legislature. By Laws 1914, ch. 443, its practice and procedure was revised and extensively amended. The court has general jurisdiction respecting the admin- istration of estates of deceased persons and over the per- son and property of infants. All proceedings relating to the probate of wills, granting of letters testamentary and of administration, payment of decedent's debts, distribu- tion of his property to those entitled thereto under his will, or under the laws of intestate succession, etc., are cogni- THE COURTS AND THEIR JURISDICTION 11 zable by the court. The procedure differs from other courts of record, and is treated hereafter. 6. The Municipal Court of the City of New York. The Municipal Court of the City of New York was created at the time of the consoUdation of New York City and the several surrounding cities. Its practice and jurisdiction is regulated by the Municipal Court Code (Laws 1915, ch. 279) which made it a court of record (id., § 1). The Municipal Court has jurisdiction wherein the sum claioaed does not exceed one thousand dollars, exclusive of interest and costs and of a character (stated generally) as follows: (1) all actions upon contract other than a promise to marry; (2) actions of tort except assault, bat- tery, malicious prosecution, false imprisonment, libel, slander, criminal conversation, seduction and enticement; (3) to estabUsh a mechanic's hen on real property and to foreclose a lien on a chattel; (4) fines or penalties; (5) to take an account between partners after dissolution; (6) to recover chattels of not more than the value of one thousand dollars; (7) summary proceedings to recover possession of real property (without limit afe to value) within the city (id., § 6). The court is divided into districts within the several boroughs. Actions must be brought in the district where one of the plaintiffs, or one of the defendants, resides, or, if a corporation, where it keeps an office or agency for the transaction of its business. If no one of the parties resides in the City, the action may be brought in any district (id., § 17). An action brought by an assignee thereof shall upon demand of a defendant, be transferred to a district in which the defendant resides. In any case, if brought in the wrong district, it may nevertheless re- main there unless defendant in writing and before or at 12 CODE PRACTICE IN NEW YORK the joinder of iasue deanands that it be transferred (id., § 17). Pleadings may be oral or in writing; if the former, then the clerk must indorse upon or attach to the summons a brief statement of the cause of action (id., § 19). The summons may be served within the Kmits of Greater New York (§ 21). Actions are tried by a Justice with- out a jury unless a jury trial is demanded by either party (id., § 1 18) . The jury is composed of six men except where the claim for damages or the value of the chattels ex- ceeds $250 when either party may demand a trial by a jury of twelve (id., § 120). 7. Justices' Courts. Justices' Courts throughout the state are given juris- diction in the main similar to that of the Municipal Court of the City of New, York but the limitation upon the amount involved is two hundred dollars (Code, §§ 2861-3). The justice hears and determines actions according to law and equity, and for that purpose where special pro- vision is not otherwise made, is vested with all the neces- sary powers possessed by the Supreme Court (§ 2868). 8. Selecting the Proper Court. Plaintiff usually may elect between several courts, for though there is a maximum juiisdictional limit, there is no minimum. What may prove, however, to be controUing is the fact that costs may be limited or denied if he sues in a higher court, when he could have brought his action in a lower. For instance, if he sues in the Supreme or County Courts, or in the City Court of New York, to recover damages for assault, battery, false imprisonment, libel, slander, criminal conversation, seduction or ma- licious prosecution and recovers less than fifty dollars damages, the amount of his costs cannot exceed the dam- THE COUETS AND THEIR JURISDICTION 13 ages. Henee where the jury returns a nominal verdict, usually six cents, he would receive six cents damages and six csats costs (§ 3228) . He is in a worse position if he sues in contract, for then he recovers no costs at all (§3228), ajid as it is provided (§ 3229) 'that the defendant is en- titled to costs when the plaintiff is not, the latter though nominally successful, must pay costs to his adversary.* This, however, only applies to plaintiff. If, for instance, he recovers nothing and the defendant recovers less than fifty dollars on a counterclaim, the defendant is entitled to costs (Smith v. Bryant, 29 Misc. 564). By subdivision 5 of § 3228, it is provided that if he brings an action in the Supreme Court triable in the County of New York, which could have been brou^t except for the amount claimed in the City Court, and in which defendant shall have been served with process, within New York County, he shall recover no costs or disbursements unless he shall recover one thousand dol- lars or more, and the same is true with respect to the Supreme Court, Kings Coimty, where the action could have been brought, except for the amount claimed, in * A peculiar illustration is shown in Goldstein v. DoUard, 176 App. Div. 413. Plaintiff sued in the Supreme Court to recover $24.56. Issue was joined and defendant defaulted upon the trial. Nevertheless defendant was permitted to tax costs amounting to $57.60 and after deducting the amount of plaintiff's recovery, judgment was entered against plaintiff for $33.04. It was said "This provision of the Code is in the nature of a penalty imposed upon the plaintiff for bringing an action in the Supreme Court, which- could just as well have been brought in a Municipal or Justice's Court, and the costs imposed in favor of the defendant are not supposed to be conmiensurate with the burden imposed upon him. The plaintiff or his attorney must have known, when the action was brought, that under the law the defendant would be entitled to costs and that the costs would amount to more than the judgment. Any hardship imposed upon this particular plain- tiff would seem, therefore, to have been self-imposed." 14 CODE PRACTICE IN NEW YORK the County Court, the limit here being five hundred dollars, and with respect to the Supreme Court, Bronx and Queens Counties, where the defendant is a resident of the county and where the action could have been brought, except for the amount claimed, in the County Court, the amount also being five hundred dollars (Henning v. Camacho, 181 App. Div. 856). There are similar provisions with respect to other courts, designed to keep the less important actions within the inferior tribunals. For instance, if an action is brought in the Supreme Court or County Court of a county in New York City or in the City Court, which could have been brought except for the amount claimed, in the Municipal Court and in which defendant shall have been served with process within the City of New York, plaintiff is entitled to no costs or disbursements unless he shall recover $250 or more. But this subdivision 5 must be distinguished from the subdivisions already quoted, for the fact that plaintiff is not entitled to costs thereunder, does not entitle the defendant to costs. The selection of the proper county will be considered later (see "Changing the Venues," Chapter XI, infra). CHAPTER III JUDGES, ATTOKNEYS, ANI> OTHER OFFICERS 1. Judges. 2. Attorneys. 3. Sheriffs. 4. Coroners. 5. Clerks. 6. Stenographers. 7. Reporters. 1. Judges. The fxinctions of a judge are exercised by ^im either at times when he is holding a stated term of court, or at times when no court is in actual session to which he is assigned. With regard to the situation in which he acts, the Judge is said to be either "in" or "out" of court. When "out" of com-t he is entitled to exercise those powers that attach to a judge by virtue of his ofl3.ce (§ 235) when "in" court he acts as a representative of the court itself. In the former case, the order which he makes, i. e. the "judge's order," is his own act pursuant to powers specially conferred upon him; in the latter, the "court order" signed by him is the direction of the court itself through its officer. This distinction is indicated by the difference in form as appears in the following: 15 16 CODE PRACTICE IN NEW YORK JUDGE'S ORDER Supreme Court of New York, County of New York. Andrew Atkins, Benjamin Beistow, Plaintiff, Defendant. Upon the annexed affidavit of Mortimer May, sworn to * the ., day of 19 , and upon motion of Charles Carter, Esq., attorney for the plaintiff, it is Ordered that the defendant show cause at a Special Term of this Court, to be held at Part I thereof, in the County Court House in the Borough of Manhattan, in the City of New York on the day of 19 , at 10.15 o'clock in the forenoon of that day or as soon thereafter as counsel can be heard, why an order should not be made (stating nature of order) and whereas it appears by the said affidavit erf Mortimer May that special and sufficient reason exists for requiring a shorter notice than five days; therefore it is Ordered that service of this order and of the affidavit whereon the same is granted, if made upon the defendant's attorney on or before the day of , shall be sufficient. DaAed the day of Edward Evans, Justice of the Supreme Court. * An affidavit is "sworn to.'' Technically only a pleading is "veri- fied." JUDGES, ATTORNEYS AND OTHER OFFICERS 17 COURT ORDER At a Special Term of the Supreme Court of New York held m and for the County of New York at Part I thereof, in the County Court House in the Borough of Manhattan in the City of New York on the day of 19 . Present — Hon. Francis Fox, Justice. Andrew Atkins, ctgai Benjamin BristoW, Plaintiff, Defendant. A motion having regularly been made by the plaintiff in the above entitled action for an order (stating nature of order) and said motion having come on regularly to be heard, now on reading and filing the order to show cause made by Mr. Justice Evans, dated the day of , and the affidavit of Mortimer May, sworn to the day of 19 , together with the affidavit of Nicholas Noyes sworn to the day of 19 , showing due service of the said order to show cause and of the affidavit whereon the same was granted; and the affidavit of Oscar Osborne sworn to the day of 19 , in opposition thereto and after hearing Charles Carter, Esq., attorney for the plaintiff in support of said motion, and Daniel Darling, Esq., attorney for the defendant opposed, and due deUberation having been had, Now on motion of Daniel Darling, Esq., attorney for the defendant, it is hereby Ordered that said motion be and the same is hereby denied with ten dollars costs. Enter, F. F. J. S. C. It will be noted that the judge's order has no caption and is signed by the full name and title of the judge, whereas the court order has a caption showing where 18 CODE PRACTICE IN NEW YORK it was made and contains a direction to "enter" being signed by the judge's initials, though frequently it is signed by his full name. A court order upon being signed, is filed and is served by delivering a certified copy. A judge's order is not filed immediately and is served by delivering a copy and exhibiting the original. In New York and Bronx Counties, judge's orders as well as other original papers in the action must be filed with the clerk with proof or admission of service not later than the day after their service (§ 1245A). Ex parte orders, i. e., orders not granted on notice are generally judge's orders as in the case of an order to show cause, though the final order made on the return is a court order. It is impossible to state any definite test by which one can determine with- out resorting to the Code, when a judge's order and, when a court order is required. If the specific Code section provides that an order may be made by "a judge" or "a judge of the Court" or "a judge of the court out of court," it is a judge's order. If it provides that it may be made by the "court " it is a court order. Court orders are the rule, judge's orders the exception. Hence unless otherwise stated, the order should be made by the court. " Except in the First Judicial Department, an order which is authorized by statute to be made at Chambers may be made by the Court" (§ 768). In order to sitnpUfy and standardize judge's orders it is directed by § 767 that "in determining a motion the court shall cause its determination, together with a re- cital of the papers read on the motion on either side, to be indorsed on or appended to the back of the motion papers and shall sign the same, and such indorsement and signature shall constitute the order of the court." The following standard form has been adopted in the first department and though it is usually used, it is provided that nothing "shall prevent the court upon the appUcation JUDGES, ATTORNEYS AND OTHER OFFICERS 19 of either party from resettling such order in the form of the written order heretofore in use (§ 767). Index number New York Supreme Court, County of New York, year 19 Term, Part Present: Hon. The following papers numbered 1 to read on this motion this day of 19 . Notice of Motion and Affidavits Annexed .... Order to Show Cause and Affidavits Annexed . Answering Affidavits Replying Affidavits. Filed Papers Commission. . Exhibits Copies Papers. Referee's Report Stenographer's Minutes . Stipulation Printed Book Upon the foregoing papers this motion is Justice. Papers Numbered Opinion filed herewith. Dated 10 J. S. C * For meaning of "index number," &c., see infra, p. 63. 20 CODE PRACTICE IN NEW YORK Plaintiff's Brief Defendant's Brief Relator's Brief Respondent's Brief Motions are considered elsewhere (p. 150). Among the powers which a court possesses, is to in- flict punishment for contempt. Contempt, of court is criminal or civil. In the first, the wrong is assxmaed to be done to the Court itself. In the latter, generally speak- ing, it is disobedience by which the right of a party is de- feated or impaired. "In the first class of contempts, punishment is imposed for the outrage on the majesty erf the law and the authority of the court, and any fine goes to the people. In the second case, the proceeding is in- stituted for the violation of the private right, and a fine is imposed to be paid to the plaintiff as indemnity for the violation of that right" (Bachman v. Harrington, 184 N. Y. 458, 461). As criminal contempts, a court may punish such acts as disorderly, contemptuous or insolent behavior, wilful disobedience or resistance to its lawful mandate, contumacious and unlawful refusal to be sworn as a witness, or to answer any legal or proper interrogatory and pubHcation of a false or grossly in- accurate report of its proceedings (Judiciary Law, § 750). It may pimish as a civil contempt "a neglect or violation of duty or other misconduct by which a right or remedy of a party to a civil action or special proceeding pending in the court may be defeated, impaired, impeded or prej- udiced." The following are instances: misbehavior, or disobedience by an attorney or officer, putting in fictitious bail or surety, any deceit, abuse of or disobedience to a mandate and refusal to attend as a witness or to answer as such; Ukewise in cases where such a proceeding "has been usually adopted and practiced" (id., §753). It is well to note that § 750 of the Judiciary Law defining JUDGES, ATT03EUSrEYS AND OTHER OFFICERS 21 orimiaaal contemjpts provides that a party joaay be punished who has been guilty of the enumerated acts and "m others," whereas §753 defining «ivil oontep.pts is broader. Thus an attorney who unlawfully retains money in his hands that justly belongs to his client is subject to con- tempt proceedings (Bowling Green Savings Bank v. Todd, 52 N. Y. 489) and so is a referee who unlawfully refuses to ap{^y the purchase money of mortgaged preniises and to execute a deed as directed (Pec^le ex rel. Day v. Bergen, 53 N. y. 404). A common illustration is the non-payment of alimony 413). Of course this and the preceding section are merely rules of pleading not rules of proof. If the allegation is controverted, the pleader must es- tabUsh it at the trial. (V) Instrument for Payment of Money Only. 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 and state that there is due a specified smn (§534). This, however, is not manda- tory. The pleader may allege the facts in detail as in other actions on contract if he does not wish to avail himself of this abbreviated form of pleading. But the section is not apphcable where the liability of the de- fendant is conditional and depends upon facts outside the instrument, for in such cases, the facts must be averred. Thus a complaint is defective which merely sets forth a copy of an order upon defendant requesting him to pay plaintiff a sum specified "out of moneys to be realized from the sale" of certain houses, and alleges an acceptance by defendant, a payment of a portion of the sum and that the balance was due. A sale of the houses and the receipt of the money were conditions precedent to defendant's liabihty and should have been averred (Tooker v. Arnoux, 76 N. Y. 397). So in suing an in- dorser, it would be necessary to allege presentment, notice, etc., or to show an excuse why these conditions for liability were not complied with. 104 CODE PRACTICE IN NEW YORK (VI) Libel and Slander. In libel and slander actions plaintiff may allege that the defamatory matter was published or spoken concerning him without setting forth any extrinsic fact from which its application to him would appear, though, of course, if the allegation is con- troverted he must estabUsh it on the trial (§ 535). This aboUshes the common law rule requiring the allegation of extrinsic facts, showing the appUcability of the defam- ation to plaintiff where such applicability was latent (cf. Miller v. Maxwell, 16 Wend. 9). It does not, however, do away with the necessity of pleading special facts where the latency is as to the defamatory nature of the charge, nor does it eUminate the innuendo where it is necessary to point out the defamatory sense in which the language was understood (Van Heusen v. Argenteau, 194 N. Y. 309; see Chapin on Torts, pp. 300-303). Furthermore, a general allegation that the publication was of and con- cerning plaintiff wiU not aid him where this is contradicted and rendered nugatory by other allegations showing that in fact it was not of and concerning him (Corr v. Sun Printing and Pub. Assn., 177 N. Y., 131; Fleischmann V. Bennett, 87 N. Y. 231). The defendant in actions of this character is permitted to allege and prove mitigat- ing circumstances, notwithstanding that he has already pleaded a justification (§ 535). This is in liae with the code policy of permitting him to set up inconsistent de- fenses. In pleading a justification it is the general rule that defendant should set up the facts constituting it. He should not plead generally that the charge is true or merely deny that it is false (Brush v. Blot, 16 App. Div. 80). But there is an exception to this rule in cases where the charge is specific, i. e., a charge that plaintiff is a thief can be met only by a definite averment of certain instances of larceny, but "a charge that the defendant (sic) on a day and at a place named took specified articles RAISING THE ISSUES 105 of personal property under such specified circumstances as to justify the conclusion that the taking was wilful and a larceny," may be met by a general allegation as to the truth of the specified statements of fact in the com- plaint (Bingham v. Gaynor, 203 N. Y. 27. See Chapin on Torts, pp. 319-322, 341-344). Mitigating circumstances may also be coupled with defenses to the entire cause of action in other cases, i. e., breach of promise to marry, personal injuries or injuries to property (§ 536). (VII) Corporations. There are certain important pro- visions apphcable to corporations. For instance, the com- plaint must aver that plaintiff or defendant, as the case may be, is a corporation, whether it is domestic or foreign, and if the latter, the state, country or govern- ment under whose laws it was created (§ 1775). Plain- tiff then need not prove on the trial the existence of the corporation unless the answer is verified and contains an affirmative allegation that plaintiff or defendant, as the case may be, is not a corporation (§ 1776). Note there- fore that the corporate capacity of the party is not put in issue by a mere denial. There must be an "affirmative allegation" (Concordia Savings & Aid Assn. v. Read, 93 N. Y. 474; Stroock Plush Co. v. Talcott, 129 App. Div. 14). Furthermore the answer must be verified. Misnomer of a corporation is waived unless specially pleaded (§ 1777). "This defense is technical, and if a defendant wishes to avail himself thereof, he must raise the question by such an unequivocal allegation in his answer as will clearly apprise the plaintiff of the point raised, so that the plaintiff may make the proper correc- tion by amendment or otherwise" (Associate Presbyterian Congregation v. Hanna, 113 App. Div. 12,' 14). In an action against a corporation on a promissory note or other evidence of debt for the absolute payment of money, the defendant must serve with a copy of his 106 CODE PRACTICE IN NEW YORK answer or demurrer, a copy of an order "directing that the issues presented by the pleadings be tried." If this is not done, plaintiff may take judgment as in cases of default when the time has expired within which such answer or demurrer might have been served (§ 1778). This section, however, "is to be confined strictly to actions upon instruments which admit on their face an existing debt payable absolutely." It has no application to a debt which may grow out of a happening or contingency and the due performance of conditions. Hence it cannot be invoked in an action on an insurance poKcy (N. Y. Life Ins. Co. v. Universal Life Ins. Co., 88 N. Y. 424), or against a corporation as indorser of a promissory note (Shorer v. Times Printing & PubUshing Co., 119 N. Y. 483). 9. Extending the Time- It may be that the party has been unable to prepare a pleading within the time fixed and desires an extension. Usually his opponent is willing to stipulate to this effect as a professional courtesy. As has already been stated, the court will not recognize oral understandings (Rule XI) and in drawing a stipulation it is well to safeguard the rights of the party accommodated by clear and specific language. The usual form where defendant is likely to be in default is as follows: Titk. It is hereby stipulated that the time of the defendant to answer, demur or otherwise to move herein be extended twenty days from the day of , 19. Dated the . day of , 19. Chakles Cabter, Attorney for plaintiff. Daniel Darling, Attorney for defendant. RAISING THE ISSUES 107 If, however, a stipulation is refused then an appUcation must be made to the court. The application may be ex parte unless the party's time has previously been extended by stipulation or order for twenty days in which event two days' notice of motion must be given. Whether it be ex parte or on notice, an affidavit of merits must be presented by the attorney or counsel which in addition to the formal facts already mentioned * must also state the cause of action and the relief demanded in the com- plaint, and where a counterclaim has been interposed, the cause of action alleged as a counterclaim and the relief demanded in the answer; and whether any and what extensions of time by stipulation or order have been granted (Rule XXIV). It should also be kept in mind that when an appUcation is ex parte, the affidavit must state whether any previous appUcation has been made for such order and if so made, the particulars with re- spect thereto (Rule XXV). It is, specially provided by § 1778 that in an action against a corporation to recover damages for the non-payment of a promissory note or other evidence of debt for the absolute payment of money, an order extending the time to answer or demur shall not be granted except upon notice. 10. Amendment of Pleadings. Where a party has made a mistake he may amend his pleading as a matter of right within twenty days (six days in the City Court) after the pleading or the answer, de- murrer or reply thereto is served or at any time before the period for answering has expired. This may be done once and as a ma,tter of right unless the amendment was for the purpose of delay (§ 542). This right may prove very valuable. For instance, suppose plaintiff has served a complaint and defendant has demurred. Plaintiff may * See p. 100, and note. 108 CODE PRACTICE IN NEW YORK serve an amended complaint within twenty days from the time the demurrer was served and thus possibly correct his previous error.* So an answer may be amended after a demurrer thereto has been interposed. But note the difference between a demurrer and a motion for judgment on the ground that the pleading is frivolous or a motion to strike out on the ground that it is sham. The service of a demurrer automatically extends the time, but there is no extension given by a motion, for then the time to amend dates from the service of the pleading. It would seem that defendant cannot under this section as of right, substitute an answer for a demurrer or \dce versa, since thereby he presents a different issue, viz., one of fact for one of law or one of law for one of fact (Cashman V. Reynolds, 123 N. Y. 138) . Furthermore the amendment as of right may be made once only. Thus where an answer is served and then an amended answer and then a demurrer to the amended answer, defendant may not without leave granted, serve another amended answer. It was said in OrUk V. National Carbon Co., 176 App. Div. 600, 601. " The significant and controlling word in the section is the word 'once.' It defines the extent to which the privilege of amendment under it may be carried. A party may amend his pleading as of course once and once only. If amendment be found necess^iry more than once, leave must be obtained. This amendment of course may be at any one of several times either within twenty days after he has served his pleading, or within twenty days after the answer, demurrer or reply is served, or at any time before the time for answering expires, but if once * This brings to mind the story of the student who was asked by the bar examiners "what are the pleadings in an action?" and wlio answered: "Complaint, demurrer, amended complaint — ^well, that is always the way it is in our office." RAISING THE ISSUES 109 made at any one of the times specified the right is ex- hausted and no further amendment can be made by vir- tue of it. It is true that if the plaintiff amends his complaint after the defendant has once amended his answer as of course, the right to once amend the answer to the amended complaint will revive, for the amended complaint takes the place of the original complaint and the action will proceed as if the original complaint had never been served (Brooks Brothers v. Tiffany, 117 App. Div. 470), but that rule has no application to the present case, for the complaint has never been amended." If the time has passed or a new issue is tendered or if the plead- ing has already been amended, an application must be made to the court which is given the power to amend at any time (§ 723). The section just cited permits the court to direct that the case retain its place upon the calendar. It has been held "proper to impose such a condition as this upon a party who asks a favor, as where a defendant seeks to amend his answer, but not to im- pose it as a condition upon the party against whose opposition a favor is granted to his adversary" as where plaintiff seeks an amendment of his complaint. Nor may the amendment be allowed except on condition of paying costs where the case is about to be reached for trial and it is proposed to change completely the cause of action (Bertman v. Neisner, 177 App. Div. 442). 11. Variances. If when the case comes to trial there is a variance not material, between the allegations and the proof, the court may direct the fact to be foimd according to the evidence, or may order an immediate amendment (§ 540). A variance is not material unless it has actually misled the adverse party to his prejudice and if he insists that he has been misled, he must prove it to the satisfaction 110 CODE PRACTICE IN NEW YORK of the court (§ 539). For instance, one who sues on the theory of an agreed compensation for services may re- cover on quantum meruit where he estabUshes facts sufficient to warrant it (Sussdorff v. Schmidt, 55 N. Y. 319; Rubin v. Cohen, 129 App. Div. 395). So there may be a recovery for permissive waste in suffering a building to be burned, although the complaint charges voluntary waste by wrongfully setting fire to it (Robinson v. Wheeler, 25 N. Y. 252). But on the other hand, if the allegation is unproved at the trial, "not in some particular or par- ticulars only but in its entire scope and meaning, it is not a case of variance" but it is a failure of proof (§ 541), and hence beyond the power of the court to obviate by amendment. Thus where the complaint is framed on negligence, a recovery cannot be had for nuisance (Kipp V. N. Y. C. & H. R. R. Co., 89 App. Div. 392), or where framed in trespass and negUgence is estabhshed (Gordon V. EUenviUe & K. R. Co., 195 N. Y. 137), or where the gravamen of the action is fraud, and the evidence shows breach of contract (Barnes v. Quigley, 59 N. Y. 265). Where the complaint states a cause of action ex delicto it may not be converted at the trial into one ex con- tractu (Neudecker v. Kohlberg, 81 N. Y. 296), though it has been held that if it sets forth facts constituting a cause of action on either the tort or contract theory and there is nothing in the complaint to show on which theory plaintiff sues, he will be permitted to recover such a judgment as is warranted by the facts proved (Conaughty V. Nichols, 42 N. Y. 83). Where the complaint sets forth a cause of action in equity which is not proven at the trial, the court cannot, without an amendment of the pleadings, award the plaintiff damages as in an action at law. It was here said: "There is some confusion in the cases bearing upon this subject, but the weight of authority is that where some ground RAISING THE ISSUES 111 of equitable jurisdiction is alleged in a complaint but fails of proof in its entire scope on the trial, and it appears that there never was any substantial cause for equitable interference, the court will not retain the action and grant purely legal relief, but will dismiss the complaint" (Jackson v. Strong, 222 N. Y. 149, 153). 12. Supplemental Pleadings. The court may permit a party to make a supplemental pleading allegiag material facts which occurred after his former pleading or of which he was ignorant when it was made (§ 544). A supplemental differs from an amended pleading in that the supplemental is La addition to the original so that the two together constitute a complete pleading. But an amended pleading takes the place of the original, superseding it, and the action will proceed as if the original pleading had never been served (Brooks Bros. V. Tiffany, 117 App. Div. 470; Lewis v. Pollack, 85 App. Div. 577). If the pleader has erroneously stated his facts he must amend. If facts have occurred subse- quent to the service of the pleading, a supplemental pleading is necessary, as where a defendant in an action of partition or foreclosure has died, leaving children or other heirs. A supplemental pleading caimot be served as of right. An order is necessary which the court will almost invariably grant. But it has no power to allow a supplemental pleading setting forth acts of the defendant subsequent to the commencement of the action and seeking to recover damages therefor, for which an in- dependent action might have been brought (Park & Sons v. Hubbard, 198 N. Y. 136). 13. Motions to Strike out and for Judgment — Frivolous Pleadings — Sham Defenses. Irrelevant, redundant or scandalous matter may be stricken out upon the motion of a person aggrieved 112 CODE PRACTICE IN NEW YORK (§ 545). Irrelevant matter has no material bearing on the issue whUe redundant matter is useless repetition. An indefinite or uncertain denial or allegation may be ordered to be made de^ite and certain by amendment, when its precise meaning or application is not apparent (§ 546). Motions to strike out irrelevant, redundant or scandalous matter and to correct indefinite pleadings must be noticed before demurring or answering the pleading, and within twenty days from its service (Rule XXII). Bearing close anology to a demurrer is the motion on the pleadings which may be made at any time after issues joined (§ 547). The object is to obviate a delay in waiting for the case to be reached upon the calendar for trial (Ellenbogeh v. Slocum, 66 Misc. 611). As in the case of a demurrer, the party whose pleading is found to be insufficient may be permitted to amend upon proper terms (Schleissner v. Goldsticker, 135 App. Div. 435). At this point it may be well to repeat that the pleading may be tested by (1) a demurrer brought to trial as an issue of law under §§ 963, 965 & 969; (2) a demurrer brought on as a contested motion imder § 976 or (3) by a motion for judgment under § 547 (Kramer v. Earth, 79 Misc. 80). If a demurrer, answer or reply is frivolous, the party prejudiced thereby may apply for judgment (§ 537) and a sham answer or sham defense may be stricken out (§538). The difference is that a frivolous pleading is one so clearly and palpably bad as to require no argument or illustration to show its character (Strong v. Sproul, 53 N. Y. 497), while a sham answer or defense is one that is false. A frivolous pleading, imlike a sham answer or sham defense, is not stricken out but remains upon the record and becomes a part of the judgment roU (Briggs V. Bergen, 23 N. Y. 162). The pleading must be friv- RAISING THE ISSUES 113 olous as a whole, since the court has no power to act where a part is good and there are issues remaining to be tried (Strong v. Sproul, supra). As akeady stated, a pleading in order to be frivolous must be palpably bad. The defect must appear on mere inspection. If there is any room for argument, its suffi- ciency cannot be determined in this manner (Cook v. Warren, 88 N. Y. 37). It will be observed that only sham answers or sham defenses can be stricken out, hence such a procedure cannot be adopted with respect to demurrers or counterclaims. Nor will an affirmative defense when duly verified, be stricken out unless the defendant's own affidavits show that it is false, since the court will not try the case on affidavits (Smith v. Homer, 15 Misc. 403; AtldengeseUschaft, etc., v. Newmark, 65 Misc. 51). It has been said that a court is not justified "in striking out as sham, denials of material portions of the complaint in an action at law whereby the general issue was raised as to such allegations, whether the denials are absolute, upon information and beUef, or upon an allegation that the defendant has not knowledge or information sufficient to form a belief as to the truth of such allegations. It has been the universal rule since Wayland v. Tyson (45 N. Y. 281), and Thompson v. Erie R. Co. (id. 468), that 'A verified answer which interposes a general denial to the complaint is tantamount to a plea of the general issue under the former system of practice at law; that such answer gives to the defendant the right to require the plain- tiff to estabhsh by proof all the material facts necessary to show his right to a recovery; and that it cannot be stricken out as sham although shown by affidavits to be false,' and that the same rule applies when the answer denies a material allegation of the complaint" (Schlesinger V. McDonald, 106 App. Div. 570). But this would seem not altogether correct. A denial of knowledge or infor- 114 CODE PRACTICE IN NEW YORK mation sufficient to form a belief as to matters of public record open by law to everybody may be tested by a motion to strike out (Harley v. Plant, 210 N. Y. 405), and where the denial is incredible as matter of law, as where a party denies knowledge or information concerning acts of importance done or participated in by him bui two years before, it may be treated as frivolous and judg- ment entered on the pleadings (Dahlstrom v. Germimder, 198 N. Y. 449; cf. Kirschbaum v. Eschman, 205 N. Y. 127) . At all events, since it is very rare that sham defenses can be stricken out, § 538 has but little practical utility. CHAPTER IX PROVISIONAL REMEDIES 1. In General. 2. Arrest. 3. Injunction. 4. Attachment. 5. Receivers. 6. Replevin. 1. In General. In order to preserve or protect his rights during the pendency of the action, plaintiff may invoke what are termed provisional remedies, namely (1) arrest, (2) in- junction, (3) attachment, and (4) appointment of a tem- porary receiver. These same lemedies are available to a defendant who interposes a counterclaim, upon which he demands an affirmative judgment (§ 720). It is pos- sible to apply for all or any of these forms of reUef, but where appHcation for an arrest, an injunction or an at- tachment, or two of them is made ia the same action against the same defendant, and it appears that two or aU of them are not necessary for the appUcant's security, he may be required to elect between them (§ 719). An- other remedy of somewhat similar character and purpose is the writ of replevin. 2. Order of Arrest. The Code makes a division between suits at law and in equity. The former are governed by § 549, the latter by § 550. At law there is a right to arrest where the action is brought (1) to recover a fine or a penalty; (2) to re- cover for a personal injury or injury to property, includ- 115 116 CODE PRACTICE IN NEW YOBK ing the wrongful taking, detention or conversion of per- sonal property; breach of promise to marry, misconduct or neglect in office or professional employment; fraud or deceit; to recover a chattel where the complaint charges that the chattel has been wrongfully concealed, removed or disposed of; for money received or to recover property or damages for its conversion or misapplication where the complaint charges receipt, embezzlement or fraudulent misapplication by a public officer, attorney, agent or other fiduciary; (3) to recover moneys or property held or owned by the state or a municipal or other public corporation, board, etc., which defendant has wrong- fully obtained, received, converted or disposed of, (4) in an action on contract where the complaint charges fraud in contracting or incurring the liability or a subse- quent fraudulent removal or disposition of the property actual or contemplated. In equity actions where the judgment demanded re- quires, the performance of an act, neglect or refusal to perform which would be punishable as contempt, an order of arrest may issue as a substitute for the old writ of ne exeat which has been abolished, where the defendant is a non-resident, or being a resident is about to depart from the state so that there is danger that the judgment or order will be rendered ineffectual. The following should be noted with respect to actions at law. If brought to recover a chattel, its concealment, removal or disposition and the defendant's wrongful intent must he alleged in the complaint; if for the recovery of money or property received or misapphed by a public officer, attorney, agent or other fiduciary, the fiduciary relationship must be so alleged; and in contract cases there must be an allegation likewise in the complaint that defendant was guilty of fraud in contracting or incurring UabiUty or that he has removed or disposed or is about PROVISIONAL REMEDIES 117 to remove or dispose of his property with intent to de- fraud his creditors. Plaintiff cannot recover unless he proves the allegations " at the trial, and a judgment for defendant is not a bar to a new action to recover money or chattel or on the contract (§ 549). The fact that plaintiff has already recovered judgment in a court outside of the state, for the same cause of action, or where the action is founded on fraud, for the price or value of property obtained thereby, will not prevent him from securing defendant's arrest (§ 552). He should bring suit on the judgment and not on the original cause of action, though of course, the latter must be set forth by affidavit so that it wiU appear that an order of arrest could have been granted in this state. (Baxter v. Drake, 85 N. Y. 602). Certain persons are privileged from arrest. A woman is exempt, except in the equity actions mentioned and in actions at law to recover damages for wilful injury to person, character or property (§ 553). A lunatic, idiot or infant under 14 years may be discharged in the court's discretion (§ 554), and a person sued in a representative capacity cannot be arrested except for his personal act (§ 555) . An officer of a court of record is privileged during an actual sitting which he is required to attend, also an attorney if employed in a cause to be heard at that term (Civil Rights Law, § 24). A witness in good faith subpoe- naed or ordered to attend (Civil Rights Law, § 35), and a member of the active militia, (Military Law, § 235), may not be arrested while going to, remaining at or returning from the place where he is required to attend. The application for an order of arrest is made on affi- davits. A verified complaint is almost invariably sub- mitted and is probably essential in the cases just enumer- ated where § 549 requires certain allegations to be made therein (Engelhardt v. Benjamin, 2 App. Div. 91. But 118 CODE PRACTICE IN NEW YORK see Lewis v. Pollack, 85 App. Div. 577). In procuring this order a party is held to strict practice. "Statutes authorizing arrest and imprisonment for debt, although remedial in that they are designed to coerce by means of the imprisonment the payment of the creditor, are also regarded as penal and ought not to be extended by con- struction so as to embrace cases not clearly within them" (Hathaway v. Johnson, 55 N. Y. 93, 95). Hence great care must be exercised in preparing the papers. For in- stance, an allegation merely on information and belief is regarded as a nuUity. It shows nothing imless the sources of the information and the groimds of the beUef are stated. Furthermore, sources and grounds must be satisfactory. For instance, an affidavit was held insufficient when made on information and belief, the source being a cablegram addressed to aflfiant, a German Consul, and agent of the plaintiff, signed "Acting German Consul Struve" when the cablegram did not disclose, nor did the affiant state that the sender had any knowledge of the facts (Banque Agricole p. Ungureanu, 53 App. Div. 254). So where sources or grounds consist of letters, telegrams or other documents, the originals or sworn copies should be aimexed or set forth, for "deductions made by an affiant from papers which he fails to produce have no probative force because such deductions arp the mere conclusions of the affiant, and it is a question for the court to deterxnine from the papers as to whether such conclusions are prop- erly drawn which it cannot do in their absence " (Bums V. Boland, 70 App. Div. 555). The sufficiency of the affi- davit will be discussed later when the remedy of attach- ment is considered. A verified complaint may be treated as an affidavit and considered with other affidavits (Pahner v. Hussey, 59 N. Y. 647). In actions at law except where brought to recover public funds or property, a written undertaking is re- PROVISIONAL REMEDIES 119 quired with two siireties to the effect that if defendant recovers judgment or if it is finally decided that plaintiff was not entitled to the order of arrest, the plaintiff will pay costs and damages not exceeding the sum specified which must be at least equal to one-tenth the amount of bail required and not less than $250 (§ 559). In equity actions the court may require or dispense with security (§ 560). In practice it is very rarely dispensed ■wdth. The order of arrest in actions at law is made by a judge (§ 556), in equity actions by the court (§ 551). It must briefly state the grounds on which it is granted (Rule XIII) and require the sheriff to arrest defendant, to hold him to bail in a specified sum (it is the practice to leave a blank space in the proposed order to be filled in by the judge or court) and return the order with his proeedings thereunder. It must be subscribed by plaintiff's attorney (§ 561). When the sheriff makes the arrest, he must serve defendant with copies of aU the papers (§ 562). Plaintiff must then proceed with diligence. He must not delay in bringing his case to trial or in entering judg- ment or issuing execution under penalty of losing his right to hold the defendant (§ 572). Defendant when arrested may move to vacate the order of arrest or to reduce the amount of bail or to increase the security given by plaintiff or for one or more of these forms of rehef, together or in the alternative (§ 567). The motion may be founded upon the papers on which the order was granted, or it may be upon affidavits submitted by defendant. If upon the original papers submitted by plaintiff, the appHcation must be made to the court or to the judge who granted the order and may be ex parte or on notice (§ 568). In New York City it is the usual practice to bring on the motion by notice or order to show cause. In the smaller cities and towns an 120 CODE PRACTICE IN NEW YORK informal notice is frequently given, e. g., by telephone. If the motion is upon new papers submitted by defendant, notice is essential and the application may be made to the court or if it is a judge's order to any judge. On the hearing, plaintiff may submit in opposition, new affidavits tending to sustain any ground of arrest recited in the order and no other unless defendant reUes upon a discharge in bankruptcy or insolvency in which case plaintiff may show matter in avoidance (§ 568). The defendant has the privilege of giving bail or of depositing the sum named in the order of arrest. This he may do at p,ny hour of the day or night and he must be given a reasonable oppor- tunity to Seek bail before being committed to jail (§ 573). The bail who must be at least two in number, imdertake in equity cases, that the defendant will obey the direction of the court to perform the specified act or in default of so doing that he will render himself amenable to con- tempt proceedings; in actions to recover a chattel that he will deliver to the plaintiff if delivery is adjudged and will pay any sum recovered against him; and in other cases that he will render himself amenable to any mandate issued to enforce final judgment (§ 575). Each of the bail must be a resident of and a householder or free- holder within the state (§ 579, subd. 1). It has been held that one who leases a portion of a building whether as a place of residence or of business, e. g., one who rents an office, is a householder (Somerset & W. Sav. Bk. v. Huyck, 33 How. Pr. 323). Each must be worth the sum specified in the order of arrest exclusive of property exempt from execution (§ 579, subd. 2). The procedure in procuring defendant's discharge is as follows: The undertaking is delivered to the sheriff who may require the officer taking the acknowledgment to examine the proposed bail to a reasonable extent con- cerning their property and circumstances (§ 576). In PROVISIONAL REMEDIES 121 practice, the sheriff always does this before he accepts a bail bond for the very good reason that he remains liable. Then within three days he delivers to plaintiff's attorney, certified copies of the order of arrest, return and undertaking. If plaintiff's attorney does nothing, he is deemed to have accepted the bail and the sheriff is exonerated from liability. But if within ten days plain- tiff's attorney serves a notice that he does not accept (§ 577) the sheriff or defendant may serve a notice of justification, i. e., that the bail will attend before a judge at a specified time and place for examination as to their sufficiency (§ 578). If upon the examination, the judge finds the bail sufficient, he annexes the examination to the undertaking, indorses his allowance thereon (e. g., "I find the bail mentioned in the within undertaking to be sufficient and hereby allow the same") and causes them to be filed. The sheriff is then exonerated (§581). If the bail refuse to justify they become liable to the sheriff for aU damages sustained by him (§ 589) . In theory the defendant is handed over to the custody of the bail who may surrender him, except where the action was brought to recover a chattel (§ 591). This is done in the following manner. The bail take the defend- ant to the sheriff and require him in writing to take de- fendant into custody. A certified copy of the undertaking is delivered to the sheriff who gives a certificate acknowl- edging the sun'ender. An order is then made discharging the bail (§ 592) . The bail may themselves arrest the defendant or empower another person to do so (§ 593). Defendant may surrender himself (§ 591) when a similar procedure is followed (§ 594) . In case of default on their undertaking, suit is brought against the bail (§ 596). But the plaintiff must first exhaust his remedies against the defendant (§ 597) with reasonable diligence (§ 599). The bail may be exonerated 122 CODE PEACTICE IN NEW YORK if the defendant is imprisoned upon a criminal charge or conviction (§ 600) or, except where- the action was brought to recover a chattel, if he dies, is discharged or is surrendered (§ 601) . It has already been said that defendant may be dis- charged upon depositing the sum specified in the order of arrest (§ 573). The sheriff thereupon gives him a cer- tificate (§ 582) and pays the money into court (§ 583). If the defendant wish, he may substitute bail for his deposit (§584). In lieu of the methods already described, the defendant may give a bond for the liberties of the jail (§§ 149, 574). To determine their extent, resort must be had to the Prison Law (§§357-359). For instance, in each of the counties of New York, Bronx and Kings, the jail limits are the whole of the county. The undertaking is con- ditioned that the defendant shall not escape or go outside of the fixed territory (§ 150). 3. Injunction. Injunctions are temporary (sometimes termed "in- junctions pendente lite") or final. The Code provisions concern only the former, for the granting of permanent injunctions contained in final judgments is governed by general equitable principles. On the other hand, it is well settled that a court of equity has no inherent ab- solute power to grant an interlocutory injunction but that authority therefor must be found in § 602 and suc- ceeding sections (Bachman v. Harrington, 184 N. Y. 458). The old writ of injunction has been abolished and a tem- porary injunction is now granted by order in two cases. (a) Where the right depends upon the nature of the action. (b) Where the right depends upon extrinsic facts. In (a) it must appear from the complaint that the PROVISIONAL REMEDIES 123 plaintiff demands and is entitled to a judgment restraining the comniission or continuance of an act, the commission or continuance of which during the pendency of the ac- tion would produce injury to the plaintiEf (§ 603). In these actions which are, of course, in equity, plaintiff seeks a permanent injunction and not only should the complaint contain allegations sufficient to show his right to such ultimate relief, but it should also be made to appear that temporary relief during the pendency of the action is necessary. In Class (b) it should appear by affidavit that the defendant during the pendency of the action is doing, procuring or suffering to be done or threatens, is about to do, procm-e or suffer to be done an act in violation of the plaintiff's rights respecting the subject of the action and tending to render the judgment ineffectual or threatens or is about to remove or dispose of his property with intent to defraud the plaintiff (§ 604) . Here the action may be at law. When applying for an injunction, plaintiff should, of course present a summons unless service has already been made. In the equitable actions mentioned in class (a) a complaint is essential (Himtington v. Cortland Home Tel. Co., 62 App. Div. 517), which must show a right to relief (McHenry v. Jewett, 90 N. Y. 58). A defective complaint cannot be helped out by affidavits (Heine v. Rohner, 29 App. Div. 239). Facts must be stated not conclusions only. For instance, "the mere allegation of great or irreparable injury apprehended or threatened which is not supported by facts or circumstances tending to justify it, is clearly insufficient " (Brass v. Rathbone, 153 N. Y. 435, 442). The wrong or apprehended injury- must be substantial, not merely technical (Knoth v. Man- hattan Ry. Co., 187 N. Y. 243). In class (b) A complaint is not essential though very desirable. The application may be made on affidavits only. 124 CODE PRACTICE IN NEW YORK In both classes, however, a complaint will be sufficient without an accompanying affidavit although §§ 604 & 607 state that the latter is required, for § 3343, subd. 11, provides that as used in the Code the word "affidavit" shall be deemed to include a verified pleading. "When a complaint is thus used, however, the evidential force of it must be tested by the same rule that is apphed to other affidavits, which is that only such allegations as are sworn to positively, or if stated on information and beUef, where the source of the information and grounds of the belief are given, can be taken as true" (Clark v. King & Bro. Pub. Co., 40 App. Div. 405, 407). An ob- servance of this rule is likely to make the complaint very voluminous and it is better in every instance, in both classes, to submit complaint and accompanying affidavits. The injunction order may be granted either by the court or by a judge (§ 606) to accompany the summons or at any time after the comaiencement of the action and before final judgment (§ 608). It may be granted upon or without notice unless defendant has answered, in which case it must be upon notice or by order to show cause. Notice is also required where the injunction restrains a state officer or board from the performance of a statutory duty ( §605), likewise when it suspends the general and ordinary business of a corporation or joint-stock associa- tion consisting of seven or more members, or suspends an officer thereof or restrains him from the performance of his duties and here the order must be made by the court (Genl. Corp. Law, § 305, Code § 1809). Even in cases where notice is not required, the practice is to apply for an order to show cause, since therein the defendant may be enjoined until the hearing and decision of the application (§ 609) . The injunction order must briefly recite the grounds on which it was granted (§ 610, PROVISIONAL REMEDIES 125 Rule XIII). When made by the court it is served by delivering a certified copy, when made by a judge, by showing the original order and delivering a copy. Copies of the papers upon which it was founded must be delivered at the same time (§ 610). To obtain an injunctiom, as is the case with other provisional remedies, it is necessary to give security. The undertaking, generally speaking, must be executed by the applicant or by one or more sureties as the court or judge directs, to the effect that plaintiff will pay to the party enjoined, such damages, not exceeding a sum spec- ified, as he may sustain by reason of the injunction, if the court finally decides that plaintiff was not entitled thereto (§ 619). This affords a much needed protection to the defendant since if security is not given he has no remedy for any damages which he may sustain unless the conduct of the plaintiff has been such as to give ground for an action for maUcious prosecution, which means, of course, that there would be no redress at all unless plaintiff had acted maUciously and without prob- able cause (Palmer v. Foley, 71 N. Y. 106). The damages sustained by reason of the injunction may be ascertained sTxmmarily by the court, on a reference, by writ of inquiry or otherwise and the decision is conclusive as to the amount (§ 623). An action may then be brought against the sureties (§ 625). An injunction may be vacated or modified, the practice being similar to that followed in other cases. If the order was itself granted without notice, the application may be made upon the original papers either with or without notice. If ex parte it should be to the judge who granted the order or who held the term where it was granted or to a Term of the Appellate Division, unless by reason of the absence or other disability of the judge, the appli- cation cannot be made to him and the applicant will be 126 CODE PRACTICE TN NEW YORK exposed to great injury by the delay required for an application on notice (§ 626). An application to vacate or modify may also be made on affidavits submitted by defendant who may in addition urge the insufficiency of the original papers. Here notice is required. At the hearing the plaintiff may submit affidavits tending to sustain the injunction in opposition to those submitted by defendant (§ 627) . Where an appUcation has been made only upon the original papers, defendant may again apply on affidavits and the granting or denial of either application will not prejudice one subsequently made, founded on the failure of a complaint which had not been made at the time of the former application to set forth a sufficient cause of action (§ 628) . It will be observed that only when the injunctioa order was granted without notice can an ex parte application be made to vacate or modify and then only on the original papers and to the same judge or term. In practice, notice is almost invariably given, usually by means of an order to show cause. At a heariag upon notice a new under- taking may be required (§ 629).. Suice 1911, defects or insufficiencies may be cured nunc pro tunc (§ 768). 4. Attachment. This is probably the most important of the provisional remedies. At all events, it is the one to which resort is most frequently had. The plaintiff causes the defendant 's goods to be seized and held to abide the event of the ac- tion. In some states, the right is granted in practically every action, but in New York it is allowed only in re- stricted cases being chiefly those mentioned in § 635, upon establishing the facts required by § 636. Under the former, an attachment may be granted where the action is to recover a sum of money only, as damages for one or more of the following causes. PROVISIONAL REMEDIES 127 1. Breach of contract, express or implied, other than a contract to marry. 2. Wrongful conversion of personal property. 3. Injury to person or property in consequence of neghgence, fraud or other wrongful act. 4. A wrongful act, neglect or default by which a de- cedent's death was caused, when the cause of action arose in this state. It will be observed that the action must have been brought "to recover a sum of money only." Hence suits purely in equity do not come within the meaning of the section, e. g., to declare a trust in certain land, to compel a conveyance and to force a trustee to account and pay over the balance found to be due (Thorington v. Merrick, 101 N. Y. 5) ; though it is otherwise where the trust has been closed and settled and the balance in the hands of the trustee is ascertataed (Van Camp v. Searle, 147 N. Y. 150). In other words, an attachment will not be refused merely because equitable reUef is sought, provided that judgment is asked for the recovery of money only (Avery ?;. Avery, 52 Misc. 297). An attachment cannot issue against a national bank (Pacific Natl. Bank v. Mixter, 124 U. S. 721; Bank of Montreal v. FideUty National Bank, 1 N. Y. Supp. 852; affmd. 112 N. Y. 667). When appUcation for an attachment is made the plain- tiff must show that one of the above causes of action exists agaiast defendant (Makepeace v. Dilltown Smoke- less Coal Co., 179 App. Div. 60), and if the action is to recover damages for breach of contract, that the plaintiff is entitled to recover a sum stated over and above all counterclaims known to him (§ 636). This allegation is absolutely essential. If the claim has been assigned, a statement that the plaintiff is entitled to recover a speci- fied sum over and above all counterclaims 'known to him 128 CODE PRACTICE IN NEW YORK is sufficient. An allegation is not required that he is en- titled to recover said sum over and above all counter- claims known to his assignor (McMahon v. Roseville Trust Co., 159 App. Div. 640). It is not essential that the claim be exact in amount, since such a requirement would nullify the code provisions and might, in many- instances, prevent the writ from issuing, as in actions for goods sold and delivered or for conversion where plain- tiff is compelled to rely upon an averment or estimate of value (Roth v. American Piano Mfg. Co., 35 Misc. 509; Schreiber v. Gem Stopper Co., 168 App. Div. 60). But the damages must be stated with sufficient precision and where they are imliquidated, plaintiff must set forth the proper evidentiary facts so that it may appear that the allegations of damage are not mere matter of specu- lation (Ingalls Stone Mfg. Co. v. Nunn, 136 App. Div. 142; Bloomingdale v. Cook, 35 App. Div. 360; Tennant Sons & Co. V. New Jersey, 0. & M. Co., 78 Misc. 497). Plaintiff must also show that defendant is a foreign corporation or a non-resident, or if a resident, that he has departed with intent to defraud creditors or to avoid service of summons or keeps himself concealed with like intent or has removed, assigned, disposed of or secreted property with intent to defraud creditors or is about to do so, or has made a false statement in writing concerning financial responsibility for the purpose of procuring credit or extension of credit, or being a resident, has been continuously without the state for more than six months without making a designation of a person on whom to serve a summons, or such designation is not in force, or service upon the person designated cannot be made after diligent effort (§ 636). In considering residence it is well to note that the word is not used in the sense of legal domicile, i. e., one may be a non-resident, although he has his domicile within the state (Haggart v. Morgan, PROVISIONAL REMEDIES 129 5 N. Y. 422), and one may be a resident although his domicile is in another place to which he intends eventually to return (Rosenzweig v. Wood, 30 Misc. 297). Still the fact that the debtor who resides in another state has an office or place of business within this state will not make him a resident here so as to prevent the issuing of an attachment against him (Wallace & Sons v. Castle, 68 N. Y. 370). With respect to the other grounds mentioned, it should be carefully noted that mere departure from the state, concealment, removal, assignment, disposal or secretion of property, actual or contemplated, is not enough. There must in every case be established that this was done with the wrongful intent specified (Chambers & McKee Glass Co. V. Roberts, 4 App. Div. 20; Head v. Wollner, 53 Hun, 615). In addition to the cases mentioned in §§ 635 & 636, an attachment may issue where a money judgment is sought in an action to recover property held or owned by the state or a municipality or by their representatives; also in an action by a private person or corporation to recover damages for an injury to personal property where lia- bility arose in consequence of false written and signed statements as to responsibiUty or credit (§ 637). Attachment proceedings are of a highly technical character and great care must be exercised in the prepara- tion of the papers. The seizure of property prior to a formal adjudication of liability is calculated to work extraordinary hardship, and it is but reasonable to re- quire a careful observance of all the code provisions. Hence despite the statement sometimes made that the moving papers should be liberally construed in support of the attachment (Makepeace v. Dilltown Smokeless Coal Co., 179 App. Div. 60, 62) courts have not hesitated to vacate wherever there has been a deviation from 130 CODE PRACTICE IN NEW YORK strict practice. It is therefore advisable to set forth the facts in the moving papers with the utmost particularity, although as will be seen hereafter, by an amendment of § 768 passed in 1911, it has become possible to cure deficiencies in the original papers by submitting additional affidavits. It is better practice to prepare and submit a complaint as one of the moving papers. With respect to the affidavits presented it is advisable to keep in mind the following points: To procure the warrant, plaintiff must show facts justifying the issuance "to the satisfaction of the judge granting the same" (§ 636). Naturally, absolute cer- tainty cannot be expected. "All that is required is that the information furnished by the affidavits shall be such that a person of reasonable prudence would be willing to accept and act upon it. The mere averment, however, of a fact upon information and belief without more, is not sufficient; but the sources of the information and the grounds of the belief must be stated, so that the judicial officer to whom the affidavit is presented may judge whether the information and belief have a proper basis to rest on" (Buell v. Van Camp, 119 N. Y. 160, 165). If the sources of information and the groimds of beUef are letters, telegrams or other documents, plaintiff should annex the originals. He may, however, set forth copies preferably in extenso, though if the documents are long the portion relied upon may be used. This rule rests on the reason just given. "The judge granting the attach- ment must be satisfied by the evidence presented and he cannot be satisfied by the satisfaction of the affiant. It is not the plaintiff that is to be satisfied, it is the judge granting the attachment; and there is no judicial reason for the judge's satisfaction simply because the plaintiff is satisfied " (Ladenburg v. Commeicial Bank, 87 Hun, 269, 275; Thompson v. Best, 4 N. Y. Supp. 229). PROVISIONAL REMEDIES 131 If the sources and grounds consist of conversation, it is advisable to set forth the exact language used. At least the substance of the conversation must be given. For instance, it will not be enough merely to state that deponent's beUef "is based upon conversations had with defendant personally" (Cousins v. Schhchter, 135 App. Div. 779). The averment should be substantially as follows: "That on the day of the said defendant did say to deponent that," &c. Further- more where the information is communicated by tele- phone, it must appear that the affiant was acquainted with the person communicating with him and recognized his voice or otherwise identified him (Murphy v. Jack, 142 N. Y. 215). A positive averment will receive only the weight to which it fairly appears to be entitled. " Knowledge wiU not be presumed from a mere positive averment of the facts, but it must also appear from the affidavit that such knowledge really existed, by a statement of circum- stances from which the inference of knowledge can be fairly drawn" (Hoorman v. Climax Cycle Co., 9 App. Div. 579, 581; Price v. Levy, 93 App. Div. 274; James V. Signell, 60 App. Div. 75). Hence an attachment cannot issue against a foreign corporation where the moving papers though containing a positive allegation that defendant is a foreign corporation, do not give the sources of the affiant's knowledge or state facts indicating that the averment is made upon personal knowledge (N. Dain's Sons Co. v. Thomas McNally Co., 137 App. Div. 857). Where the information is based upon statements of a third party, some good reason should appear for the failure to produce his affidavit. "The main requirements are that in such a case he shall explain the failure to produce the affidavit of the person having personal 132 CODE PRACTICE IN NEW YORK knowledge and giving the information and that it should appear that the information was reUable and worthy of consideration Courts will take judicial notice of the fact that attachment papers must frequently, in fact generally, be prepared with more or less haste, and if a sufficient excuse appears from the papers for not producing the affidavit of the original informant, it will be dispensed with. It is not necessary that the plaintiff should state in so many words that he makes certain allegations on information and belief instead of producing the affidavit of the informant because the latter is im- practicable, if from all the papers such impracticability fairly appears" (Levy v. Goldstein, 18 Misc. 639, 642). The following affidavit (adapted from that used in McMahon v. Roseville Trust Co., 159 App. Div. 640) will give an idea of what is required. Supreme Court of New York, County of New York. Jambs H. McMahon, Plaintiff, agaiTist Roseville Trust Company, Defendant. State of New York, County of New York. James H. McMahon, being duly sworn, says: I. That he is the plaintiff in the above-entitled action and resides in the Borough of Manhattan, City, County and State of New York; that the Roseville Trust Company of Newark, N. J., the defendant above named, is a foreign corporation organized and existing under the laws of the state of New Jersey and is justly and truly indebted to the plaintiff in the sum of dollars for damages for a breach of a contract, other than a contract to marry, which amount is now due and owing to the plaintiff from the defendant over and above all counterclaims known to the plaintiff, upon the following facts, to wit : On or about the day of , 19 > Armour & Com-' PROVISIONAL REMEDIES 133 pany, a corporation organized and existing under the laws of the state of New Jersey, received for value from the Home Ice & Products Company two certain checks in the sum of dollars and dollars respectively drawn by the Home Ice & Products Company on the Roseville Trust Company of Newark, N. J., payable to the order of Armour & Company which checks were on the day of , 19 , duly certified for payment by the Roseville Trust Company of Newark, N. J., and assigned to the plaintiff above named for value and that the said James H. McMahon is now the owner and holder of the claim against the defendants on said checks. II. That the sources of deponent's knowledge and the information relative to defendant being a foreign corporation is the attached tele- gram received from the Commissioner of Banking of New Jersey, marked Exhibit A and also the "Bankers Register," Volume 47, page 513, dated Jan., 1913, which is a well known and reUable authority in general use by bankers throughout the United States and which deponent, by past experience, has found contains reliable information regarding various banks and bankers throughout the United States; that according to this publication the defendant is a state bank or- ganized and existing under the laws of the state of New Jersey, with a banking office at Newark, New Jersey, with a capital stock of $100,000 and a surplus of $91,000 and its president is W. P. O., and its secretary and treasurer R. E. S. ; that the sum of dollars is now justly due and owing to the plaintiff from the defendant by reason of the facts hereinbefore stated. That the above-entitled action is about to be commenced for the above-stated cause and the annexed summons has been issued. No previous application for a warrant of attachment against the property of said defendant has been made in this action. Sworn to before me this day of , 19 . James H. McMahon. EXHIBIT "A" Dated Trenton, N. J., / 15. August 15, 19 . To Breed, Abbott & Morgan, 32 Liberty Street, New York. Roseville Trust Company of Newark, N. J., was incorporated under Chapter 174, Laws of New Jersey for the year 1899. Geo. K. LaMonte, Commissioner Banking Insurance. 134 CODE PRACTICE IN NEW YORK The warrant may be granted by a judge of the court or any county judge to accompany the summons or at any time after the commencement of the action and before final judgment. Personal service must be made within thirty days after the warrant is-granted or within that time, service must be commenced by pubUcation (§ 638). This is mandatory. It is a condition on which the vitality of the attachment depends so that an attach- ment when issued remains good for thirty days, only if within that time one of these steps is taken. Hence an attachment so rendered void is not revived or vaUdated by the subsequent appearance of the defendant (Blossom V. Estes, 84 N. Y. 614). If, however, publication has been begun within the specified time and defendant appears during the period of publication it will be unnecessary to pubhsh further (TuUer v. Beck, 108 N. Y. 355). The warrant must be subscribed by the judge and by plaintiff's attorney. It must briefly recite the groimd of the attachment and require the sheriff to attach and safely keep, so much of the defendant's property within the county as will satisfy plaintiff's demand with costs and expenses (§ 641) . A form of warrant (adapted from that used in McMahon v. Roseville Trust Company, supra) is as follows : The People of the State of New York. To the Sheriff of the County of New York. Whereas an application has been made to the undersigned by the plaintiff James H. McMahon, for a warrant of attachment against the property of Roseville Trust Company of Newark, N. J., a cor- poration organized and existing imder the laws of the State of New- Jersey, defendant, and it satisfactorily appearing to me by the affi- {Javit of James H. McMahon, sworn to the day of , 19, , and by the summons and verified complaint in this action, that the action is brought to recover a sum of money only as damages for breach of contract express or implied, other than a contract to marry, to wit, to recover a certain sum of money due to the plaintiff upon PROVISTONAL RKMEDTES 135 two certain checks certified by the defendant and that a cause of action therefor exists against the said defendant in favor of the plaintiff for the sum stated in said affidavit, to wit, dollars, and that the plaintiff is entitled to recover said sum over and above all counter- claims known to him, and that the said defendant is a foreign corpora- tion organized and existing under the laws of the State of New Jersey and is a non-resident of the State of New York and the plaintiff having also given the undertaking required by law. You ARE HEREBY COMMANDED to attach and keep safely so much of the property within your country which the said Eoseville Trust Company of Newark, N. J., has or which it might have at any time before final judgment in this action as will satisfy the plaintiff's demand of dollars, with interest, together with costs and expenses, and that you proceed herein in the manner and make your return according to law. Witness: Hon. Bartow S. Weeks, Justice of the Supreme Court, this day of , 19 , in the County Court House in the County of New York. Bartow S. Weeks, Justice of the Supreme Court of the State of New York. Breed, Abbott & Morgan, Attorneys for plaintiff, 32 Liberty Street. It must be emphasized that the ground of the attach- ment should be correctly set forth in the warrant. For iastance, a recital that the defendant "has assigned and disposed of or is about to assign and dispose of her prop- erty" states no ground; "for to state in the alternative is to state neither the one nor the other fact. Such an alternative statement of grounds results in a mutual exclusion" (Cronin v. Crooks, 143 N. Y. 352, 354). Before granting the warrant, the judge must require a written undertaking with sufficient sureties that if defendant recovers judgment or if the warrant is vacated, plaintiff will pay all costs and damages, not exceeding the sum specified which must be at least $250 (§ 640). It is not a defense to a subsequent action on the under- 136 CODE PRACTICE IN NEW YORK taking that the warrant was granted unproperly for want of jurisdiction or for any other cause (§ 642). The sureties cannot well be permitted to claim that the warrant should never have been granted in the first place, but the section referred to supersedes the view formerly taken (cf. Baldersee v. Aden, 12 Abb. Pr. N. S. 324). Within ten days after the granting of the warrant, plaintiff must cause the affidavits upon which it was based to be filed (§ 639). In case of failure to do so, the opposing party may move to vacate the warrant. A like penalty is imposed for failure to file the undertaking (Rule IV). The sheriff may execute the warrant up to the time when judgment is recovered but not afterwards (Lynch V. Crary, 52 N. Y. 181). He levies upon so much of the defendant's property not exempt from execution as wiU satisfy plaintiff's demand, with costs and expenses. He takes into custody all books of account, vouchers and other papers relating to the personal property and all evidences of defendant's title to the real property at- tached (§ 644) . Attachable real property includes any interest vested or not vested which is capable of being aliened (§ 645) . He may also levy upon a sum owing by a person within the county to a foreign corporation or a subscription to its stock or upon shares of stock held by such a person or transferred for the purpose of avoid- ing payment (§ 646) ; upon the rights or shares which de- fendant has in the stock of an association or corporation or in a bond (§ 647) ; upon a cause of action upon a con- tract including any instrument for the payment of money belonging to the defendant and found within the county, or a right or interest to any of the property or estate of a decedent belonging to defendant which could be lawfully assigned as legatee or distributee (§ 648). The levy is made as follows: Upon real property by PROVISIONAL REMEDIES 137 filing with the county clerk a notice of the attachment stating the names of the parties, the amount of the claim and a description of the property; upon personal property capable of manual delivery, including an instrument for the payment of money, by taking actual possession thereof and by delivering to the person from whom it is taken, a copy of the warrant and of the affidavit; 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 against whom the demand exists or with the proper officer of a corporation in which the defendant owns stock, or with the executor, adminis- trator or trustee if it consists of a right or interest in an estate (§ 649). The sheriff may demand that the corpora- tion officer or the debtor or person holding property be- longing to defendant furnish a certificate specifying the rights or number of shares or the amount, nature and description of the property or of defendant's interest therein or of the debt or demand (§ 650) . If this is refused or if there is reason to suspect that the certificate is untrue or incomplete, an order may be made requiring a third party to submit to examination (§ 651) . The sheriff must immediately after levying under the warrant, make, with the assistance of two disinterested freeholders, a description or inventory of the property and of the books, vouchers and other papers stating value, and file with the county clerk (§ 654). The sher- iff is permitted to bring any necessary action in aid of the attachment to collect a chose in action or to reduce to his possession personal property capable of manual dehvery. Where the summons was served without the state or by pubKcation and the defendant has made de- fault, the sheriff may compel discovery of property be- longing or due to the debtor or held in trust for him or to prevent its transfer, payment or dehvery (§ 655). Perish- 138 CODE PRACTICE IN NEW YORK able property and animals may be sold under an order (§656). Sometimes the attached property is claimed by a third person and in that case the procedure is as follows: The claimant makes and delivers to the sheriff an affidavit containing a statement of his claim, a description of the property, its value and the damages which he will suffer in case the levy is not released. The sheriff then may empanel a jury to try the vahdity of the claim (§ 657) . Usually the jury finds ownership to be in the claimant, since the chief object of the proceeding would seem to be to permit the sheriff to protect himself by exacting a bond. In the event of such a finding, the goods must be delivered to the claimant, unless plaintiff gives an imder- Jiaking of indemnification with at least two sureties, to an amount not less than twice the value of the goods and damages and $250 in addition. Upon receiving this undertaking, the sheriff detains the goods, files the orig- inal and serves upon claimant a copy with notice of justification. If on justification the sureties are found sufficient, the judge annexes the examination to the undertaking, indorses his allowance thereon and directs the papers to be filed, whereupon the sheriff is released (§658). /If the property is found by the sheriff's jury not to be in the claimant his rights are not concluded, since the proceeding, as already stated, seems to be de- signed merely to permit the sheriff to require a bond. The claimant's rights not being prejudiced, he may bring an action to recover the property or its value (§ 659). In the case just mentioned, the claimant's right to secure a return of the property is defeated if the plain- tiff is willing to give a bond. But the claimant also may have the property deUvered to him by applying within five days after the levy for an order of discharge. He PROVISIONAL REMEDIES 139 then gives to the sheriff an undertaking with at least two sureties who must justify in double the value of the prop- erty claimed as appraised in the inventory. After justi- fication, an order is made discharging the property from the attachment upon payment of the sheriff's fees and disbursements. This right of discharge is absolute not- withstanding that plaintiff may himself have given an undertaking (§ 658). The defendant or one who has acquired a lien upon or interest in the property after it was attached may at any time before its actual application to the payment of the judgment, move to (1) vacate or (2) modify the warrant or (3) increase the security given by plaintiff or for one or more of these forms of relief together or in the alter- native (§ 682) . If the motion is made upon the original papers it may be ex parte or upon notice, but it must be to the court or judge that granted the warrant. Or the application may be based on affidavits in which case it is not required to be made to the same judge, but here notice should be given and plaintiff may then file opposing affidavits, tending to sustain any ground recited in the warrant and no other, unless the defendant rehes on a discharge in bankruptcy or insolvency, in which case plaintiff may show matter in avoidance (§ 683) . Since 1911, defects or insufficiencies in the papers on which the warrant was granted may on the motion to set aside or vacate, be cured or supplied nunc pro tunc (§ 768 ; Cutler V. Allavena, 165 App. Div. 422, but qv^ry as to juris- dictional defects). If an apphcation prior to the fifing or service of the complaint is denied, a subsequent appli- cation may be made after such complaint is filed or served based on its failure to set forth any of the required causes of action (§ 686). The defendant may also have the attachment dis- charged as to a whole or a part of the property (§ 687) 140 CODE PRACTICE IN NEW YORK upon furnishing an undertaking with sureties to the effect that he will on demand pay the amount of any judgment recovered. The sum specified must at least equal the amount of plaintiff's demand or the appraised value of the property or that portion which it is sought to have discharged (§ 688). Where the attachment is levied on the interest of one or more partners in the property of the partnership an appKcation may be made by the other partners or any of them (§ 693). The imder- taking is filed with the clerk and a copy with notice of filing is served on plaintiff's attorney, who may give notice to the sheriff that he excepts to the sufficiency of the sureties who must thereupon justify. If plaintiff does not except, he is deemed to have waived all objec- tion to the sureties (§ 690). As has already been said when speakiag of service by publication, an attachment is essential in order to secure jurisdiction where defendant is a non-resident or a foreign corporation and has not been served within the state or has not voluntarily appeared. The proceedings are then qiiasi in rem and the power of the court extends only over the property which has actually been seized. No personal judgment can be entered and "judgment can be enforced only against the property which has been levied upon by virtue of the waixant of attach- ment at the time when the judgment is entered" (§707). When an execution is issued, the sheriff first pays to the plaintiff all money attached and the proceeds of all sales or of debts collected or sold or so much as is necessary to satisfy the judgment; then if any balance remains due, he must sell the other personal property and may collect the debts and choses in action and prosecute any undertaking, after which he may be directed to sell the other attached property (§ 708). PROVISIONAL REMEDIES 141 6. Receivers. The Court of Chancery possessed and exercised in many cases, the power to appoiat receivers pendente lite whose functions were hmited to the care and pres- ervation of property which was the subject-matter of the action (Decker v. Gardner, 124 N. Y. 334). A common instance was in foreclosure suits, whenever by reason of the insufficiency of the security, it became necessary to impound the rents and profits of the mortgaged property during litigation in order that they might, after the decree and sale, be applied upon the debt for the security of the mortgage (Hollenbeck v. Donnell, 94 N. Y. 342). The Code does not undertake to regulate the appoint- ment of a receiver, except in a general way, though its provisions are exclusive so far as they cover the subject (Dazian v. Meyer, 66 App. Div. 527). If they are appU- cable and furnish an adequate remedy, the code procedure must be followed (Colwell v. Garfield Natl. Bank, 119 N. Y. 408). Such appointment may be made (1) Before final judgment on the application of a party establishing an apparent right to or interest in the property where it is in possession of an adverse party, and there is danger that it wiU be removed beyond the court's jurisdiction or lost, materially injured or destroyed; (2) By or after final judgment, to carry the judgment into effect or dis- pose of the property according to its directions; (3) After final judgment, to preserve the property during the pendency of an appeal (§ 713). Notice of an application before judgment must be given unless the adverse party has failed to appear and is in default. But where an order for service of summons by pubUcation or without the state has been made, a temporary receiver to receive and preserve the property may- be appointed without notice, or upon notice by pubhcation or otherwise as the court thinks proper, and in foreclosure actions where 142 CODE PRACTICE IN NEW YORK the mortgage provides for appointment without notice, notice is not required (§714). The receiver must file a bond with at least two sureties in a penalty fixed by the court, judge or referee making the appointment, condi- tioned for the faithful discharge of his duties (§ 715). Provision is specially made for the appointment of receivers in particular instances, as supplementary pro- ceedings (§ 2464) and in actions to dissolve corporations (Gen. Corp. Law, § 104). 6. Replevin. In an action of replevin (called by the Code "an action to recover a chattel"), the plaintiff (1) when the summons is issued or (2) before the service of a copy of defendant's answer or (3) before entering judgment by default, may cause the chattel to be replevied by the sheriff. The procedure is to deUver to the sheriff an afiidavit and imder- taking. Indorsed upon or annexed to the affidavit is a written requisition subscribed by plaintiff's attorney to the effect that the sheriff is required to replevy the chattel described therein. This requisition is deemed the mandate of the court (| 1694). The affidavit must particularly describe the chattel and must contain allega- tions showing (1) that the plaintiff is the owner or en- titled to possession by virtue of a special property therein, setting forth the facts; (2) a wrongful detainer by de- fendant; (3) the alleged cause of detention; (4) that it has not been taken imder a warrant against plaintiff in proceedings for the collection of a state or federal tax, assessment or fine, or if so taken, that the taking or de- tention was unlawful; (5) that it has not been seized under an execution or attachment against plaintiff or any person from whom plaintiff derived title since the seizure or if so seized that it was exempt or the detention was unlawful; (6) its actual value (§§ 1695-1697). PROVISIONAL REMEDIES 143 The following is a form of affidavit and requisition: New York Supreme Court, County of New York. Andeew Atkins, Plaintiff, against Benjamin Bristow, Defendant. State of New York, County of New York. Andrew Atkins, being duly sworn, deposes and says that he is the plaintiff in this action and that he is the owner of and entitled to the possession of the following' described chattels (describe them particu- larly). That an action has been brought by deponent, the plaintiff therein, to recover the said chattels and the summons has been issued, which summons and a verified complaint are hereunto annexed. That the said chattels are wrongfully detained by the defendant, Benjamin Bristow and that the alleged cause of the detention thereof according to deponent's best knowledge and belief is as follows (state cause of detention) : That said chattels have 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; nor have the said chattels 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 chattels since the seizure thereof. That the actual value of the said chattels is dollars. Sworn to before me, &c. Andrew Atkins. Requisition To Alfred E. Smith, Esq., Sheriff of the County of New York. You are hereby required to replevy the chattels described in the foregoing aflSdavit. Dated the day of , 19 . Charles Carter, Attorney for Plaintiff, 170 Broadway, Borough of Manhattan, New York. 144 CODE PRACTICE IN NEW YORK The undertaking must be executed by at least two sureties to be approved by the sherifif. It must be to the effect that the sureties are bound in a specified sum, not less than twice the value of the chattel for the prosecution of the action; for the return to the defendant if possession is adjudged to him, or if the action abates or is discontin- ued, before its return to defendant; and for the payment of any sum which the judgment awaMs against the plain- tiff (§ 1699). If the chattel is foxmd in the possession of defendant or of his agent, the sheriff takes it into his possession. He serves copies of the affidavit, requisition and undertaking upon defendant if he can be found and if not, upon his agent from whom the chattel was taken or if neither can be found, by leaving copies at the abode of either, with a person of suitable age and discretion (§ 1700). It will be noted that the sheriff can only take the chattels from the defendant or his agent. He caimot take them from a third party (Otis v. Williams, 70 N. Y. 208). Hence the obUgation of the imdertaking given by plaintiff is to the defendant alone or to one in privity ^th him and does not inure to a third party, although the latter may have been entitled to the possession of the chattel and the sheriff as to him was a trespasser and liable to suit (First Commercial Bank v. Valentine, 209 N. Y. 145). His remedy as hereafter stated is governed by §§ 1709, 1710. The sheriff in making his replevy may cause a building or inclosure to be broken open (§ 1701). He retains the chattel in his possession until the person who is entitled thereto is ascertained, whereupon he must deliver it to that person upon payment of fees and ex- penses (§ 1702). Who that person may be will be deter- mined by the course which the parties adopt. Defendant may (1) serve a notice that he excepts to the plaintiff's sureties, in which case plaintiff's attorney serves a notice of justification (§ 1703). If upon justifi- PEOVISIONAL REMEDIES 145 cation, the sureties are found sufficient, tlie slieriff de- livers thfi chattel to plaintiff (§ 1706). Or the defendant may (2) reclaim the chattel by serving notice upon the sheriff that he requires its return. With this notice he delivers an affidavit containing an allegation either that defendant is the owner or that he is lawfully entitled to possession by virtue of a special property, setting forth the facts with respect thereto. He also delivers an undertaking with at least two sureties to the effect that they are bound in a specified sum not less than twice the value of the chattel, for its delivery to the plaintiff, if delivery is adjudged, or if the action abates in conse- quence of defendant's death and for the payment of any sum which the judgment awards against defendant. Within three days thereafter he serves notice of the justi- fication of the sureties (§ 1704). If the undertaking is al- lowed, the sheriff dehvers the chattel to defendant (§ 1706) . If defendant adopts a third and passive course, neither ex- cepting to the sureties nor giving a bond for the chattel's re- turn, the chattel will be handed over to plaintiff. However events shape themselves, the result will be that one of the parties will have the goods and the other the undertaking. If a third person wishes to claim the chattel prior to its deUvery to either plaintiff or defendant, he serves upon the sheriff an affidavit stating that he makes such claim, specifying the chattel and setting forth the facts upon which his right of possession depends. The sheriff may then require indemnity from the plaintiff and if it is not furnished he may in his discretion deliver the chattel to claimant (§ 1709). A claimant who has served an affi- davit may sue the sheriff if the latter dehvers the chattel to plamtiflf (§ 1710). The final judgment awards possession of the chattel to the party entitled thereto, fixing its value in case de- livery cannot be had, together with the damages (§ 1730). CHAPTER X NOTICE OF TRIAL AND NOTE OP ISSUE An action is brought to trial by the service of a notice of trial upon the opposing party and the filing of a note of issue with the clerk. A notice of trial may be served at any time after the joinder of issue and at least fourteen days before the commencement of the term (§ 977), or sixteen days before the day of trial if service is by mail (§ 798). In the New York City Court, a five days' notice (§ 3161), may be served for any day of the term (§ 3162). Section 980 provides that either party who has served the notice may bring the issue to trial and in the absence of the other party, unless the judge otherwise directs, may proceed with the case and take a dismissal of the complaint or a verdict, decision or judgment as the case requires. Hence the defendant should in all cases serve his cross notice for if he does not, he cannot move to dis- miss if the plaintiff defaults when the case is called. In the larger counties it is only necessary to serve one no- tice. In others if the case is not tried at the term for which notice is given, new notices must be served for succeeding terms (§ 977). The following form may be used by plaintiff. Supreme Court of New York, County of New York. Andrew Atkins, Plaintiff, Benjamin Bristow, Defendant. Please to take notice that the issues of fact (or "of fact and law") in this action will be brought to trial and an inquest taken therein 146 NOTICE OF TRIAL AND NOTE OF ISSUE 147 (or if in equity, state "an application made for the relief demanded in the complaint") at a Trial (or "Special") Term of the Suprepie Court of New York, appointed to be held in and for the County of New York at the County Court House in the Borough of Manhattan, City of New York on the first Monday of , at 10.30 o'clock in the forenoon of that day or as soon thereafter as counsel can be heard. Dated the day of , 19 . To Daniel Darling, Esq., Charles Carter. Attorney for Defendant. Attorney for Plaintiff. (Address.) (Address.) If the notice is served by defendant, ia lieu of the phrase "an inquest taken" insert "a motion made to dismiss the complaint." Now for the note of issue. This is essential in order that the case may be placed upon the calendar. It must be filed with the clerk at least twelve days before the commencement of the term (| 977) . In the New York City Court, the period is two days before the day or term for which notice of trial was given (§ 3162). The notice must state the title of the action, names of the attorneys, time when the last pleading was served, nature of the issue whether of fact or law and if an issue of fact, whether triable by jury or by the court without a jury and the particular nature of the same and the object of the action. like the notice of trial, only one note of issue is required in the larger counties and not one for each term until the case is reached (§ 977), In New York County, the calendar is subdivided, tort actions generally being placed on Calendar No 1 and other actions, chiefly those on contract, on No 2. The note of issue must specify the number of the calendar on which the cause is to be placed (Trial Term Rule I, First Dept.). The following form will illustrate the method to be pursued. 148 CODE PRACTICE IN NEW YORK Supreme Court of New York, County of New York. Andrew Atkins, Plaintiff, against Benjamin Bristow, Defendant. Action for (state cause, e. g., damages for personal injuries). To be placed on Trial (or Special) Term Calendar. (No. 1 or 2.) Issue joined on the day of , 19 , by service of (answer or reply). Noticed for trial for the first Monday of , 19 . Charles Carter, Esq., Attorney for Plaintiff. (Address.) Daniel Darling, Esq., Attorney for Defendant. (Address.) The clerk enters the cause accordmg to the date of issue (§ 977). The court may from time to time require the clerk to print copies of the calendar (Judiciary Law, §§ 154, 193). This does not apply to New York County, however, where the calendars are printed in the Law Journal. CHAPTER XI MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 1. Motions. 2. Service of Papers. 3. Changing the Venue. 4. Security for Costs. 5. Tenders and Offers. 6. Proceedings upon Death, Disability or Transfer. 7. Bills of Particulars. 8. Consolidation. 9. Interpleader. 10. Dismissal for Neglect to serve Summons or to Proceed. 11. Depositions. (A) Taken and to be Used Within the State. (I) De Bene Esse. (II) To Frame a Pleading. (Ill) To Prepare for Trial. (IV) Physical Examination. (V) Discovery and Inspection. (VI) For Use on a Motion. (B) Taken Without, for Use Within the State. (I) Classes. (II) Procedure. (C) Taken Within, for Use Without the State. 12. Preferences. 13. Procuring Attendance of Witnesses and Production of Documents. 14. Requests to Admit Genuineness and Notices to Produce. 15. Evidence— Miscellaneous Provisions. (A) Competency of Witnesses; Evidence in Particular Cases. (B) Documentary Evidence. (I) As a Substitute for Oral Testimony. (II) Proof of Document Executed or Remaining Within the State. (Ill) Proof of Document Remaining in U. S. Court or 149 / 150 CODE PRACTICE IN NEW YORK Public Office or Executed or Remaining Without the State. (IV) Miscellaneous Provisions. 1. Motions. "An application for an order is a motion" (§ 768). By- Rule XXXVIII, motions are divided into "enumerated" and "non-enumerated." Broadly speaking, an enumer- ated motion is one that makes a final disposition of the issues while a non-enumerated motion is incidental to litigation. It is the latter class that is comjnonly imder- stood when the term "motion" is used. Another division is into motions upon notice and ex parte. The former are the rule, the latter the exception. An illustration of an ex parte motion is an application for an order to show cause. When applying ex parte, the attorney should see that the affidavit states whether any previous application has been made, and, if made, to what court and judge and what order or decision was made thereon and what new facts, if any, are claimed to be shown. For failure to comply wtth this rule any order granted on such application may be revoked or set aside (Rule XXV). The Supreme Court is a state and not a local court and an ex parte judge's order may be made by any jus- tice in any part of the state. Seemingly, therefore, an order to show cause may be made in, say Erie County, returnable in New York County, or vice versa. It has already been said that a coimty judge may, in certain cases, make such orders in actions in the Supreme Court. This is subject to the proviso that he must be the county judge of the county where the action is triable or in which the attorney for the applicant resides and the order must not be one staying proceedings after a verdict, report or decision (§ 772) . In the First Judicial District applica- tion for ex parte orders must be made to Special Term, MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 151 Part II, and if granted elsewhere, they shall not be en- tered by the clerk (Gen. Rule XXVI; Special Term Rule V. First District). 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 an adjoining county, except that in the First Judicial District the motion must be made within that district, nor can a motion upon notice be made in that district in an action triable elsewhere (§ 769). In the First District, the motion must be made at Special Term, Part I, which is the term for Utigated motions (Gen. Rule XXVI; Special Term Rule I, First District) . The moviag party may bring on his application, either by notice of motion or by order to show cause. The following is a notice of motion : Supreme Court of New York, County of New York. Andrew Atkins, Plaintiff, against Benjamin Bristow, Defendant. Please take notice that on the annexed affidavits of Mortimer May, sworn to the day of , 19 , and of Nicholas Noyes, sworn to the day of , 19 , and on the summons and complaint in this action, which complaint was duly verified on the day of , 19 , and was heretofore filed in the office of the Clerk of the County of New York, and on all proceedings had herein, a motion will be made at a Special Term of this Court to be held at Part I thereof in the County Court House, in the Borough of Manhattan, in the City of New York on the day of , 19 , at the opening of court on that day or as soon thereafter as counsel can • be heard for an order (stating the relief demanded) and for such other and further relief as may be proper, together with the costs of this motion. (If the motion is for irregularity, e. g., to vacate an order on 152 CODE PRACTICE IN NEW YORK that ground, the notice must specify the irregularity complained of. Rule XXXVII.) Dated the day of , 19 . Yours, &c. To Daniel Darling, Esq., Charles Caktbe, Attorney for Defendant, Attorney for Plaintiff, 162 Broadway, 29 Nassau Street, Borough of Manhattan, Borough of Manhattan, New York. New York. An order to show cause is used whenever the time of notice is to be cut down or it is desired to secure a tempo- rary stay pending the hearing. Generally, as already stated, either method may be adopted though some special proceedings are required to be brought on by order to show cause, rather than by notice. A form of order to show cause has already been given (p. 16). It should be noted that an order to show cause like other ex parte orders, requires the statement'in the affidavit on which it was obtained, that no previous application has been made, etc. (Rule XXV), also the reason why the time if shortened, should be less than the required period of five or eight days. Moreover, the party must state the present condition of the action, whether it is at issue, and if not yet tried, the time appointed for holding the next special or trial term where the action is triable (Rule XXXVII). This requirement is strictly enforced (Halfmoon Bridge Co. v. Canal Board, 156 App. Div. 880; Cole v. Smith, 84 App. Div. 500). Generally eight days' notice of motion must be given (§ 780) unless the attorneys reside or have their offices in the same city or village in which case there may be five days ' notice (Rule XXXVII). If at least eight days' notice is given, the adverse party must, 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 affidavits and papers which he expects to MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 153 read in opposition. He may also at least three days prior to the return day, serve a notice with or without affidavits or other papers in support thereof, specifying any relief to which he claims to be entitled in the action whether responsive or not to that asked for by the moving party (§ 768). The moving party may, if he wish, serve a ten days' notice which after the prayer for relief and before the signature (i. e., in the foregoing form after the phrase "with the costs of this motion"), shall contain the following statement: "Answering affidavits must be served five days before the return day," in which case, answering affidavits in order to be used on the motion must be so served. The moving party may then serve reply affidavits at least two days before the hearing (Rule XXXVII). These time provisions are somewhat confusing. It will be observed that when eight days' notice has been given, answering affidavits may be served at least one day prior to the return day. The opposing attorney also has this right when the five days' notice has been given. When a ten days' notice has been served vmder Rule XXXVII, the requirement that answering affidavits be served five days before the return day seems a cur- tailment of the right secured by § 768. However, the court in its discretion may even then under Rule XXXVII permit an answering affidavit served one day prior to the return to be used upon the motion (Joyce v. Eastman Kodak Co., 99 Misc. 361). Sometimes a shorter notice of motion is specifically provided. For instance, when the time to serve any pleading has been extended by stipulation or order for twenty days, no further time shall be granted except upon two days' notice (Rule XXIV). The object of this rule is to do away with the dilatory tactics theretofore adopted by some attorneys, who after obtaining exten- 154 CODE PRACTICE IN NEW YORK sions of time from their opponents until the latters' patience was exhausted, would rush into court and secure further extensions ex parte. Here an affidavit of merits is required, sworn to by the attorney or counsel to the effect that from the statement of the case made to him by the defendant (or plaintiff), he verily beUeves that the latter has a good and substantial defense upon the merits to the cause of action set forth in the complaint (or coimterclaim) or to some part thereof. The aflBdavit shall also state the cause of action and the relief demanded in the complaint and where a counterclaim has been interposed, the cause of action alleged as a counterclaim and the relief demanded in the answer and whether any and what extensions of time to answer, demur or reply by stipulation or order have been granted (Rule XXIV) . Under Rule XXIII, an affidavit of merits is likewise required where the motion is for relief to which a party is not entitled as matter of right. But here a formal recital wiU not suffice since the motion must "be made upon papers showing merits and the good faith of the prosecution or defense." This affidavit is not required to be made by the attorney. It may be by the party (see ante, p. 100). Almost invariably, motions are made upon affidavits. The Code provides that certaia proceediags shall be instituted by petition but this is not obUgatory since they may also be instituted by affidavit and in like man- ner, proceedings required to be instituted by affidavit may be instituted by petition (§ 768) . Section 842 enumerates the officers before whom af- fidavits may be taken within the state. They may then be used anywhere and in this respect, affidavits dif- fer from acknowledgments, since the latter are required to be authenticated if offered in counties other than that in which they are taken. By § 844 an affidavit may be MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 155 made without the state before an officer authorized by the laws of the foreign state to take and certify the acknowledgment and proof of deeds to be recorded therein. It should be noted that the section does not say an officer authorized to take affidavits. Generally a notary public may act. There must here be the same certificate of official character and genuineness of sig- nature as would be required to enable a deed to be re- corded (§ 844). The following is a fonn: State of New YofK, County of New York, I, , Clerk of the in the State of and clerk of the Court, the same being a Court of Record, in and of the aforesaid County, City or Parish having by law a seal, do hereby certify that by whom the foregoing affidavit was taken &nd whose name is subscribed thereto, was at the time of taking the same a duly com- missioned and sworn and authorized by the laws of said State to take the acknowledgment and proof of deeds to be recorded therein, and I am well acquainted with his handwriting and verily believe that the signature to the foregoing certificate is genuine. In witness whereof I have hereunto set my hand and affixed my official seal this day of , 19 . Seal. Clerk. An affidavit in a pending action should not be made before a notary or other officer who is the attorney of record (Taylor v. Hatch, 12 Johns. 340). Though being a mere irregularity, it may be waived (Vreeland V. Penn. Tanning Co., 130 App. Div. 405). ■ Wide power has been given to courts and judges to disregard technicaUties upon the hearing of a motion. Relief is not to be denied because of defects or insufficien- cies in the moving papers which can be cured upon the hearing or before the entry of the order thereon and a direc- tion may be made that such defects or insufficiencies be 156 CODE PKACTICE IN NEW YORK cured or supplied forthwith. On a motion to set aside or vacate because of technical defects or insufficiencies which can be cured or suppUed without prejudice to intervening rights, it is the court's duty to direct that they be cured or supphed nunc pro tunc (§ 768). If a motion is wholly or partly refused or granted conditionally or on terms, a subsequent application in reference to the same matter and in the same stage of the proceedings shall be made only to the same judge or to the court. If made to another judge out of court, an order granted thereon must be vacated (§ 776) and the person who knowingly violates this rule is guilty of con- tempt (§ 778). Costs on a motion may be awarded either absolutely or to abide the event of the action in the discretion of the court or judge (§3236). The amount is usually $10* (§ 3251, subd. 3). If not paid within the time fixed by the order or if no time is fixed, within ten days after service of a copy of the order, an execution against per- sonalty may be issued and all proceedings on the part of the party required to pay, except to review or vacate the order, are stayed until payment, though the adverse party may waive the stay of proceedings (§ 779). 2. Service of Papers. Service of the summons has already been considered. Service of a paper upon an attorney may be made in various ways. The paper or a copy may, of course, be dehvered to him personally (§ 796). Generally it is a copy but it is otherwise when the paper is a notice for then the original is served. If admission of service is refused proof is then made by affidavit of which the follow- ing is a form : * It has occasionally been remarked that it costs $10 per section to learn the code. MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 157 Supreme Court of New York, County of New York. Andrew Atkins, Plaintiff, against Benjamin Beistow, Defendant. State of New York, County of New York, Mortimer May, being duly sworn, deposes and says that he is over the age of twenty-one years; that on the day of ,19 , at No. 167 Broadway, in the Borough of Manhattan, in the City, County and State of New York, he served the annexed answer on Charles Carter, Esq., attorney for the plaintiff in the above entitled action, by delivering to and leaving with said attorney a true copy thereof. (Or, "the annexed order by delivering to and leaving with said attorney a true copy thereof, duly certified by the clerk of this court." If it be a judge's order, as an order to show cause, omit ref- erence to certification and add "and at the same time and place he exhibited to the said Charles Carter the annexed original order and the signature of Hon. Edward Evans, one of the Justices of this Court, at the foot thereof." If it be a notice, e. g., of appearance say, "a notice of appearance of which the annexed is a copy upon," &c., "by dehvering said notice to and leaving the same with," &c.) Deponent further says that he knew the person so served as afore- said to be the said Charles Carter, the attorney for the plaintiff in the above entitled action. Sworn to before me, &c. MoETiMBK May. There is no requirement that the person making the service should be at least eighteen years old. It is better, however, to show in the affidavit that he has attained an age when he may be assumed to possess sufficient dis- cretion. Service may also be made by mail by depositing the paper properly enclosed in a postpaid wrapper in the postoffice or in any postoffice box regularly maintained by the United States government and under the care of 158 CODE PRACTICE IN NEW YORK the postoffice, of the party or attorney serving it, directed to the person to be served at the address designated by him upon the preceding papers in the action, or where he has not made such designation, at his place of residence or the place where he keeps an office according to the best information which can conveniently be obtained (§ 797). In New York City, service may be made by depositing in a branch postoffice (§ 801), but apparently not by depositing in a mail chute in an office building (Korn V. Lipman, 201 N. Y. 404). Here the affidavit should recite service by depositing a copy of said answer (or other paper) properly enclosed in a securely sealed, postpaid wrapper in the General Post-office of the City of New York (or "in a branch postoffice," or "in a post- office box regularly maintained by the government of the United States and imder the care of the postoffice at in the City, County and State of New York") addressed to said Charles Carter at No. 167 Broadway in the Borough of Manhattan, in the City, County and State of New York, and that said address was the address designated by the said Charles Carter on the preceding papers in the action served by him as his address within the state of New York where papers in said action might be served. Service by mail is complete when the paper is deposited in the mail, i. e., deposit may be made at any hour of the last day and is good though the paper be lost or delayed bx the mail (Schwartz v. linington, 18 N. Y. Supp. 879). The time for serving the answer to a pleading runs from the day when the latter is mailed and not from the time of receipt (Matter of Werner v. W. S. B. L. C. & B. Soc, 51 Misc. 82). Whenever a notice must be given or a paper served within a specified time, or the adverse party has a specified time after notice or service within which to do a specified act, if service is made by mail three days are added (§ 798), e. g., defendant's attorney will have 23 days within which to answer a mailed com^ MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 159 plaint. Thus it would seem that by serving a pleading by mail an additional three days are secured within which to amend of course (cf. Schlegel v. Church of Holy Trinity, 194 N. Y. 391, decided previous to amendment of section). If notice of trial is mailed, it must be sent sixteen days before the day of trial (§ 798) instead of fourteen days before the term, which is the period if served persoLally (§ 977). It is not advisable to register the package, as sometimes this may. create difficulty in making the delivery, resulting in delay, though registering will not make service void (Sears v. Tenhagen, 50 Misc. 275). Nor will the careful attorney inclose the papers in an envelope bearing thereon a direction to return, because in some instances this may result in the non-dehvery when without it dehvery might be effected. If by reason of the presence of a return card on the envelope or if by reason of a shortage of postage, the papers do not actually come into the possession of the party upon whom it is sought to serve them, there is no service. But if such causes did not in fact prevent the actual receipt of the papers, they become immaterial defects and do not invaUdate the service (Appeal Printing Co. v. Sherman, 99 App. Div. 533 ; Gaffney v. Bigelow, 2 Abb. N. C. 31 1) . When postage is not fully prepaid, the attorney to whom the envelope is addressed may refuse to receive it and to pay the postage due. There is then, of course, no service (Kuh v. Goldman, 119 App. Div- 148). Service upon an attorney during his absence from his office may be made by leaving the paper with his partner or clerk therein or with a person having charge thereof (§ 797, subd. 2). If there is no person in charge and the service is made between six o'clock in the morning and nine o 'clock in the evening, it may be either (a) by leaving it in a conspicuous place in his office or (b) by depositing it inclosed in a sealed wrapper directed to him in his 160 CODE PRACTICE IN NEW YORK office letter box or (c) if the office is not open and there is no office letter box, by leaving it at his residence within the state with a person of suitable age and discretion (§797,subd.3). It should be noted that the paper cannot be left in a con- spicuous place in the office unless the office is open, so that it is improper to cause the door to be unlocked for the purpose (Campbell v. Spencer, 1 How. Pr. 199; Vail v. Lane, 4 Hun, 653). Indeed, it has been held that the affidavit of service must state that the office was open (Haight V. Moore, 36 N. Y. Super. 294). Service by de- positing in a letter box requires that there actually be a letter box in which the deposit is made. Hence it is not sufficient to drop the envelope in a slit in the door where there is in fact no letter box (Timolat v. Held Co., 15 Misc. 630), even though the slit is surmounted with a plate bearing the word "Letters" (Livingston v. N. Y. El. R. Co., 58 Hun, 131; affmd. 125 N. Y. 695). The paper cannot be thrown through a transom (Claflin v. Du Bois, 1 N. Y. Supp. 150) or thrust under the door (Rogers v. Rockwood, 13 N. Y. Supp. 939). It is also improper service to deposit the paper in a letter box without enclosing it in an envelope or sealed wrapper and without addressing the latter (Fitzgerald v. Dakin, 101 App. Div. 261). In the foregoing cases, the affidavit should state serv- ice "by delivering to and leaving with a person having charge of said Charles Carter's office, a true copy thereof, said Charles Carter being absent from the said office at the time" or "between six o'clock in the morning and nine o'clock in the evening by depositing and leaving a true copy thereof in a conspicuous place in his said office, to wit, on a desk in the said office, at the address above men- tioned, the said office at the time having been open, but there being no person in charge thereof upon whom service could be made," or "by depositing a true copy thereof MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 161 in his office letter box enclosed in a securely sealed wrapper directed to him at his said office, which at that time was closed, there being then no person in charge thereof upon whom service could be made." Service may be made on the party when he appears in person (1) by personal delivery (§ 796) ; (2) by mail (§ 796, subd. 1) ; (3) by leaving at his residence within the state between six in the morning and nine in the evening with a person of suitable age and discretion (§797, subd. 4). When service is defective, the attorney upon whom it is attempted to be made should return the paper promptly, stating the ground of his objection as delay may operate as a waiver. All original papers in actions in the Supreme Court, New York and Bronx Counties, and in the County Court, Bronx County, with proof or admission of service, must be filed with or mailed to the clerk not later than the day after service (§ 1245A). In other cou^-ts, if a party does not file his pleadings within ten days his opponent may obtain an order directing filing within a time specified or that the action be deemed abandoned (§ 824). 3. Changing the Venue. The Code prescribes certain rules respecting the place of trial when the action is brought in the Supreme Court (§ 991). Thus where it affects real property within the state or an interest therein, e. g., ejectment, partition, dower, foreclosure &c., it must be tried in the county where such property or some part thereof is situated (§ 982). If brought to recover for injuries to real estate, situate with- out the state or for breach of contracts or of covenants re- lating thereto, trial may be had in the county where the parties or one of them reside and if all are non-residents in any county (§ 982a) . Prior to the enactment of this sec- 162 CODE PRACTICE IN NEW YOEK tion, the authorities had been uniform that the courts of New York had no jurisdiction of an action for damages for injuries to foreign land (Brisbane v. Penn. R. Co., 205 N. Y. 431). Actions to recover a penalty or forfeiture, against a pubUc officer and to recover a chattel distrained must be tried where the cause of action or some part thereof arose (§ 983). Other actions are tried in the county in which one of the parties resided at the com- mencement. If neither are residents the county may be designated by the plaintiff (§ 984). If the proper county is not designated in the complaint, the defendant if he wishes to take advantage of the ir- regularity must apply for a change of venue (§ 985). He serves a written demand upon plaintiff's attorney with or before service of his answer, and if plaintiff's attorney does not serve a written consent to the change within five days thereafter, defendant's attorney may within ten days, serve notice of motion (§ 98Q). The court has power to change the place of trial (a) where the county designated in the complaint is not the proper county, or (b) where there is reason to believe that an impartial trial cannot be had in the proper county, or (c) where the convenience of the witnesses and the ends of justice wiU be promoted by the change (§ 987; Broderick v. de Mesa, 178 App. Div. 669; Gate v. Fisk, No. 2, 175 App. Div. 235), in which case service of a demand is not necessary (Viertels v. N. Y. 0. & W. Ry. Co., 182 App. Div. 92). To entitle the defendant to a stay of proceedings, by Rule XLVIII he must use "due diligence in preparing the motion for the earliest practical day after issue joined." The order does not stay plaintiff from taking any step except subpoenaing witnesses, without a special clause to that effect. This rule also provides for certain es- sential statements in the moving papers. Where the place of trial is changed, the subsequent MISCELLANEOUS PBOCEEDINGS PBIOR TO TRIAL 163 proceedings are had in the county to which the change is made as if it had been designated in the complaint (§ 988) . 4. Security for Costs. In certain cases, the defendant may require the plain- tiff to furnish security for costs, such as where plaintiff is or becomes a non-resident of the state, or if the action is brought in some of the coimty courts or in the city court of New York City, is or becomes a non-resident of the county or city, or is a foreign corporation, or a person imprisoned for a crime, or, if after the action is commenced, he is adjudicated a bankrupt or sentenced to the state prison for a term less than Mfe (§§ 3268, 3269). But se- curity cannot be required where there are two or more plaintiffs unless the defendant is entitled to require it of all of them (§ 3270) . In other cases, as where the action is brought by or against an executor or administrator as such, or the trustee of an express trust, or by an official assignee, the assignee of a receiver or the committee of an incompetent, the court may in its discretion require security to be given (§ 3271). The order directs plaintiff either to pay into court the sum of $250, or to file an undertaking and serve written notice of the payment or filing upon defendant's attorney, in the meantime stajnng proceedings on plaintiff's part (§ 3272). After service of the notice of filing, defendant may serve notice of exception to the sureties and plaintiff then serves a notice of justification (§ 3274). If upon justification, the sure- ties are found sufficient, the judge annexes the written examination, if any, to the undertaking, indorses his allowance thereon and causes them to be filed (§ 3275). If later on, it is shown that the sum specified in the under- taking or the amount of the payment is insufficient, or that one or more of the sureties have died or become in- solvent, or that his or their circumstances have become 164 CODE PRACTICE IN NEW YORK SO precarious that the security is insufficient, an order may be made requiring an additional undertaking or payment (§ 3276) . If plaintiff fails to give security when directed, the defendant may have the complaint dismissed (§ 3277). Attorneys should note that in cases where the defendant is entitled to security, the plaintiJBf's attorney is liable for costs to an amount not exceeding $100 until security is given. He may, however, relieve himself from liability by filing and procuring the al- lowance of an undertakng (§ 3278). 5. Tender and Offers. The Code does not attempt to determine the effect of a tender before suit which is regulated by common law rules. To make the tender effectual, defendant must pay the money into court and allege that fact in his answer (Becker v. Boon, 61 N. Y. 317). If the sum is rasufficient, the running of interest and costs is not suspended but the amount tendered is simply credited on the judgment (Hoffman v. Rose Dress Co., Inc., 179 App. Div. 57). The Code allows a tender after suit where the complaint demands a money judgment 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 injury to person or property. It must include the costs of the action up to the time when it is made (§ 731). It will be observed that in certain cases the damages need not be Uquidated. The amount must be paid into court and notice in writing served upon plaintiff's attorney, within ten days after the tender (§ 732). The effect of a tender is that the sum brought into court becomes the property of the plaintiff whatever may be the result of the action. The defendant bids his money an eternal farewell. Even though the jury may render a verdict for the defendant, the money still be- MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 165 longs to the plaintiff (Taylor v. Brooklyn El. R. Co., 119 N. Y. 561). If the amount of the tender equals or exceeds plaintiff's recovery with his costs to the time when tender was made, plaintiff can recover no costs or interest from that time, but must pay defendant's costs therefrom (§733). If plaintiff accepts the tender and proceeding in the action, recovers a greater amount, the sum tendered must be deducted from the recovery and judgment rendered for the residue. Plaintiff's right to recover costs is then determined by the amount of such residue (§ 734). If he does not accept, he has judgment for the full amount and the sum deposited is credited on the execution. If defendant does not wish to make a tender he may (1) offer to hquidate the damages conditionally, or (2) offer to compromise. The offer to liquidate conditionally is only permitted in actions to recover damages for breach of a contract. Defendant here serves with his answer a written offer that if he fails in his defense, damages may be assessed in a specified sum. If plaintiff serves notice that he accepts and damages are awarded to him on the trial, they must be assessed accordingly (§ 736). If plaintiff fails to accept he cannot prove the offer at the trial. But if the damages awarded to him do not exceed the sum offered, defendant may recover the ex- penses incurred in preparing for the trial of the question of damages (§ 737). The offer to compromise is permitted in any kind of an action, except, of course, in matrimonial actions. Here defendant serves a written offer to allow judgment to be taken against him for a sum or property or to the effect therein specified with costs, If plaintiff accepts, he serves a written notice and files the summons, com- plaint and offer with proof of acceptance and thereupon the clerk enters judgment accordingly. If he does not 166 CODE PRACTICE IN NEW YORK accept he cannot give the offer in evidence at the trial, but if he fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, but must pay costs from that time (§738). Where defendant sets up a counterclaim to an amount greater than plaia- tiff's claim, or sufficient to reduce plaintiff's recovery below $50, plaintiff may serve a similar offer to compro- mise with like effect (§ 739). The offers to liquidate damages conditionally and to compromise and their acceptance must be subscribed by the party himself or by his attorney, but ui the latter event, the attorney's afl&davit must be annexed to the effect that he is duly authorized (§ 740). 6. Proceedings upon Death, Disability or Transfer. At common law, when a sole party to a legal action died before trial the action abated and there was no way to revive or continue it. But chancery suits could be revived or continued by petition to the court or by bUl of revivor (Evans v. Cleveland, 72 N. Y. 486, 488). Where the cause of action at common law did survive, i. e., actions on contract and torts which were not of a personal nature, it was necessary to bring a new suit (see Chapin on Torts, pp. 117 et seq.). The inconve- ience of this practice led to the adoption of the rule that where the cause of action or right to the relief survives or continues, the action or special proceeding will not abate (§ 755). Under present practice, therefore, in case of a transfer of interest or devolution of Uability, the action continues by or against the original party unless the court directs a substitution (§ 756) . If a sole plaintiff or a sole defendant dies, provided of course, that the cause of action or right to relief survives, an order may be made continuing the action or proceeding by or against the representative or successor in interest (§757). Though MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 167 the language of this action is that the court "must" make such order, it has been held that the court has discretion and can deny the application for laches (Lyon v. Park, 111 N. Y. 350; Shipman v. Long Island R. Co., 11 App. Div. 46). ' If one of two or more plaintiffs or one of two or more defendants dies and the entire cause of action survives to or against the others, the action may proceed in favor of or against the survivors (§ 758). In other words, where there are joint plaintiffs and one of them dies, the sur- vivors can proceed without bringing in the representa- tives of the deceased. Such is the case when actions are brought by a co-partnership. Here the action goes on imtil the last survivor dies and then the case may be revived in the name of his personal representative. A like rule applies where part only of the cause of action survives, though the court may require the successor of the deceased to be brought in (§ 759). Where the decedent's successor is brought m, the usual rule applies, namely, where the person makes application in his own behalf, an order to that effect directing an amendment is sufficient. But where the application is made by plaintiff to bring him in as defendant, the order directs the issuance of a supplemental summons and the making of supplemental pleadings (§ 760). Under § 761, a defendant or one whose interest is af- fected may take the initiative and obtain an order direct- ing that the action abate unless it is continued by the proper parties within a time specified, not less than six months nor more than one year thereafter. This is only reasonable because the defendant should not be required to wait an indefinite time and run the risk of his witnesses' loss of memory, departure from the state &c. If death occurs after the culminating point of the 168 CODE PRACTICE IN NEW YORK action is reached, namely, when there has been an accepted offer to allow judgment or the verdict in the jury case or the report by a referee or the decision by a court in a non-jury action, or an interlocutory judgment, there is no abatement since the remaining proceedings are merely formal and the plaintiff's rights have been ascertained and fixed (§§ 763-765). Of course where the action or proceeding is brought by a pubUc officer, receiver or other trustee, his death or removal does not work an abate- ment since he acts merely in his official capacity (§ 766). 7. Bills of Particulars. It may be that a party requires a more detailed state- ment of his opponent's claim or demand than is given in the pleadings, in which case he endeavors to obtain a bill of particulars. Section 531 provides for two cases (1) where the relief is a matter of right; (2) where it is within the discretion of the court. The first are actions upon an account. As already stated, the pleader need not set forth all the items in his pleading, but if he fails to do so, he must deliver to the adverse party withLu ten days after written demand, a copy of the account which must be verified if the pleading is verified. If he fails to do so, "he is precluded from giving evidence of the account." The second half of the section provides that a bill of particulars may be directed in any case. These discre- tionary cases include both contract and tort actiotis. Thus a court may order a bill of particulars in an action for criminal conversation, setting forth the times and places at which plaintiff expects or intends to prove that the acts of adultery took place (Tilton v. Beecher, 59 N. Y. 176. For further illustrations see Moore v. American Molasses Co., 179 App. Div. 505; Boskowitz v. Sulzbacher, 124 App. Div. 682; Kennedy v. Mostert, 48 App. Div. 49). Nor can this power be exercised only in behalf of the de- MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 169 fendant. In favor of the plaintiff as well, the court may- order the defendant to give the particulars of the facts which he expects to prove as an affirmative defense (Dwight V. Germania Life Ins Co., 84 N. Y. 493; Hav- holm V. Whale Creek Iron Works, 159 App. Div. 578; Jones V. McDonough, 143 App. Div. 178). It is almost a settled rule that a bill of particulars wiU not be required prior to the service of an answer. It is not enough for defendant to assert that it is necessary for his defense, as it cannot be said that a defense wiU be made until an issue is raised. Ignorance of the plaintiff's claim is not sufficient, since a denial of any knowledge or information sufficient to form a behef may be inter- posed (Schultz V. Rubsam, 104 App. Div. 20; American C. I. Co. V. Bondy, 17 App. Div. 328). This apphes where particulars are sought for the purpose of preparing an amended answer (Sands v. Holland Torpedo Boat Co., 115 App. Div. 151). But the rule is not invariable (Ziegler v. Garvin, 84 App. Div. 281; Nash v. Spann, 13 App. Div. 226). A party is not permitted to "fish for evidence" and hence it is not the office of a bUl of particulars to furnish the names of witnesses (Wales Mfg. Co. v. Lazzaro, 18 Misc. 352). The purpose of the biU "is to amplify the pleadings and to indicate with more particularity than is ordinarily required in a formal plea, the nature of the claim made in order that surprise upon the trial may be avoided and the issues may be more intelligently met" (Dwyer v. Slattery, 118 App. Div. 345, 346). But the motion will not necessarily be denied merely because the facts are within the knowledge of the party seeking the bill. " The question in appHcations of this kind is not what may have been the actual facts, nor the knowledge of the opposite party concerning them but rather what the aggrieved party claims them to be. What they are claimed 170 CODE PRACTICE IN NEW YORK to be is the issue that is to be met and tried, and where the pleading is not specific in this regard, a bill of par- ticulars is properly ordered to point out such claims and thus make definite the issues to be litigated" (Dwyer v. Slattery, supra; Havhohn v. Whale Creek Iron Works, 159 App. Div. 578). Still, applications have been denied on this ground (American Transfer Co., v. Borgfeldt & Co., 99 App. Div. 470; Slingerland v. Corwin, 105 App. Div. 310). Now as to the procedure. Usually a demand is served although it is not essential except where the bill is a matter of right. If served in other cases, the coiui; may however take that fact into consideration and where the party is clearly entitled to relief, award costs of motion. The affidavit used on the application should be made by the party, though the stringency of this rule has been somewhat relaxed and particularly when it appears that the attorney was familiar with the material facts and was in a position to make the affidavit as well if not better than the cUent (General Film Co. v. Liverpool & L. & G. Ins. Co., 181 App. Div. 682). If the motion is granted, an order is made as indicati by the following form: At a Special Term of the Supreme Court of New York, held in and for the County of New York at Part I thereof in the County Court House, in the Borough of Manhattan, in the City of New York on the day of ,19 . V Present — Hon. Edward Evans, Justice. Andrew Atkins, Plaintiff, against Benjamin Bristow, Defendant. A motion having regularly been made by the defendant that the MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 171 plaintiff be required to furnish a bill of particulars as hereinafter re- cited, and said motion having come on to be heard, Now on reading the complaint and answer herein now on file in the office of the clerk of the county of New York and on reading and filing the notice of this motion, -with proof of due service thereof and the affidavit of Benjamin Bristow, sworn to the day of , 19, in favor of said motion and the affidavit of Andrew Atkins, sworn to the day of , 19, in opposition thereto, and after hearing Daniel Darling, Esq., attorney for the defendant in support of said motion, and Charles Carter, Esq., in opposition thereto, and due deliberation having been had, it is hereby Obdebed that within ten days after the service of a copy of this order with notice of entry, plaintiff serve on defendant's attorney, a verified bill of particulars in relation to the allegations contained in the paragraphs numbered "Four," "Five" and "Six" of the com- plaint and setting forth in what respect the said defendant, his agents or servants, have been guilty of negligence, together with the times and places of the same and the names of such servants and agents, also the particular personal injuries which the plaintiff is alleged to have sustained and the particular nature of the permanent injuries which the plaintiff alleges that he has suffered. It is further ordered that the defendant recover of the plaintiff the sum of ten dollars; costs of this motion. Enter, E. E. J. S. G. If the party is unable to furnish the desired information he should so state and it is better practice to offer a stipu- lation that he will furnish it if discovered before the trial (Losie V. Royal Indemnity Co., 179 App. Div. 439). The order should not contaia a provision that in the event of non-compliance, the party wUl be precluded from giving evidence at the trial. If he fails to comply, a motion should be made and a separate order entered to that effect (Posner v. Rosenberg, No 1, 149 App. Div. 270; Smith v. Bradstreet Co., 134 App. Div. 567; Loscher V. liager, 124 App. Div. 568). If the bill is not sufficiently ejqphcit the better practice is to return it and whether it be retained or returned, a motion should be made for a 172 CODE PRACTICE IN NEW YORK more specific bill. If it be returned, the party serving it may make a motion to compel its acceptance. On such a motion, the question, whether or not it comphes with the order should be decided. A motion cannot be made to preclude, merely because the bill is claimed to be de- fective. The opposing party should be given an oppor- tunity to comply with the terms of the order (Reader v. Haggin, 114 App. Div. 112). The following forms will indicate the method to be pursued : AFFIDAVIT ON MOTION TO PRECLUDE Supreme Court of New York, County of New York. Andrew Atkins, Benjamin Bristow, Plaintiff, Defendant. •ss: State of New York, County of New York. Daniel Darling, being duly sworn, deposes and says that he is the attorney for the defendant in the above entitled action ; that an order was heretofore duly made and the same was duly entered and filed in the office of the Clerk of the County of New York on the day of J 19 , wherein and whereby the plaintiff was required to serve a verified bill of particulars within ten days after the service of said order with notice of entry on plaintiff's attorney in relation to the allegations contained in the paragraphs numbered "Four," "Five" and "Six" of the complaint and setting forth (state particulars required by the order). Said order so referred to is to be deemed in- corporated in this affidavit. A copy thereof was duly served on the plaintiff's attorney on the day of , 19 . On the day of , 19- , the plaintiff's attorney served on the de- fendant's attorney a bill of particulars which failed to comply with said order, and thereupon the defendant's attorney returned said bill of particulars with a notice, stating that it was returned because of said non-compliance. MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 173 That thereafter and on the day of , 19 , a fur- ther order was made by this court, which was duly entered and filed in the office of the clerk of the County of New York on the day of , 19 , wherein and whereby the said plaintiff was required to furnish another bill of particulars, giving further particulars in relation to the aforesaid paragraphs of the complaint and with re- spect to the matters and things heretofore mentioned in addition to those furnished in said bill of particulars. Reference is made to said second order together with the defective bill of particulars on file in the office of the clerk of the County of New York, as if such order and such bill were incorporated in this affidavit. The second order was duly served on plaintiff's attorney on the day of ) 19 , together with notice of entry thereof as appears by the affidavit of Mortimer May, sworn to the day of , 19 , and hereunto annexed. More than ten days have elapsed since said ser\dce and said plaintiff has wholly failed to furnish any further particulars and has served no further bill of par- ticulars upon defendant's attorney. Deponent therefore prays that an order be made precluding the plaintiff from giving evidence on the trial of this action concerning the allegations contained in the paragraphs of the complaint numbered "Four," "Five" and "Six" and for such other and further relief as may be proper, together with the costs of this motion. Sworn to, &c. Daniel Dabling. ORDER At a Special Term of the Supreme Court of New York, held in and for the County of New York, at Part I thereof in the County Court House in the Borough of Manhattan, in the City of New York on the day of , 19 . Present — Hon. Edward Evans, Justice. Andrew Atkins, Plaintiff, Benjamin Beistow, Defendant. A motion having regularly been made by the above named defend- ant, to preclude the plaintiff from giving evidence at the trial of thi.s 174 CODE PRACTICE IN NEW YORK V action in relation to the allegations contained in paragraphs "Four," "Five" and "Six" of the complaint, because of the failure of the said plaintiff to comply with two several orders of this covtrt to furnish a verified bill of particulars with respect thereto and said motion having regularly come on to be heard, Now on reading the summons and complaint, the order of this court dated the day of , 19 , and the further order of this court dated the day of , 19 , together with the original bill of particulars furnished by the plaintiff to the de- fendant, all of which are on file in the office of the clerk of the County of New York, and upon reading and filing the afiidavit of Daniel Darling, Esq., sworn to the day of , 19 , and the affidavit of Mortimer May, sworn to the day of , 19 , in favor of said motion, and the affidavit of Andrew Atkins sworn to the day of , 19 , in opposition thereto, and after hearing Daniel Darling, Esq., attorney for the defendant, in support of said motion and Charles Carter, Esq., in opposition thereto and due deliberation having been had, Now on motion of the said Daniel Darling, Esq., it is hereby Ordered that plaintiff be and he is hereby precluded from giving any evidence upon the trial of this action in relation to the allegations contained in the paragraphs numbered "Four," "Five" and "Six" of the complaint, and it is further Ordered that the defendant recover from the plaintiff ten dollars, • costs of this motion. Enter, E. E. J. S. C. Where there has been no attempt to comply with the first order requiring the service of a bill of particulars and no bill has ever^ been served, the other party may move immediately to preclude without askiug for a fiirther bill.(Losie v. Royal Indemnity Co., 179 App. Div. 439). 8. Consolidation. The court may consolidate two or more actions in favor of the same plaintiff and against the same defendant, provided the causes of action may be joined (§ 817; MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 175 Wilson V. Locke, 116 App. Div. 421) and where one is pending in the Supreme Court and the other in another court, the Supreme Court may remove to itself the action pending in the lower court (§ 818; Goepel v. Rob- inson Machine Co., 118 App. Div. 160). ConsoHdation may be very desirable in certain cases to save time and expense. But since the purpose of the statute is "to prevent a plaintiff from harassing a defendant by prosecut- ing different suits for causes of action which could be joined" (Miller v. Baillard, 124 App. Div. 555, 557), there can be no consoUdation where the plaintiff in one is the defendant in the other (Martin v. Prentice, 133 App. Div. 741; Waiontha Knitting Co., Ltd., v. Hecht & Campe, Lie, 58 Misc. 350). Furthermore, since the matter rests in the discretion of the court, it will not be permitted where it will prove prejudicial to the interests of a party (Argyle Co. v. Griffith, 128 App. Div. 262). Under § 819 where separate actions are commenced against two or more joint and several debtors in the same court and for the same cause of action, plaintiff may consoli- date them. 9. Interpleader. Under Chancery practice, if there were conflicting claims by several parties, the person against whom they were made might escape Uability consequent upon a possible erroneous determination of ownership, by bringing a bUl of interpleader, pursuant to which he made deposit into court and the claimants were required to fight out the controversy between themselves. The Code provides two remedies: first, interpleader by a motion, second, by action. The first is governed by § 820; the second by § 820a. Thus, under the former section, a defendant in an action on contract, in ejectment, or replevin, may before 176 CODE PRACTICE IN NEW YORK answering, upon proof that a claim is made by a third party for the same debt or property, without collusion with him, obtain an order substituting the third party in his place and discharging him from liability upon 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 if he disputes the liabiUty or claims some interest in the subject-matter, his application may be for an order joining the other claimant as a co-defendant. The granting of a motion of interpleader is within the court's discretion (Barry v. Mutual Life Ins. Co., 53 N. Y. 536). "The Code provision for interpleader by order, upon motion was not intended to create a new ground for interpleader, but to enable a person sued on a claim where an action of interpleader could be brought, to bring the third person, making a claim to the fund or property, into court in a summary way upon motion . . . without the expense and delay to the stakeholder that would result from an action of interpleader. It is not a new but a concurrent and more sioiple remedy" (Pouch V. Prudential Ins. Co., 204 N. Y. 281, 284). Under § 802a, the debtor may take the initiative without waiting to be sued. It is provided that where a sum is due and payable under or on account of a con- tract and the whole or any part exceeding $50 shall be claimed by adverse claimants, the debtor may bring suit demanding judgment of interpleader. After service Npf the summons and complaint, he may make application for an order permitting and directing payment into court and that thereupon he be discharged from liabihty. Such an order may be made upon satisfactory proof of the facts alleged in the complaint and that the whole or part of the debt is clained adversely without collusion on plaintiff's part and that the amount is not in dispute. With respect to §'820 it was held in the case last cited MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 177 (Pouch V. Prudential Ins. Co., supra), that it is essential to show that the alleged claim has some reasonable basis on which to rest. While not necessary to show that a claimant 'wUl probably succeed in establishing his claim, "a mere assertion of claim by another without alleging anything whatever on which to base it, is not enough" (p. 286). Section 820a it was said should re- ceive a like construction (Sulzberger v. Selkir, 153 App. Div. 749). It will be observed that under § 820 the ap- plicant if he disputes the liabiUty or asserts an interest in the subject-matter of the controversy, may have the outside claimant joined with him as a co-defendant. But under § 820a, the plaintiff must occupy the position of a mere stakeholder. "It has repeatedly been held that when the amount of the debt is not in dispute, when the conflicting claims are to substantially the same debt, when plaintiff stands indifferent between the rival claim- ants, when the only question arises from the doubtful rights and conflicting claims of the several defendants as be- tween themselves, the real parties in interest are the defendants. Plaintiff may then be discharged from liabil- ity by paying the amount of the debt into court, but when the amount of the fund is in dispute and plaintiff does not stand indifferent, interpleader will not he" (Empire Engineering Corp. v. Mack, 217 N. Y. 85, 92; for illustrative cases see Crane v. McDonald, 118 N. Y. 648; Dardonville v. Smith, 133 App. Div. 234). 10. Dismissal for Neglect to Serve Sununons or to Proceed. It has been seen that any person may be made a defend- ant without whose presence a complete determination of the controversy caimot be had (see supra, p. 41). If plaintiff unreasonably neglects to serve the summons upon one or more such defendants, the court miay in its 178 CODE PRACTICE IN NEW YORK disci'etion, upon the application of a defendant who has appeared, dismiss the complaint as to him (§ 821). Furthermore if the plaintiff having begun his action, unreasonably neglects to proceed against a defendant or one or more defendants against whom a separate judg- ment may be taken, the court may on application of the defendant or defendants against whom he so neglects to proceed dismiss the complaint as against the moving party or parties (§ 822). Ride XXXVI provides what shall constitute unreasonable neglect to proceed, namely, where plaintiff has failed to bring the issues to trial ac- cording to the course and practice of the court and younger issues have been tried in their regular order. If, however, it may be made to appear that plaintiff's neglect has not been unreasonable, he may be permitted on terms to bring the action to trial at a future term. The following affidavit will indicate the course to be pursued: Supreme Court of New York, County of New York. Andrew Atkins, Benjamin Bristow, Plaintiff, Defendant. State of New York, County of New York. Daniel Darling, being duly sworn, deposes and says: I am the at- torney for the defendant in the above entitled action. Issues of fact were joined herein by service of an answer on the day of , 19 . The plaintiff has failed to bring the same to trial according to the course and practice of this court and younger issues have been tried in their regular order in the said court in and for the County of New York, to wit: the action of Osgood v. Perkins, the issue of which was joined on the day of , 19 , and was on the day of , 19 , tried in its regular order, at Trial Term, Part XVI. Sworn to before me, &c. Daniel Darling. MISCELLANEOUS PKOCEEDINGS PBIOR TO TRIAL 179 11. Depositions. (A) Taken and to he Used Within the State. Under certain conditions, a party to an action or a prospec- tive witness may be examined in advance of the trial. The rules under which this may be done are set forth in §§ 870-913. It is unfortunate that the language of the Code is in many instances decidedly obscure and lines of separation have not been clearly defined. Roughly, it may be said that proceedings to take deposi- tions may be divided as follows: I. Depositions de bene esse. II. Depositions to frame a pleading. III. Depositions to prepare for trial. rV. Physical examinations. V. Discovery and inspection. VI. Depositions for use on a motion. (I) Depositions De Bene Esse. The phrase de bene esse means "conditionally." The object is to perpetuate the testimony. The examination may be of a party or a witness and either before or after the action is commenced, for it is provided by § 870 that the deposition of a party or one who expects to be a party may be taken at his own instance or at the instance of an adverse party or by a co-plaintiff or a co-defendant at any time, before or during^ the trial, and § 871 sanctions the deposition of one not a party whose testimony is material and nec- essary. Section 872 prescribes the allegations which must be set forth. The .affidavit should be drawn with extreme care and every allegation required by this section should be inserted. Subdivision 4 makes it necessary to state that the testimony of the person to be examined is material and necessary for the party making such application or the prosecution or defense of the action, and by Rule LXXXIII the facts and circumstances showing such materiality and necessity must be specified. 180 CODE PRACTICE IN NEW YORK If an action is pending, it must appear 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 rendering it proper that he should be examined (Warner v. Dockendorff, 180 App. Div. 72). This however is not applicable to a case where the person to be examined is a party (§ 872, subd. 5). Originally there was no distinction in this respect between a party or proposed party and a witness and though nominally prospective departure or more particularly sickness or infirmity need not be shown except as to a witness, yet the court will be less inclined to give favorable consideration where a party actual or prospective is to be examined unless some reason is shown why the testimony should be perpetuated. If, however, no action is pending, reason for perpetuation must be shown (§ 872, subd. 6) . Where the deposition is that of a third party, it cannot be read in evidence at the trial until it has been satisfactorily proved that the witness is dead or is imable personally to attend by reason of his insanity, sickness or other infirmity or that he is confined in prison or absent from the state so that his attendance cannot with reasonable diligence be compelled by subpoena (§ 882). ^ (II) Depositions to Frame a Pleading. Apparently § 870 allows the examination of a party before action for the purpose of framing a pleading, though this is doubt- ful (Matter of Moto Bloc Import Co., No. 1, 140 App. Div. 532). In practice it is a rarely if ever allowed, such examination being permitted for the purpose of perpet- uating testimony. The reason is that since plaintiff may frame his pleading on information and beUef, the case must be very exceptional when he will be unable to set forth a prima facie cause of action in this manner. Having MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 181 done so, he may then as hereinafter stated, take the ex- amination of the defendant in many cases and should an amendment become necessary, he can apply therefor. Nor can a third party be examined before the action is started except de bene esse for the purpose of perpetu- ating testimony (Matter of Anthony & Co., 42 App. Div. 66; Long Island Bottlers' Union v. Bottling Brewers' Assn., 65 App. Div. 459). Hence as a matter of procedure, it is better in every case to serve a summons before apply- ing for an order to take testimony. When, however, suit has been started and it appears that there is a cause of action or defense, an examination may be had for the purpose of enabling a party to frame his pleading inteUigently. Each application must be determined upon its own facts with a view to facilitating the prompt and accurate formulation of the issues to be tried (Mendelson v. Newborg, 155 App. Div. 892). But it is a "settled rule that an examination of a party or a witness will not be allowed either in advance of or after action brought for the purpose of discovering whether or not the appUcant or the plaintiff has a cause of action" (Matter of Moto Bloc Import Co., No. 1, 140 App. Div. 532, 534; Matter of SchoeUer, 74 App. Div. 347; Boyle V. Municipal Gas Co., 96 Misc. 578). (Ill) Depositions to Prepare for Trial. These are the coiiimonest forms of examination . The order is granted ex parte on the proof required by § 872. Rule LXXXII should again be noted requiring the affidavit to specify facts and circumstances showing that the examination is material and necessary (Terry v. Ross Heater & Mfg. Co., 180 App. Div. 714). It wUl not be enough that a mere allegation to that effect is made. Facts must be alleged from which the court can reach the proper con- clusion (Rogers v. Adler, 137 App. Div. 197). It has been intimated that the granting of the order is 182 CODE PRACTICE IN NEW YORK discretionary (Jenkins v. Putnam, 106 N. Y. 272), but, this is not quite correct for the courts regard the right of examination of an adverse party before trial as a sub- stantial right which should not be denied if the appU- cation is made in good faith and for a proper purpose (Kombluth v. Isaacs, 149 App. Div. 108). There are, however, certain well recognized hmitations. For in- stance, plaintiff will not be permitted to start upon a "fishing expedition," that is, attempt to pry into his adversary's case to discover what evidence the latter proposes to introduce at the trial, for the theory of the examination is that the applicant should be enabled to obtain testimony to establish his own case or defense or to meet and overcome the case or defense of the other party (H. G. Vogel Co. v. Geo. Backer Const. Co., 148 App. Div. 639). Hence an examination cannot be had to find out the names of third persons who will be wit- nesses (Elson V. lingerer, 162 App. Div. 896) or where it is apparent that the real purpose is to cross-examine a defendant before trial thus obtaining the advantage of knowing what he will testify to in defending himself (bryden v. Lattimer, 88 Misc. 473). Here as where the deposition is taken de bene esse, the right to examine a witness before trial and the right to examiae a party depend upon entirely different groimds. Subdivision 5 of § 872 apphes to the exairdnation of a witness. It has been held at least in the fijst department, that this must be read in connection with § 882, which specifies what proof must be made to use the deposition upon the trial, and that the special circumstances rehed upon must be such as to justify a well grounded appre- hension that the examination of the witness cannot be had upon the trial as well as before trial (American Woolen Co. v. Altkrug, 139 App. Div. 671). For instance, it will not be enough that the witness is a non-resident MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 183 where it appears that his business requires his daily attendance in New York, that he is in good health and has no intention of leaving this state, except for the purpose of going home each evening (Rudini v. North British & Merc. Ins. Co., 91 Misc. 486; cf. Automobile Club V. Canavan, 128 App. Div. 426). It is, of course, impossible to discuss this difficult question of procedure in an elementary work like the present, and reference will be made merely to illustrative cases where examinations have been allowed (Stevens V. Weygandt, 163 App. Div. 543; Mason v. N. Y. Rev. Co., 154 App. Div. 651; Kornbluth v. Isaacs, 149 App. Div. 108; Tisdale Lumber Co. v. Droge, 147 App. Div. 55). The following shows the form of order and affi- davit used in one case: ORDER New York Supreme Court, New York County. Andrew Atkins, Plaintiff, The Daily Planet Publishing Co. Defendant. On reading the annexed affidavit of Benjamin Bristow sworn to the day of j 19 i ^Jid the pleadings herein, and it appearing therefrom that the plaintiff above named demands judgment herein against the defendant for damages alleged to have been sus- tained by him by reason of the publication by defendant in its news- paper "The Daily Planet," of an alleged libelous article wherein as alleged in the complaint, plaintiff is charged with larceny, unlawfully intercepting the mails, swindling, dishonesty and fraud; and it further appearing that defendant has alleged in its amended answer herein, facts in justification of such alleged libelous charges and has stated in substance that plaintiff in 1910 obtained by false representations and pretenses, large sums of money from one Margaret Mays and one Otto Osbom, thereby committing larceny, and that in August, 1910, plain- tiff unlawfully and with intent to obstruct the mail, intercepted a letter 184 CODE PRACTICE IN NEW YORK addressed to one Margaret Mays in violation of the statute of the United States in such case made and provided, and that plaintiff was thereafter charged with larceny and that plaintiff pleaded guilty to an indictment charging him with imlawf ully intercepting the mail ; as are more fully set forth in the answer herein and in the affidavit of Benjamin Bristow hereto annexed, at folios 7 to 18, inclusive, thereof; and it further appearing that defendant has applied for an order for examination of the plaintiff herein as a party before trial in order to prove the allegations set forth in said answer herein and in the affidavit hereto annexed: Now on motion of Daniel Darling, Esq., attorney for the defendant herein, I hereby Order that the plaintiff herein,* Andrew Atkins be examined as a party herein before trial and his deposition taken pursuant to sections 870, 872 and 873 of the Code of Civil Procedure and for that purpose that he appear and attend before me or one of the justices of this court, sitting at Special Term, Part II thereof, held at the Coimty Court house in the Borough of Manhattan in the City of New York on the day of , 19 , at 10.30 o'clock in the forenoon of that da,y and submit to an examination and testify concerning (state matters as to which examination is desired. Such phrases as "con- cerning the matters set forth in the annexed affidavit" or "concerning the issues" or "concerning the matters relevant to the issues in this action," or "concerning the matters which are relevant to the issues in this action and are stated in said affidavit" or phrases equally broad should not be used. Bamberger v. Cooke, 181 App. Div. 805; Verdi v. Michael Nocenti Co., 177 App. Div. 489; Tyler v. Twin City Power Co., 179 App. Div. 652.) And I hereby further Order that a copy of this order and the affidavit hereto annexed be served on Andrew Atkins, the plaintiff herein, and on Charles Carter, Esq., his attorney, within this state, on or before the day of , 19 . Edward Evans, Dated Justice of the Supreme Court of the State of New York. * If the party to be examined is a corporation, the order should provide for the examination of the corporation itself. It is improper to provide for the examination of its officer or agent as an adverse party where such officer or agent is not in fact a party. (Verdi v. Michael Nocenti Co., 177 App. Div. 489; Kram v. Jewish World Pub. Co., 176 App. Div. 840.) MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 185 AFFIDAVIT New York Supreme Court, New York County. Andrew Atkins, Plaintiff, Index No. , year The Daily Planet Publishing Co. Defendant. State of New York, 1 f SS ' County of New York. J Benjamin Bristow, being duly sworn, deposes and says: I am treasurer of the defendant above named. This action was coromenced by service of summons on the day of , 19 . The complaint was served on the day of , 19 , and issue was joined by ser\'ice of an answer on the day of , 19 . This action is still pending and undisposed of. The names and residences of the parties to the action and the facts as to whether or not they have appeared by attorney or otherwise, are as follows: The sole plaintiff is Andrew Atkins who resides at Plaintiff appears in this action by Charles Carter, Esq., his attorney, who resides at and whose office address is at The sole defendant is the Daily Planet Publishing Co., a domestic cor- poration, having its principal office and place of business at The defendant appears herein by Daniel Darling, Esq., as its attorney who resides at and said attorney's office address is at This action is brought to recover damages alleged to have been sus- tained by plaintiff by reason of the alleged publication by defendant in the newspaper "The Daily Planet" of alleged Ubelous matter con- cerning the plaintiff. The nature of the defenses set up by the de- fendant are a general denial, justification, privilege, and partial de- fenses in mitigation, reduction and limitation of damages. The next Trial Term at which this action is triable is to be held in the County of New York in , 19 , and the judgment demanded in the complaint herein is $25,000 damages and costs. I beg leave to submit herewith and refer to upon this apphcation, the pleadings herein all of which have been served by or upon plaintiff's attorneys with the same force and effect as if the same were hereto annexed and made parts of this affidavit. 186 CODE PRACTICE IN NEW YORK The name and residence of the person to be examined is as follows: Andrew Atkins, who resides at The testimony of said Andrew Atkins, the plaintiff herein, is mate- rial and necessary for the defendant in the defense of this action and for the purpose of reading the same as evidence upon the trial hereof, and defendant intends to use such testimony upon said trial. Said testimony is material and necessary in the defense of this action to prove the following allegations which are set forth in paragraphs VII and XIX of the answer herein and incorporated by reference in para^- graphs IX, XII, and XVIII thereof. That on or about December, 1909, plaintiii became acquainted with one Mrs. Margaret Mays who was then Uving at in the City of New York, and that thereafter and from, in, or about February, 1910, until August, 1910, plaintiii boarded in the home of said Mrs. Mays. That at divers times during the period from March to August, 1910, while plaintiff was boarding with said Mrs. Margaret Mays as aforesaid, plaintiff falsely represented and stated to said Mrs. Margaret Mays that he, the plaintiff, was the owner of a certain patented window attachment and that he, the plaintiff had the ex- clusive right to sell and manufacture such patented window attach- ment in the United States, and that at such times in the City of New York, by means of such false representations and pretenses, plaintiff, with intent to defraud, obtained from said Mrs. Margaret Mays divers sums of money, the property of said Mrs. Margaret Mays amounting in all to upwards of $1,200. That thereafter and on or about July 6, 1910, in the City of New York, plaintiff falsely represented and stated to one Otto Osbom that he, the plaintiff, was the owner of a certain patented window at- tachment, and that he, the plaintiff, had the exclusive right to manu- facture and sell such patented window attachment in the United States and plaintiff did then and there by means of such false representations and pretenses, with intent to defraud, obtain from said Otto Osbom the sum of 112.50, the property of said Otto Osbom. That thereafter and on or about August 5, 1910, at the home of said Mrs. Margaret Mays at in said City of New York, plaintiff in order to prevent the said Mrs. Margaret Mays from dis- covering that he, plaintiff, did not in fact own the aforesaid patented window attachment nor the exclusive right to manufacture and sell the same in the United States, as plaintiff had theretofore falsely repre- sented to her, unlawfully and with intent to obstruct the mail, did take from a letter carrier of the United States a letter addressed to MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 187 said Mrs. Margaret Mays before the said letter had been dehvered to the said Mrs. Margaret Mays, in violation of the statute of the United States in such cases made and provided. A copy of which letter so intercepted by plaintiff, as aforesaid, is annexed to the answer herein, marked Exhibit 1. That thereafter and on or about April 7, 1910, upon a complaint made by said Otto Osbom to the police authorities of the City of New York, plaintiff was arrested by two detectives connected with the Police Department of the city of New York. That thereafter and on or about August 8, 1910, plaintiff was arraigned before one of the Magistrates of the City of New York sitting in the City Magistrates' Court, Second Division, First District, upon a complaint made by the said Otto Osborn charging plaintiff with petit larceny in that he, the plaintiff, had obtained from him, said Otto Osbom, the sum of $12.50 by false pretenses, copy of said complaint and the warrant issued thereon being annexed to the answer herein, marked Exhibit 2. That plaintiff was, upon said arraignment held by said City Magistrate for further examination. That on or about October 10, 1910, plaintiff pleaded guilty in the United States District Court for the Eastern District of New York to the first count of an indictment found against him by the United States Grand Jury for said district, a copy of which is annexed to the answer herein, marked Exhibit 6. That aU of the foregoing alleged facts are necessarily within the personal knowledge of Andrew Atkins, the plaintiff herein, and are not within the personal knowledge of deponent or of defendant or of any of the officers of the defendant. The examination of the plaintiff Andrew Atkins concerning the foregoing facts and concerning his relations with Otto Osbom and Mrs. Margaret Mays and the proceed- ings in Court is material and necessary to be taken before trial since it will if plaintiff testifies to the facts, render vmnecessary the sub- poenaing of court records and of divers persons having knowledge of the facts thereby shortening the trial of this action and saving much unnecessary labor and expense; and in any event the issues of fact herein will be more clearly defined by examining plaintiff before trial concerning the facts alleged. In deponent's opinion, for the foregoing reasons and as he is advised by defendant's counsel, the testimony of the plaintiff herein, Andrew Atkins, is material and necessary to be taken before trial pursuant to §§ 870, 872 and 873 of the Code of Civil Procedure. The defendant herein has fully and fairly stated the case in this 188 CODE PBACTICE IN NEW YORK action to its attorney and counsel, Daniel Darling, and defendant has a good and substantial defense upon the merits to the alleged cause of action set forth in the complaint herein, as it is advised by said counsel after such statement and verily believes. The sources of my information and the grounds of my belief as to the matters herein and in said answer stated to be made upon informa- tion and belief are court records which have been examined by a representative of the defendant and reports of investigations made by representatives of defendant and its attorney who have inter- viewed persons having personal knowledge of some of such facts and who have made a general investigation concerning the same. No previous application for the order applied for herein has been made. Sworn to before me, &c. „ „ Benjamin Bbistgw. Witnesses' fees must be paid or tendered when the order is served upon the party or person required to at- tend (§ 874), and service of the papers should also be made upon the attorney (§ 875). Where books or docu- ments are desired, and the party to be examined is a natural person, their production should be compelled by means of a subpoena duces tecum (Thayer v. Schley, 58 Misc. 352). But in the case of a corporation, joint-stock or other unincorporated association, the order for the ex- amination directs such production (§ 872, subd. 7). Upon the return day, the examination is had before the judge or referee as provided in the order (§ 876). Generally it is before a judge. The witness is first sworn and then all parties seek a private and quiet place in the court house, e. g., an empty coiu-t room. In the First Department this requires very diligent search as any at- torney who has ever conducted such a proceeding there can testify. Sometimes parties wiU consent to adjourn to the office of one of the attorneys though this may prove inconvenient if a dispute arises concerning the propriety of a question. Then the examination proceeds. Question and answer may be written out in longhand though usu- MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 189 ally they are taken down by a stenographer and an ad- journment had to a later day to permit transcription. If the witness refuses to answer as frequently happens, when it is urged that the question is improper, the parties and their attorneys return before the judge (or if the ex- amination is before a referee, the latter reports that fact to the court or judge) who determines whether the question should be answered (§ 880). -A Uberal poUcy is pursued in deciding the propriety of the inquiry. It has been de- clared " sufficient if it appear that such testimony may be competent, and so far as the examiuation is not entirely irrelevant to the subject-matter of the action, " and neces- sarily is within the scope of the order, "the court wiU not nor is it called upon to pass upon the strict legaMty and competency of the evidence sought to be elicited" (Guen- ther V. ilidgway Co., 159 App. Div. 74). The reason is that when the deposition is later on read at the trial (§ 881), it has merely the same effect as the oral testimony of the witness would have and an objection to the com- petency or credibility of the witness or to the relevancy or substantial competency of a question or answer may be made as if the witness was then personally examined and without being noted, on the deposition (§ 883). When completed, the examination must be carefully read to and subscribed by the person examined, certified by the judge or referee taking it and filed with the order, the stipulation or affidavit on which it was granted and proof of service (§ 880). Then as already stated, it is read at the trial (§ 881), provided that if the witness is not a party or the deposition taken pursuant to a stipu- lation, preliminary proof is required of inability to. attend or absence from the state (§ 882). Where the party to be examined is in jail, a referee may be appointed (§ 877), or a writ of habeas corpus issued (§§2008 et seq.). 190 CODE PRACTICE IN NEW YORK (IV) Physical Examination. In actions to recover damages for personal injuries the plaintiff may be directed to submit to a physical examination upon satisfactory proof that the defendant is ignorant of their nature and extent. This may be before a judge or referee. If the party to be examined is a female she is entitled to have an examination before a physician or surgeon of her own sex (§ 873) . In practice, the order names the physician. The language of § 873 is somewhat ambiguous and has been held not to authorize an order directing a physical examination apart from or independent of an examination of plaintiff before trial (Lyon v. Manhattan Railway Co., 142 N. Y. 298; Tirpak v. Hoe, 53 Misc. 529). The phy- sician is not required to make or file a report, since it is merely contemplated that he will testify on the trial like any other witness if called by either party (Mizak v. Carborundum Co., 75 Misc. 205). Where the nature of the proposed examination might possibly endanger the plaintiff's health, the court will not require the hazard to be taken (Gregory v. Acme Road Machinery Co., 175 App. Div. 473; Mizak v. Carborundxun Co., supra). (V) Discovery and Inspection. Under § 803 a party to a pending action may be compelled to produce and discover or to give to the other party an inspection and copy, or permission to take a i copy or photograph of a book, doctmienl/or other paper or to make discovery of any article or property in his possession or under his con- trol relating to the merits of the action or of the defense. This is governed by General Rules XIV, XV, and XVI (§ 804). It has been said that disclosure is authorized "for the purpose of framing pleadings or to enable a party to prepare for trial where the evidence is competent, relevant, material and necessary. The granting of the motion rests in the sound discretion of the court and it is difficult to abstract a general rule from the decisions MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 191 which will apply to all cases. The cases however in which such a disclosure will be granted may be grouped into three classes. First, where the books, papers and docu- ments are the foundation of the action as, for instance, a written contract which a party desires but of which he has no copy. Second, where the appUcant has a special interest in the books, papers and documents such as that of a partner or that of one occupying a confidential re- lation, and third, where the books, papers and documents contain evidence which the party desires to enable him to prepare his pleading or to prepare for trial but in which he has no special interest. In the first two groups a dis- closure and inspection is usually granted as a matter of course, subject, however, to the rule that the necessity therefor must appear, while in the third group the party is required to make out a clear case that the evidence which he desires to examine is competent, relevant, ma- terial and necessary to enable him to frame his complaint or to prepare for trial" (Murphy v. Keen,an, 101 Misc. 443). Discovery is a proceeding entirely distinct from ex- amination before trial. The two cannot be united but must be pursued separately (Bloodgood v. Slayback, 62 App. Div. 315). It has been held that an iaspection of all the party's general books wiU not be ordered to dis- cover facts capable of being ascertained by means of an examination before trial. It seems that the proper prac- tice here is to secure such examination, ascertain there- from what books or documents should be inspected and then proceed to obtain an order for their inspection (Brewster v. F. G. Brewster Co., 127 App. Div. 729). The procedure differs somewhat from that pursued in the cases heretofore considered. A peremptory order is not immediately made. There must first be obtained an order directing the party against whom discovery or in- 192 CODE PKACTinE IN NEW YORK spection is sought to allow it or show cause why it should not be had (§ 805). This order may be vacated upon proof that it ought not to have been granted or that it has been complied with or that the party against whom it is issued has not possession of the book or document (§ 806). If, however, on the return day, the application is granted, the order then made directs the method to be pursued, i. e., by requiring the delivery of sworn copies, or an inspection with copy or production and deposit with the clerk (Rule XVI). A referee may be appouited (§ 807). Both the order to show cause (§ 805) and the peremptory order (Rule XVI), may contain a stay of proceedings. Disobedience may be punished as con- tempt of court or the complaint of the recalcitrant party may be dismissed, or his pleading or cause of action or defense stricken out or barred, or the book or document may be excluded from being given in evidence (§ 808). (VI) Depositions for Use on a Motion. Where a party intends to make or oppose a motion and it is necessary for him to have the affidavit or deposition of a person not a party for use thereon, he may obtain an order for the latter's examination. One day's notice of the application must be given to the attorney for an opposing party who has the privilege of cross-examining the witness (§885). By Rule XIV (subd. 3) discovery may also be had of books, docu- ments, records, articles or property for such a purpose. (B) . Depositions Taken Without and to be Used Within the State. (I) Classes. The Code provides the following methods of taking the testimony of a witness who .is with- out the state and who cannot be induced to appear volun- tarily at the trial. (1) On written interrogatories (§ 887). (2) On oral interrogatories (§ 893). (3) Partly on written and partly on oral interrogatories (§ 893). MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 193 (4) Open commissions (§ 894). (5) Order directing that despositions be taken (§ 894). (6) Letters rogatory (§ 913). Commissions are usually taken on written interrogato- ries and conunonly the parties stipulate for their issuance (§ 908). Where consent is refused, an application is made on notice, the appUcant setting forth in his affidavit facts showing materiality and necessity (§§ 887-889). Such application is usually granted though not invariably. For instance, a commission will not be directed for the pur- pose of supporting an answer bad on its face (Potter v. Morning Journal Assn., 49 App. Div. 242) or where there has been imdue delay prejudicial to the rights of the ad- verse party or warranting an inference of bad faith (Wilcox V. Stern, 89 App. Div. 14; Valentine v. Rose, 45 Misc. 342). After the order is entered, the next step is the preparation of interrogatories. If the attorneys cannot agree, the apph- cant serves his proposed interrogatories within ten days after the entry of the order and within ten days there- after, proposed cross interrogatories are served upon him. Either party may then serve a notice of settlement (Rule XX, § 89 1) . The court then settles and annexes them to the commission. It is provided by § 892 that "either party must be allowed to insert therein any question pertinent to the issue which he proposes " and since it cannot be fore- seen what evidence the exigencies of the trial may render proper and either party at the trial has the right to object to any question or answer as if the witness were testifying or- ally (§911), the court's power to exclude questions should be sparingly exercised. But if questions clearly imperti- nent, incompetent or immaterial are proposed, they should be disallowed (Uline v. N. Y. C. & H. R. R. Co., 79 N. Y. 175; Irving v. Royal Exchange Assurance, No 2, 122 App. Div. 56). The settlement of the interrogatories is in no sense a decision that they are competent or proper. The 194 CODE PRACTICE IN NEW YOBK allowance is required only for the purpose of authenticat- ing them as the ones which the commissioner is authorized to propound to the witness (Wanamaker v. Megraw, 168 N.Y. 125). With respect to the other forms of depositions, it may be said generally that the difference between the first three classes and the open commission is that in the latter, the witnesses are not named; i. e., the commission is drawn generally to examime any witness who may be produced (§ 897) . An order that depositions be taken merely con- tains a provision to that effect and directions as to time, method of return and notice (§ 898) . The courts do not favor commissons on oral interrogato- ries and in practice not infrequently require the appUcant to pay the expenses of the opposing attorney who attends upon the examination. An open commission is still more difficult to obtain. It has been said that "it should never be granted except under peculiar circumstances and cer- tainly not upon the motion of the plaintiff without the strongest and most convincing reasons, as the granting of a motion upon behalf of the plaintiff would simply be transferring the trial of the cause to a Jurisdiction different from that in which he has seen fit to place the venue" (Einstein v. General Electric Co., 9 App. Div. 570, 573; Stewart v. Russell, 66 App. Div. 542). In fact, commis- sions to examine wholly or partly upon oral questions, open commissions and commissions issued pursuant to order that depositions be taken, are prohibited where the adverse party is an infant or the committee of an incompe- tent. Nor can the applicant be examined in his own behalf except on written interrogatories unless by consent of parties (§ 895). Letters rogatory (§913) are in form a commimication by the "People of the State of New York to any judge or tribunal having jin-isdiction of civU actions " in the coun- MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 195 try named. They recite, in substance, that an action is pending and that it has been suggested that there are wit- nesses residing within the court's jurisdiction, without whose testimony justice cannot be completely done be- tween the parties; then there is a request that the court summon the witnesses before it or some competent person and make them answer the interrogatories. In conclusion an offer is made " to do the same for you in a similar case when required." Letters rogatory are issued in the court's discretion upon proof that there is good reason to beUeve 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. The interrogatories must be writing (§ 913) . This form of taking testimony i& derived from the civil law and the method of execution is governed by the practice of the foreign court (see Union Square Bank v. Reichmann, 9 App. Div. 596), though the competency and materiality of the evidence will be decided by the law of this state (Matter of Smith, 79 Misc. 77) . v (II) Procedure. The Code prescribes how foreign depo- sitions are to be taken except in the case of letters rogatory. Generally, it may be said that the person to whom a com- mission is directed, or before whom a deposition is taken, after administering an oath, must reduce the examination to writing and cause it to be read to or by the witness and subscribed. If an exhibit is produced and proved, it or a copy must be annexed to the deposition and identified in writing thereupon. He must subscribe his name to each half sheet and must enclose the papers under his seal and address the packet to the clerk of the court unless otherwise directed (§ 901). He must also annex a certificate, a form for which is given in § 902. A deposition may be suppressed when it appears that it has been improperly or irregularly taken or returned; or 196 CODE PRACTICE IN NEW YORK 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 (§ 910) . For instance, it has been held that a deUberate and wilful refusal on the part of a witness fairly and fully to answer is ground for suppression (Gold- mark V. Metropolitan Opera House Co., 22 N. Y. Supp. 136) . But where the refusal to answer has been due to no act or objection of the party calling the witness, the whole de- position should not be suppressed unless it can be clearly seen that the questions to which answers were refused were material (Calhoun v. Commonwealth Trust Co., 124 App. Div. 633) . It is also improper to furnish the witness in ad- vance with a copy of the interrogatories and cross-inter- rogatories so that he may deliberate and post himself upon his answers, since upon the examination it is expected that he will be guided by his memory alone. Such a course de- troys the value of his cross-examination (Graham v. Carle- ton, 9 N. Y. Supp. 392). A motion to suppress should be made promptly upon discovering the defect since laches may result in its denial (Hartwig v. American Malting Co., 74 App. Div. 140). If the commission is suppressed be- cause of the "unfair or overreaching conduct " of the party securing it, a motion for its reissuance or for a new commis- sion will be denied (Crossett v. Carleton, 49 App. Div. 367). As already stated, a deposition may be read in evidence by either party at the trial, with the same effect 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 or an- swer may be made as if the witness were then personally examined (§911). (C) Depositions for Use Without the State. New York is prepared to extend to other states and countries the cour- MISCELLANEOUS PROCEEDINGS PRIOR TO TPIAL 197^ tesies which it asks from fchem. Hence a party to an action pending in a foreign tribunal who has instituted proceed- ings therein to take testimony within this state may secure a subpoena directing the witness to appear before a commis- sioner or officer designated to take the testimony. This subpoena is issued on the presentation of a verified petition (§§ 914, 915) . The commissioner or officer takes down the testimony in writing, annexes copies of books and papers and certifies and transmits to the court in which the action is pending as the practice of the latter requires (§ 919). 12. Preferences. Certain actions are given a preference over others upon the calendar. It is impossible to enumerate them in detail, and reference need only be made to §§ 789-793 of the Code and to Gen. Rule XXXVI. Each court may likewise provide by rule for preferences on its general calendar or for placing the case on a calendar of preferred causes (cf. Trial Term Rules III and VI and Special Term Rules XI and XII of New York County; Rule III, Special and Trial Terms, Bronx County; and Rules II and III of the City Court of New York). An examination of these sections and rules will disclose that an attempt has been made to give the advantage of an early trial to cases where delay would cause the greatest damage. Whenever a preference is sought, the local rules should be consulted, as details of procedure differ. Section 793 provides that where the right to a prefer- ence depends upon facts which do not appear in the pleadings or other papers, an order must be procured on notice and a copy served with or before the notice of trial or argument. Generally in other cases, a claim for preference may be inserted in the note of issue and it is then the clerk's duty to place the case in its proper place at the head of the calendar. This practice, however, 198 CODE PRACTICE IN NEW YORK does not obtain in the counties of New York, Bronx, Eings, Queens and Erie and in the seventh judicial district. There the party desiring a preference m^st serve upon his opponent with his notice of trial, a notice that an appUcation will be made for leave to move the case as a preferred cause and if the right to a preference depends upon facts not appearing in the pleadings or other papers, this notice must be accompanied by an affidavit, showing such facts (§ 793). In the Supreme Court, New York Coimty, this motion should be noticed for Trial Term, Part II (Trial Term Rule III) or Special Term, Part III (Special Term Rule XII). In that county and Ln the counties of Bronx, Kings, Queens and Erie and in the seventh judicial district, the granting of the appUcation under § 791 to give a preference over other causes noticed for trial at prior terms is within the court 's discretion, notwithstanding the mandatory language of § 793 which has been declared to be unconstitutional (Riglander v. Star Co., 98 App. Div. 101; affmd. 181 N. Y. 531). But a preference will be given to such cases over others noticed for trial for the same term (Morse v. Press Pub. Co., 71 App. Div. 351; Eising v. Young, 38 Misc. 12). In other words, in New York County, if a cause entitled to a preference under § 791 is noticed for the January Term, it will only be preferred to the other causes noticed for January unless the judge decides that it should be preferred over the other causes on the gen- eral calendar, in which event, he sets it for trial on a day certain. But this is rarely done. "What has been said, however, does not apply to actions mentioned in subds. 1 and 2 of § 791, e. g., those brought by or against the state or to which the city of New York is a party; for there the attorney representing the state or city is given the right to move the cause for the particular day in the term for which it has been noticed (Sheerin v. City of New MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 199 York, 74 App. Div. 308). A like provision is made with regard to certain appeals (§ 791, subds. 3, 3a, and 4; cf. subd. 12). 13. Procuring Attendance of Witnesses and Production of Documents. The attendance of witnesses is procured by means of a subpoena the form for which is as follows SUBPCENA The People of the State of New York to Mortimer May, Nicholas Noyes and Oscar Osborne, Greeting: We Command You, that all and singular business and excuses beinK laid aside, you and each of you appear and attend before one of tho Justices of the Supreme Court, at a Trial Term, Part XIV thereof to be held in and for the County of New York at the Court House in the Borough of Manhattan in the City of New York on the day of ,19 , at ten o'clock in the forenoon to testify and give evidence in a certain action now pending in the Supreme Court then and there to be tried between Andrew Atkins, plaintiff, and Benjamin Bristow, defendant, on the part of the plaintiff and for a failure to attend you will be deemed guilty of a contempt of Court and liable to pay all loss and damages sustained thereby to the party aggrieved and forfeit fifty dollars in addition thereto. Witness: Honorable Edward Evans, one of the justices of our said Supreme Court at the Court House in the Borough of Manhattan, New York City, the day of in the year one thousand and John Jones, Clerk. Charles Carter, Attorney for Plaintiff. (Address.) Generally a subpoena is signed only by the attorney and tested by him in the name of a judge as above. He also inserts the name of the clerk (§§ 23-24). But some- times it must be signed by the judge or officer before 200 CODE PRACTICE IN NEW YORK whom the party is required to appear (§ 854), as in supplementary proceedings (Lowther v. Lowther, 115 App. Div. 306), and in case of doubt it is safest to follow this course. A subpoena is served by exhibiting the original and by delivering either a copy or a ticket containing its substance (§ 852). This subpoena ticket as will be noted from the following form is a short abstract of the subpoena itself and is not tested in the name of the judge. It is signed by the attorney. SUBP(ENA TICKET By Virtue of a Writ of Subpoena, to you directed and herewith shown, You Are Commanded That all and singular business and excuses being laid aside you be and appear in your proper person before the Justice of the Supreme Court presiding at Trial ^Term, Part XIV thereof, in the County Court House in the Borough of Manhattan in the City of New York on the day of , 19 , at ten o'clock in the forenoon to testify all and singular what you may know in a certain action now pending between Andrew Atkins, plaintiff, and Benjamin Bristow, defendant, on the part of the plaintiff. And for a failure to attend you will be deemed guilty of a contempt of Court and hable to pay all loss and damages sustained thereby to the party aggrieved, and forfeit Fifty Dollars in addition thereto. Dated the day of , 19 . By the Court, To Mortimer May. Chakles Cabteh, Plaintiff's Attorney. (Address.) The fee for one day's attendance and his mileage must also be paid or tendered to the witness (§ 852). The fee is fifty cents per day and the mileage is 8 cents per mile from his residence to the place of attendance, provided the distance is greater than three miles. If the distance is less, he is not entitled to mileage (§ 3318). If his at- tendance is required for more than one day, additional MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 201 fees must be paid or tendered at the end of each day's attendance at court. But mileage is only allowed once. If it is desired to compel the production of a document, book, or paper, a subpoena duces tecum must be served or an order obtained requiring production. The follow- ing is the form : SUBPCENA DUCES TECUM The People of the State of New York to Mortimer May, Greet- ing: We' Command You, that all business and excuses being laid aside, you appear and attend before one of the Justices of the Supreme Court at a Trial Term, Part XIV thereof, to be held in and for the County of New York at the Court House, in the Borough of Manhattan, in the City of New York on the day of , 19 , at 10 o'clock in the forenoon to testify and give evidence in a certain action now pending undetermined in the said court between Andrew Atkins, plaintiff, and Benjamin Bristow, defendant, on the part of the plaintiff and that you bring with you and produce at the time and place afore- said a certain (describe fully book, paper or document to be produced) now in your custody, and all other deeds, evidences and writings which you have in your custody or power concerning the premises. And for a failure to attend you will be deemed guilty of a contempt of Court and liable to pay all loss and damages sustained thereby to the party aggrieved and forfeit Fifty Dollars in addition thereto. Witness Honorable Edward Evans, one of the Justices of our said Supreme Court at the Court House in the Borough of Manhattan, New York City, the day of , nineteen hundred and John Jones, Ckrk. Charles Carter, Attorney for Plaintiff. (Address.) If the subpoena requires the production of a book of account, it must be served five days before the return 202 CODE PRACTICE IN NEW YORK day. If less time will elapse, production must be com- pelled by an order. The witness may obtain upon such notice as the judgej referee or other officer prescribes, an order reUeving him wholly or partly from the obhgations of the subpoena "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 (§ 867) . This would cover cases where the records re- quired are very voluminous and their production would cause substantial injury which may be obviated by per- mitting their examination out of court (§ 867) . If a sub- poena duces tecum or an order is directed to a corporation or pubUc ofl&cer, it or he will be deemed to have compUed if the book or paper is produced by a subordinate officer or employe 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 is required, a subpoena without a duces tecum clause must also be served upon him (§ 869) . Pubhc records whereof a transcript may be read in evidence are not to be removed from the office where they are kept except temporarily, by virtue of a subpoena duces tecum, to a term or sitting held in the city or town where the office is situated. When required at any other place or where it is a record kept by the Registers of New York and Kings Counties, it may not be removed except by order of the supreme or county court specifying that the pro- duction of the original instead of a transcript is necessary (§866). _ • A person who wilfully refuses to obey a subpoena or order may be punished for contempt and is liable for the damages sustained by the party aggrieved aiid $50 in addition. If he is a party to the action in which he was subpoenaed, the court may as an additional pimishment strike out his pleading (§ 853). MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 203 14. Requests to Admit Genuineness — Notices to Pro- duce. Section 735 provides that an attorney may at any time before the trial exhibit to his opponent a paper, material to the action, and request a written admission of its genu- ineness. If the admission is not given within four days thereafter, the refusing party noay be charged with the expense of estabUshing its genuineness unless there was good reason for refusal. This course, however, is not often adopted in practice. If counsel desires to offer at the trial secondary evidence of the contents of a writing the original of which is in the possession or under the control of the opposite party, it win generally be necessary to serve a notice to produce. The Code makes no provision for this and hence common law rules will govern. For instance, "where the pleadings give notice to the opposite party to be prepared to pro- duce a particular instrument, if necessary to contradict the evidence of the other party, no further notice need be given before secondary evidence may be received " (Lawson v. Bachman, 81 N. Y. 616; Howell v. Huyck, 2 Abb. Ct. App. Dec. 423), e. g., where an architect brings suit against one for whom he drew certain plans and defendant has the plans in his possession (Hooker V. Eagle Bank of Rochester, 30 N. Y. 83). No definite time is prescribed. The opposing party "should have reasonable notice and what is reasonable must depend upon circiimstances'* (Utica Ins. Co. v. Cad- well, 3 Wend. 297, 300; Hammond v. Hopping, 13 Wend. 505). If he has the paper in court it is sufficient if given at the trial (Anonymous, Anthon's N. P. 273; Whelan v. Gorton, 15 Misc. 625). The following is the form: Please take notice that you are hereby required to produce upon the trial of this action a certain letter (or other document. An exact and detailed description should be given.) , and in case of your failure 204 CODE PRACTICE IN NEW YORK to produce the same, secondary evidence of the contents thereof will be offered. Dated the day of , 19 . Yours, &c. Daniel Dahling, Attorney for Defendant. To Charles Carter, Esq., (Address.) Attorney for Plaintiff, (Address.) 16. Evidence. The Code contains only a few general provisions con- cerning evidence which may be noted here since they should be consulted when preparing for trial. (A) Competency of Witnesses; Evidence in Particular Cases. No witness is to be excluded by reason of interest (§ 828) . But there are exceptions. Thus, testimony of a party or interested person or of one from through or under whom a party or interested person derives his in- terest or title, is inadmissible if it is in behaK of the wit- ness or his successor in iaterest against an executor, administrator or survivor of a deceased person, or the committee of a lunatic or a person deriving title or ia- terest, from through or under the deceased person or luna- tic and concerns a personal transaction or conajnunication between the witnesses and the deceased person or lunatic ; except where the executor, administrator, survivor, com- mittee or person 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 trans- ation or communication (§ 829) . It is doubtful whether any section of the Code has given rise to greater contro- versy and it is manifestly impossible to discuss it within the compass of this work. The test of iaterest, where the witness is not a party, is that he "will either gain or lose by the direct legal operation of the judgment, or that the record will be legal evidence for or against him MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 205 in some other action" (Connelly v. O'Connor, 117 N. Y. 91, 93; Wallace v. Straus, 113 N. Y. 238). Concerning the phrase "personal transaction or communication" it has been said: "The words of exclusion are as compre- hensive as language can express: Transactions and com- munications embrace every variety of affairs which can form the subject of negotiation, interviews, or actions between two persons and include every method by which one person can derive impressions or information from the conduct, condition or language of another" (Holcomb V. Holcomb, 95 N. Y. 316, 325, where testimony as to the conduct and actions of the deceased tending to show his enfeebled and dependent condition was excluded). But the testimony of a dead, insane, non-resident or in- competent witness, or of one who has departed by reason of military or naval service, with accompanying exhibits and documents may be given or read in evidence at a new trial or continuation of the same trial of the same subject-matter between the same parties or their repre- sentatives subject to other legal objections (§ 830). Generally, the husband or wife of a party or person interested is not excluded or excused from being a wit- ness (§ 828). But neither is competent to testify against the other upon a trial or hearing when the action or pro- ceeding is founded upon an allegation of adultery except to prove the marriage or disprove the adultery or dis- prove the defenses of connivance, condonation, limita- tions and recrimination (§831). Thus it would seem that a wife cannot testify concerning the husband's property or income for the piirpose of fixing alimony and maintenance (Valentine v. Valentine, 87 App. Div. 156), though her affidavit is usually submitted and re- ceived on appHcations made pendente Ute (and see Rule LXXIII, infra, p. 387, concerning proof where defendant makes default). Nor shall husband or wife be compelled 206 CODE PRACTICE IN NEW YORK or without consent of the other if Uving, allowed to dis- close a confidential communication. In an action for criminal conversation, plaintiff's wife is not a competent witness for plaintiff though she may testify for defendant except as to confidential communications with her hus- band (§831). Conviction of crime will not exclude a witness but it may be proved for the purpose of affecting the weight of his testimony either by the record or by his cross-ex- amination on which he must answer any relevant iaquiry, the party cross examining him not being concluded by his answer (§ 832) . Though a witness is privileged to refrain from giving an answer which will tend to accuse himself of a crime or expose him to a penalty or forfeiture, he is not excused merely because his answer may establish liability to a civil suit (§ 837). Clergyman are not allowed to disclose confessions made in the course of disciphne enjoined by the rules or prac- tice of the reUgious body to which they belong (§ 833). A Uke privilege extends to physicians, nm-ses and to at- torneys with their clerks, stenographers and other em- ployes (§§834, 835). The privilege may, however, be waived by the person confessing, the patient or the cUent or in certain instances, by the personal representatives &c. (§ 836). A seal upon an executory instrument is only pre- sumptive evidence of a sufiicient consideration which may be rebutted (§ 840) . The absence for seven years of one possessed of per- sonal property or one upon whose life an estate in real property depends raises a presumption of death, but such presumption may be rebutted (§ 841). Contributory negligence is a defense to be pleaded and proven by defendant in an action for causing death (§ 841b). Recitals as to heirship in instruments more than 30 MISCELLANEOTJS PKOCEEDINGS PRIOK TO TRIAL 207 years "old (i. e., "ancient documents") is presumptive evidence thereof if such instrument be duly acknowledged or witnessed and proved and be recorded (§ 841c). (B) Documentary Evidence. (I) As a Substitute for Oral Testmony. The Code not only makes certain certificates, affidavits, &c., admissible in evidence but also gives to them the effect of presmnptive proof of the facts therein stated (cf. Flandrow v. Hammond, 148 N. Y. 129). Among them are the following: A certificate that a pubhc officer has searched for and been unable to find a document in his office (§ 921) ; a certificate or affidavit touching an official act performed or a fact ascertained (§ 922) ; an affidavit of pubhcation made by a printer, pubUsher, &c. (§ 926) ; an affidavit of service, posting, or affixing a notice made by one dead or insane at time of trial, or whose personal attend- ance cannot be compelled with due dihgence (§ 927) ; a marriage certificate (§ 928) ; a recital or entry in a book of a foreign corporation (§§ 929-931); maps, surveys and official records on file in certain pubhc offices in New York City and County for twenty years (§ 955) ; and as already stated, recitals of heirship in ancient documents (§ 841c) . A notary's certificate of presentment, protest or serv- ice of notice is presumptive evidence unless the oppos- ing party has served with his pleading or within ten days after joinder of issue of fact, an original affidavit that he has not received notice of non-acceptance or non-payment. A verified answer is not sufficient (§923). By serving such affidavit, the defendant compels plaintiff to prove his case by common law evidence (Century Bank v. Breitbart, 89 Misc. 308; Dupont de Nemour Powder Co. V. Rooney, 63 Misc. 344; cf. McLean v. Ryan, 36 App. Div. 281; affmd. 165 N. Y. 620). It should be noted that an original affidavit, not a copy, must be served. In case of the death, insanity, absence or removal of a notary, his original protest under his hand and seal, their gen- 208 CODE PRACTICE IN NEW YORK uineness being first duly proved, is presumptive evidence of demand and a note or memorandum personally made or signed at the foot of a protest or in his ofl&cial register is presumptive evidence of the sending or delivery of notice (§ 924, Oppenheimer v. Roberts, 175 App. Div, 424) . Proof of presentment, protest or notice of commer- cial paper payable without the state may be made in any manner authorized by the law of the place of payment (§925). (II) Proof of Document Executed or Remaining Within the State. A statute or joint legislative resolution may be read from a newspaper designated to pubUsh (until six months after the session), or from a volume printed under the direction of thr Secretary of State or from an unofficial volume containing his printed certificate that the copy is a correct transcript (§ 932). Of course, if it is a public statute the court will take judicial notice of it (Chase-Hibbard Milhng Co. v. City of Ehnira, 207 N. Y. 460, 465). Certified copies of papers filed or recorded in a public office may be used in lieu of the origiaals (§933,934). A conveyance, acknowledged or proved and certified in a manner entitfing it to be recorded, is evidence with- out further proof and generally, the record or transcript duly certified of a conveyance is evidence with like effect as the original (§ 935) though such acknowledgment, proof or transcript is not conclusive (§936). Any in- strument except a promissory note, bill of exchange, or will may be acknowledged or proved and certified and thereupon is evidence as if it were a conveyance (§ 937) . An ordinance, resolution, &c., of the Common Council or of certain boards of a city or village may be read in evi- dence from a certified copy or from, a volume printed by authority (§ 941). A Code or other volume containing the ordinances or by-laws of the City of New York pubUshed MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 209 by authority of the board of aldermen is prima facie evidence thereof in all courts. All courts in the city shall take judicial notice of such city ordinances (Laws 1917, Ch. 382). (Ill) Proof of Document Remaining in U. S. Court or Public Office or Executed or Remaining Without the State. A printed copy of a statute or other written law of an- other state, territory or coimtry or of a proclamation, edict, decree or ordinance by the executive power, con- tained in a book or publication, purporting or proved to have been pubhshed by the authority thereof, or proved to be commonly admitted as evidence of the existing law in the foreign tribunal, constitutes presumptive evidence thereof (§ 942) . Before offering the volume, counsel should therefore make certain that it contains the usual recital that it is pubhshed by authority. The unwritten or common law of foreign states or countries may be proved by oral evidence or by the books of reports of cases (§ 942). It should be kept in mind that the laws of other states are facts which must be alleged and proved and of which the New York courts cannot take judicial notice either in their language or their interpretation, though in the absence of proof it may be presumed that the com- mon law is the same as the common law of New York (Southworth v. Morgan, 205 N. Y. 293). But there is no presumption that the law of the foreign state is the same as the statutory law of New York (Casola v. Kugel- man, 33 App. Div. 428; affmd. 164 N. Y. 608; First National Bank v. National Broadway Bank, 156 N. Y. 459). Furthermore the presumption is indulged by our courts only in reference to England and the states which have taken the common law from England. The rule, for instance, would not apply to Russia, (Savage v. 'Neil, 44 N. Y. 298), Brazil, (Crashley v. Press PubUshing Co., 179 N, Y. 27), or Mexico (Lucia Mining Co. v. Evans, 210 CODE PRACTICE IN NEW YORK 146 App. Div. 416). Nor will the New York Courts take judicial notice of the statutes of another state (Moore V. Coler, 106 App. Div. 331). Certified copies of the records of United States Courts (§ 943) and departments (§ 944), are admissible in evi- dence; also conveyances of land without the state where properly acknowledged or authenticated (§ 946) and exemplified records thereof (§ 947), and certified copies of foreign records (§§ 952-954, 956). ^ (IV) Miscellaneous provisions. The Code provides for a form of certification of a record or other paper within the state, i. e., the officer must state that he has compared the copy with the original and thb,t it is a correct trans- cript therefrom and of the whole of the origiaal (§ 957) attaching his seal thereto (§ 958). No provision, however, is made for the certification of a judgment of another state. This is for the reason that pursuant to the United States Constitution (Article IV, § 1) providing that full faith and credit shall be given in each state to the pubhc acts, records and judicial proceedings of every other state, congress has prescribed a form* (U. S. R. S., §§ 905, 906). Thus * U. S. Rev. St., § 905. "The acts of the legislature of any State or Territory or of any country subject to the jurisdiction of the United States shall be authenticated by having the seals of such State, Terri- tory or country affixed thereto. The records and judicial proceedings of the courts of any State or Territory, or of any such country, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice or presiding magistrate, that the said attestation is in due form. And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken." § 906. "All records and exemplifications of books which may be MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 211 Supreme Court of the State of (Name of State) ss: The State of to all to whom these presents may come, Greeting: Know ye, that we having inspected the records of our Supreme Court, do find there remaining the following SEAL which contains a full and perfect transcript of the papers, proceedings, orders, etc., of the rec- ord and of the whole record of the judgment in the case of Andrew Atkins v. Benjamin Bristow in the words and figures following, to wit: (Here take in copy of judgment) all of which we have by these presents caused to be exemplified and the Seal of our Supreme Court to be hereunto affixed. In Testimony Whereof I, Nicholas Noyes, clerk of said Supreme Court, have hereunto set my hand and afBxed the seal aforesaid at this day of , a. d., nineteen hun- ^'"^^^ ■ Nicholas Notes, Clerk. kept in any public office of any State or Territory or of any country subject to the jurisdiction of the United States, not appertaining to a court, shall be proved or admitted in any Court or office in any other State or Territory or in any such country, by the attestation of the keeper of the said records or books and the seal of his office annexed, if there be a seal, together with a certificate of the presiding justice of the court of the county, parish or district in which such office may be kept, or of the governor or secretary of state, the chancellor or keeper of the great seal of the State or Territory, or country that the said attestation is in due form and by the proper officers. If the said certificate is given by the presiding justice of a court, it shall be further authenticated by the clerk or prothonotary of the said court, who shall certify under his hand and the seal of his office, that the said presiding justice is duly commissioned and qualified; or, if given by such governor, secretary, chancellor or keeper of the great seal, it shall be under the great seal of the State, Territory or country afore- said in which it is made. And the said records and exemplifications, so authenticated, shall have such faith and credit given to them in every court and office within the United States as they have by law or usage in the courts or offices of the State, Territory, or country, as aforesaid, from which they are taken." 212 CODE PRACTICE IN NEW YORK I, Edward Evans, Chief Justice of the Supreme Court of the State of in conformity to the laws of the United States of America in such case made and provided, do certify that on the day of , 19 , instant, Nicholas Noyes, Esquire, was and is the clerk of said Court; that the attestation of said clerk to the fore- going record is the attestation of said clerk and the signature Nicholas Noyes his genuine signature, and that the seal thereto affixed is the seal of said court and that said record and attestation are in due form of law. Witness my hand, at this day of , A. D., nineteen hundred and Edwahd Evans, C. J. I, Nicholas Noyes, Clerk as aforesaid, do hereby certify that Hon. Edward Evans, whose name is signed to the foregoing Certificate of Attestation, was, at the time of signing the same. Chief Justice of said Supreme Court, duly commissioned and sworn, and that full faith and credit are due to all his acts as such, as well in aU courts as elsewhere, and that the signature to said certificate is in the proper handwriting of said Chief Justice. In Testimony Whebeof I have hereto set my hand and the seal of said court at this day of , a. d., nineteen hundred Nicholas Notes. Whenever it becomes necessary to determine the age of a child, such child may be produced and exhibited and an examination may also be directed by one or more physicians (§ 961a). The common law rule required that attested instru- ments be proved by the testimony of the attesting wit- ness or his absence accounted for. But this has been changed so that now, except in cases where such witnesses are necessary (e. g., a will) the instrument may be proved as in other cases (§ 961). If a handwriting is disputed it may be compared with any writing proved to the satisfaction of the court to be the genuine handwriting of the party (§ 961d). MISCELLANEOUS PROCEEDINGS PRIOR TO TRIAL 213 In conclusion, nothing that has been said will prevent the proof of a fact, act, record, proceeding, document or other paper or writing according to the rules of the com- mon law, or by any other competent proof (§ 962). CHAPTER XII TRIALS 1. Mode of Trial. 2. Trial by Jury. 3. Trial by Jury; Procedure. (A) The Marked Pleadings. (B) Selecting the Jury. (C) The Opening Addresses. (D) Dismissal on Opening. (E) Introduction of Evidence. (F) Withdrawing a Juror. (G) Dismissals and Directed Verdicts. (H) Final Addresses. (I) Judge's Charge. (J) The Verdict. (K) Motions for New Trial and for Stay. (L) Entry of Judgment. 4. Trial by the Court. 5. Trial by Referee. 6. Trial by Arbitrators. 7. Submission on Agreed Statement of Facts. 1. Mode of Trial. Issues arise where a fact or question of law is maintained by one party and controverted by the other and are of law and of fact (§ 963). The former arise only upon a de- murrer, the latter upon a denial of a material allegation, which denial, as already stated, may either be expressed in the pleading or may be impUed as where new matter is contained in the reply (§ 964). Where both issues arise in one action, that of law must first be disposed of (§ 966) unless it is otherwise directed by the court (§ 967). De- murrers have already been considered. Issues of fact may be tried in court or before a referee. If in court, the trial may be either with or without a jury. 214 TRIALS 215 2. Trial by Jxiry. The New York Constitution (Art. 1, §2) provides for trial by jury " in all cases in which it has been heretofore used " and the Code (§ 968) enumerates the following: (1) Where the complaint demands judgment for a siun of money only; (2) ejectment; (3) dower; (4) waste; (5) nui- sance; (6) to recover a chattel (replevin). These, how- ever, are not exclusive. For instance, actions to annul cor- porations are triable in this manner (Gen. Cor. Law, §133). Now construing the phrase "in all cases in which it has been heretofore used," it is evident that there was no in- tent to abolish the distinction between the methods of pro- cedure followed in equity and in law. Hence "the mere fact that the complaint asks for a money judgment does not necessarily show that the case is one for trial by jury. Courts of equity give judgment for money only, when that is aU the rehef needed, (Bell v. Merrifield, 109 N. Y. 202; 207; Lynch v. Metropolitan El. Ry. Co., 129 N. Y. 274). On the other hand, there are certain actions, equitable in their nature, where a jury trial may be demanded as a right, such as partition (§ 1544), for annulment of marriage except where founded upon an allegation of physical inca- pacity (§ 1753) and the issue of adultery in actions for di- vorce (§ 1757). Actions for separation are not included (Packard v. Packard, 88 App. Div. 339). Here the pro- cedure is to procure an order directing the issues to be stated for trial and the finding of the jury is conclusive un- less the verdict is set aside or a new trial granted (§ 970) . In other cases, and this is the general rule in equity actions, where a party is not entitled as of right to a trial by jury, the court may in its discretion and either upon or without the application of a party, direct that one or more questions of fact be so tried (§ 971). Here the order takes the place of the feigned issue which was aboUshed by § 823. 216 CODE PRACTICE IN NEW YORK This feigned issue was a means whereby under the old practice, the chancellor might secure the benefit of a jury's finding upon questions of fact. An action would be brought at law wherein a fictitious wager was alleged upon which the plaintiff nominally sought recovery. Defendant would deny that plaintiff had won. The verdict when rendered was not deemed binding upon chancery, being merely ad- visory. The present procedure under § 971 which per- mits issues to be framed, has the same effect and hence the equity court may adopt, modify or reject the findings (Acker v. Leland, 109 N. Y. 5) . In this case as in the fore- going (i. e., where a jury trial is a matter of right in an equity action), if either party desires such a trial he must within twenty days after issue joined, give notice of motion, otherwise he waives (Rule XXXI). The constitutional provision already quoted (Art. 1 , § 2) provides that " a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law " and Code § 1009 mentions various methods, e. g., in writing or by an oral consent in open court, but these are not exclu- sive and the same effect may be given to any evidence, either of conduct or acquiescence by a party which in other cases would require a conclusion that a right" designed for his benefit had been waived, as where defendant noticed the cause for trial at special term before making the de- mand (MackeUar v. Rogers, 109 N. Y. 468). So in actions where legal and equitable relief is sought, and an appli- cation is made to frame issues, plaintiff and defendant occupy different positions. Plaintiff by electing to go into equity has waived his legal right to insist on a jury trial and as to him the order is discretionary with the court. But the defendant may by timely demand, reserve bis right, and the fact that plaintiff has combined with a prayer for equitable relief an alternative claim for a money judgment, cannot deprive defendant of the jury trial as- TRIALS 217 sured to him by the constitution. This is likewise true as to a counterclaim for a money judgment (see § 974), based on a legal cause of action. Furthermore, since plaintiff's application is addressed to the discretion of the court, while defendant's right is absolute, the jury's verdict in the former case will be regarded as advisory and in the latter controlling (Di Menna v. Cooper & Evans Co., 220 N. Y. 391). 3. Procedure at the Trial. (A). Furnishing Marked Pleadings. At the outset, the duty is imposed upon the party who has brought the case to trial, usually the plaintiff, to furnish to the court a copy of the summons and pleadings and of the offer, if any has been made (§ 981). He must "plainly designate on each pleading the part or parts thereof claimed to be admitted or controverted by the succeeding pleadings " (Rule XIX) . This is to permit the court to determine at a glance just what is in issue. Thus the plaintiff opposite each allega- tion in his complaint will mark "admitted " or denied " as the case may be. Some attorneys add a reference to their adversary's pleading, e. g., "admitted by failiu-e to an- swer " pr " denied by paragraph of answer." (B) Selecting the Jury. The proceedings open with the formation of a jury. In certain cases where a fair and impartial trial cannot otherwise be had, or the case is so important or intricate as to require it, the court may direct that a special jury be "struck " (§ 1063), but this is very rarely done (see § 1065 as to procedure). According to the usual practice, the clerk in open com-t draws from the ballot box as many ballots as may be required. The first twelve persons who appear as their names are called, take their places in the jury box. Then the list is handed to counsel who may examine the prospective jurors for the purpose of having their competency determined; if found incompetent. 218 CODE PRACTICE IN NEW YORK an objection or ' ' challenge ' ' is interposed. Relationship to a party is a good ground for disqualification (§ 1166), as is the fact that the juror is an employ^ or stockholder of a party, or in actions for injuries to person or property that he is a stockholder, director, officer, employ^ or in any manner interested, in any iasurance company issuing policies for protection against Uabihty for damages there- from (§ 1180). So prejudice or bias will necessarily exclude, if so great as to prevent the party from acting impartially. The challenge is tried and determined by the court (§ 1180). Each party also has the right to six peremptory challenges iQ a court of record and three in a court not of record, by which is meant that he may object without assigning any reason whatever (§ 1 176) . If there has been any irregular- ity in drawing the panel, there may be a challenge "to the array." This, however, is very infrequent. (C) The Opening Addresses. The jury having been selected, the next step is to dehver the opening address. The party having the affirmative issue to maintain has the right to open and close. Naturally this is usually the plaintiff, but the defendant may open and close when he admits all the allegations in the complaint necessary to be estabfished to make out a cause of action and sets up an afiirmative defense or counterclaim (Murray v. N. Y. Life Ins. Co., 85 N. Y. 236). It will not be enough that the defendant makes an oral admission at the trial. If he wishes to obtain the right of opening and closing he "must frame his pleading with that view and so as to present no issue upon any allegation of the complaint essential to the plaintiff's alleged cause of action. If the defendant fail to do that, no matter how little proof the remaining issue may require or how easily or in what manner it may be estab- lished by evidence, the right of the plaintiff to open and close the case is not denied to him" (Lake Ontario National Bank v. Judson, 122 N. Y. 278, 284). TRIALS 219 This opening j,ddress is usually brief. Its object is to acquaint the jury with the claim which plaintiff makes and hence it should consist merely of a statement of what he expects to prove. The language should be so clear that every juror wiU comprehend the position which plaintiff takes and have no difficulty in following the evidence understandingly. Argument is out of place in an opening address, except as it may be strictly necessary to this end. Cotinsel shoiild be careful to make his statement conservative, for if he makes Hberal promises and thus raises the jurors' expectations, the reaction will be very dangerous in the event of non-fidfiUment. The party having the affirmative, who we will assume is the plaintiff, having finished, it is now the defendant 's turn. Originally he could wait until plaintiff had developed his entire case and rested. This worked to defendant's advantage in that he might mould his case to meet the situation as it developed during plaintiff's examination of the witnesses. A change was made in 1910 and now each party must open before any evidence is introduced (Rule XXIX). The reason is that the jury before hearing any of the witnesses, may understand just what are the points at issue. (D) Dismissal on Plaintiff's Opening. Before he ad- dresses the jury, defendant may move to dismiss on plain- tiff's opening which is usually not taken down by the stenographer, although this will be done if requested. It shoiild be taken down if the motion is to be made since a record must be preserved. Under § 499, defendant may, at any time, raise the objection that the court has no jurisdiction or that the complaint does not state facts sufficient to constitute a cause of action, these being the two grounds which are not waived by a failure to demur or answer. It has been said that: "The practice of dis- missing an action on the opening of counsel has met 220 CODE PRACTICE IN NEW YORK frequently with the disapproval of the^ courts, and has been described as one 'not to be encouraged.' There are, of course, circumstances as a rule very infrequent, which justify such a practice in a given case, but as stated by the Court of Appeals in Hoffman House v. Foote, (172 N. Y. 350), in order to justify a dismissal of the complaint upon the opening of counsel it should be 'dem- onstrated either (1) that the complaint does not consti- tute a cause of action, or (2) that a cause of action well stated is conclusively defeated by something interposed by way of defense and clearly admitted as a fact, or (3) that the leaned counsel for the plaintiff in his opening address, by some admission or statement of facts so completely ruined his case that the court was justified in granting a non-suit.' As was pointed out in Darton V. Interborough Rapid Transit Co. (125 App. Div. 836) it is not enough to sustain a judgment dismissing a complaint upon the opening of coimsel that it should have appeared to the trial court that it was very improbable that the plaintiff could by proofs make out a cause of action nor should such a judgment be affirmed in the appellate court, because it appears likewise very improbable that had the plaintiff been allowed to go to the jury, he could have made out a cause of action; for when the complaint states a cause of action, the plaintiff is entitled to an opportunity to present to the jury such evidence as he may be able to command within the issues raised by the plead- ings" (Backman v. Rodgers, 153 App. Div. 299, 301). (E) The Introduction of Ebidence. Then the plaintiff proceeds to put in his evidence. He calls his witnesses to the stand and each is duly sworn. The witness lays his hand on the gospels and expresses his assent to the oath . It is not required that he indulge in the unsanitary practice of kissing them (§845). If he desires, he may even omit laying his hand upon them, being required TRIALS 221 merely to swear in the "presence of the ever-Hving God" (§ 846). If he has conscientious scruples against taking an oath or swearing, he may merely "declare and affirm " (§ 847) . If any pecuhar mode of swearing is in his opinion more solemn and obhgatory, that method may be adopted (§§848, 849). The court may examine an Infant or a person apparently of weak intellect to ascertain his ca- pacity and the extent of his knowledge and may inquire of a prospective witness what pecuhar ceremonies in swearing he deems most obhgatory (§ 850) . So of course, the court may examine in order that it may decide other questions essential to competency, this being termed examination on the "voir dire" ("voir" a corruption of "vroi," modern French "vrai"), the latter meaning Ut- erally "to state truly" or "tell the truth." Plaintiff should keep in mind that he must present his entire case. "No rule for the conduct of trials is more familiar than that the party holding the affirmative is bound to introduce all the evidence on his side before he closes. He must exhaust all his testimony in support of the issue on his side before the testimony on the opposite side has been heard. He can afterwards introduce evi- dence in rebuttal only. Rebutting evidence in such cases means not merely evidence which contradicts the wit- nesses on the opposite side and corroborates those of the party who began, but evidence in denial of some affirma- tive fact which the answering party has endeavored to prove. . . . These rules naay in special cases be de- parted from in the discretion of the trial judge, but a refusal to depart from them is no ground of exception " (Marshall v. Davies, 78 N. Y. 414, 420). If a question is asked to which defendant's counsel wishes to object, he must make such objection promptly and before the witness has answered. He cannot wait and determine whether the answer will be unfavorable 222 CODE PRACTICE IN NEW YORK to him and if so move to strike out (Matter of Morgan, 104 N. Y. 74), though he will not be concluded by an answer made so promptly that there was no time to object to the form of the question. But when the question is proper and the answer is improper either in whole or in part, the practice is to move to strike out the entire answer or that portion which is improper (Platner v. Platner, 78 N. Y. 90, 102; Holmes v. Roper, 141 N. Y. 64). Counsel should state specifically the ground of his objection, for it is settled that "where the objection to evidence is general and it is overruled and the evidence is received, the ruling will not be held erroneous unless there be some grounds which could not have been ob- viated had they been specified or unless the evidence in its essential nature be incompetent. An objection to a question which fails to assign any ground for the exclusion of the testimony called for, is not ground for a reversal of the judgment unless the question is wholly improper or the testimony it calls for is wholly inadmissible. The reason for the rule is that if the ground had been stated, the form of the question might have been changed or the counsel might have conceded the incompetency of the evidence and have withdrawn the question" (Turner v. City of Newburgh, 109 N. Y. 301, 308; Stouter v. Man- hattan Ry. Co., 127 N. Y. 661). Furthermore, where the objection is based upon a specific ground, every ground not specified which is capable of being obviated by evi- dence is waived (Marston v. Gould, 69 N. Y. 220). So an objection to the admission of a copy on the ground that it was "incompetent" and "immaterial" does not raise the point that the non-production of the original document had not been accounted for (Atkins v. Elwell, 45 N. Y. 753). Nor does such an objection call to the court's attention the point that the authority of an TRIALS 223 agent to sign had not first been established (Porter v. Valentine, 18 Misc. 213). The practice of shooting into the case the blunderbuss objections "incompetent, irrelevant and immaterial" on the chance that one of them may land, is not to be com- mended. Over-zealous counsel also occasionally over- look the fact that too many objections may have a very bad effect on the jury, since the latter may reason that evidence damaging to the objector is being hidden from them. The party against whom the court rules in admitting or rejecting evidence must take an exception to the ruling if he wishes to bring up this point later on (§§ 992, 995). This he does merely by saying "I except" or by asking that an exception be noted. The rule is eminently fair. "An exception taken during the progress of the trial is a protest against the ruling of the court upon a question of law. It is designed as a warning for the protection of the court so that it may reconsider its action, and for the protection of the opposing counsel, so that he may consent to a reversal of the ruUng" (Sterret v. Third Natl. Bank, 122 N. Y. 659, 662). Plaintiff's counsel may from time to time offer docu- mentary evidence and have each marked by the stenog- rapher as an exhibit. This he may do immediately after the necessary foundation has been laid and the in- strument properly identified or at that time he may merely have the document marked for identification and formally offer it in evidence later on before he closes his case. The trial judge may if he wish, ask a witness proper questions necessary to eUcit the truth, where the facts testified to are material, or the condition of the evidence is obscure or the truth is not fully revealed (Riegler v. Tribime Assn., 41 App. Div. 490). To sustain an ob- jection on this ground "would be to hold that a judge, 224 CODE PBACTICE IN NEW YORK sitting as a trier of facts, had no duty to try to find out what the facts are" (Brodsky v. Hibel, 94 Misc. 312, 315). "But the exaniination of witnesses is a more appropriate function of counsel, and as it is no part of the duty of the judge to enter upon and conduct an extended examination of a witness, and thereby put himself in the place of the counsel who should perform that duty, the inference which the jury necessarily draw from seeing the coiu^ in that position must be imfavorable to the person against whom the examination proceeds, and it is quite likely to result in injustice instead of bringing about a fair and impartial consideration of the case by the jury, which is the thing to be sought" (Bolte v. Third Ave. R. Co., 38 App. Div. 234, 239). Such instances however must be unusual to warrant reversal. In the case cited, the trial judge had taken the examination of the witness out of the hands of counsel and many of his questions were manifestly improper (see also People v. Shenk, 181 App. Div. 753, where the trial judge asked over 1200 questions). As soon as plaintiff has finished with each witness, de- fendant's counsel has the privilege of cross-examining. There are two hues which he may follow: first, to cross- examine as to facts in issue or as to relevant facts, and here the cross-examination may be pursued as matter of right; second, to ascertain the accuracy or credibility of the witness, and here the method and duration are sub- ject to the discretion of the trial judge, and unless abused its exercise is not the subject of review (Langley v. Wads- worth, 99 N. Y. 61). This is probably the most difficult part of the trial. The tendency of the inexperienced at- torney is to go too far and to cross-exanaine on all points disputed as well as imdisputed. But it ought to be kept in mind that witnesses should not be cross-exanained un- less there is some definite object to be gained. Though counsel should be firm in insisting upon proper replies TRIALS 225 to his questions, he should studiously avoid any seeming discourtesy. Cross-examination, it has been said, does not mean to examine crossly, and a hectoring or bullying demeanor will inevitably work against the attorney adopt- ing it. The jury realizing that the witness is at a disad- vantage will be apt to take his part. Particularly is this true in the case of a woman. Here even the most remote suggestion of unfairness should be avoided. By Rule XXIX, appUcable both to direct and cross-examination, counsel may not repeat the answer or answers of the witness. The student who desires to become an ex- perienced trial lawyer can read with profit Mr. Francis L. Wellman's work "The Art of Cross-Examination." When the cross-examination has been concluded, plain- tiff's counsel may examine on the re-direct. He is con- fined in general to matters brought out on the cross (see Manufacturers' and Traders' Bank v. Koch, 105 N. Y. 630). The trial judge, however, has wide discretion to permit a violation of this rule and he may also allow a re-cross-examination by defendant. Plaintiff having finished his case he rests, and then defendant's counsel usually moves to dismiss. Here the plaintiff is "entitled to the benefit of every fact that the jury could have found from the evidence given and to every legitimate inference that is warranted by the proofs. This disposition of a cause by the trial court is never warranted unless it appears that the plaintiff is not en- titled to recover, after giving him the benefit of the most favorable view that a jury would be warranted in tak- ing of the evidence " (McNally v. Phoenix Ins. Co., 137 N. Y. 389, 394). Defendant should be careful to point out the specific grounds of his motion (Wilcox Silver Plate Co. V. Green, 72 N. Y. 17). If granted, and this is likewise true of such a motion made at the conclusion of the case, plaintiff usually will not be barred thereby 226 CODE PRACTICE IN NEW YORK from a new action since generally it will not be deemed a decision on the merits (§ 1209; Lildenthal v. German Life Ins. Co., 174 N. Y. 76; Kaplan v. Friedman Const. Co., 148 App. Div. 14). It is otherwise, however, where it appears that defendant, taking the position that plain- tiff's own evidence had sufficiently estabhshed a defense, leaves the^ case to be decided by the trial judge (Oakes Mfg. Co. V. City of New York, 206 N. Y. 221; Keyes v. Smith, 183 N. Y. 376). The motion having been denied and an exception taken, defendant's counsel calls his witnesses to the stand, like the plaintiff, he must produce all his evidence before he closes, since evidence not strictly in rebuttal will not thereafter be received except by permission of the court (Barson v. MuUigan, 77 App. Div. 192). Plaintiff may, of course, cross-examine and defendant examine on the re-direct. When defendant has finished, plaintiff again takes up the case, calling witnesses to rebut the affirmative matter which defendant has endeavored to prove (see Marshall V. Davies, 78 N. Y. 414). Usually the examination of witnesses ends at this point, though the court may permit the defendant to call others to disprove the rebuttal testimony offered by plaintiff, and certainly this should be done when the latter has been allowed to introduce new matter. (F) Withdrawing a Juror. It may develop during the trial that counsel for either side finds himself confronted with a situation when it would be suicidal for him to proceed. For instance, he may be taken by surprise (Pirrung v. Supreme Council, 104 App. Div. 571), or his pleadings may have been found insufficient and he may seek an opportunity to amend (Rawson v. Silo, 105 App. Div. 278; Yellow Pine Co. v. GutwiUig, 20 Misc. 634). He may then ask for leave to withdraw a juror and if the TEIALS 227 application is granted, one of the jurors is told to step out of the box. The result is that the jury then becomes incomplete and hence there is a mistrial. This application is addressed to the discretion of the court and its de- termination will not therefore be reviewed except in the case of abuse (Pirrung v. Supreme Council, supra). If permission is granted, it is almost invariably on terms, viz., payment of costs (see Rawson v. Silo, supra). (G) Motions to Dismiss and Direct a Verdict. Usually the defendant now moves to dismiss the complaint or for the direction of a verdict in his favor. It is essential that he make this motion at the close of the entire case. It is not enough that he merely moved to dismiss at an earlier stage of the proceeding and before he began to offer his testimony, for in legal effect his failure to move when the entire evidence is in, amounts to a consent to the submission of the case to the jury, and a waiver of any exception to the ruKng of the court refusing to dismiss at the close of the plaintiff's evi- dence (Wangner w. Grimm, 169 N. Y. 421; Bopp v. N. Y. El. Vehicle Transp. Co., 177 N. Y. 33). This motion raises the question whether admitting aU the facts pre- sented, and giving to the plaintiff the advantage of every inference that can properly be drawn from them, an issue of fact is presented for the determination of the jm-y. (Kraus v. Birnbaum, 200 N. Y. 130). If such is the case, the court will not grant the motion though it may set aside the verdict when rendered if against the weight of evidence (McDonald v. MetropoUtan St. Ry. Co., 167 N. Y. 66; Fox V. Cammeyer, 93 Misc. 180). Hence where the case rests upon the testimony of interested parties, though un- tradicted, their credibility must be submitted to the jury (WHcox V. American Tel. & Tel. Co., 176 N. Y. 115; Honegger v. Wettstein, 94 N. Y. 252). A fortiori is a question for the jury's determination presented where 228 CODE PRACTICE IN NEW YORK there are facts or circumstances tending to contradict the testimony (Strickland v. Henry, 175 N. Y. 372). Plaintiff may also move for the direction of a verdict and thus at this point one of three situations may arise; (1), Either party moves and the motion is granted; (2), Either party moves and the motion is denied; (3) Both parties move. Where defendant moves to nonsuit (Puatt v. D. H. M. F. Ins. Co., 130 N. Y. 206; Paltey v. Egan, 200 N. Y. 83) or either he or plaintiff requests the direction of a verdict (Trustees of East Hampton v. Kirk, 68 N. Y. 459), i. e., only one party moves; and the motion is granted, the other party sufficiently preserves his rights by excepting. If, how- ever, the motion is denied the court may take the matter into its own hands and' direct a verdict for the other side unless the moving party, after the court has announced its intention so to do, requests the submission of any question to the jury. In the absence of such a request the moving party will be estopped when the court has acted, from raising the point on appeal that there were questions of fact that should have been thus submitted and if there is any evidence to uphold the court's decision it must be sus- tained (Ormes v. Dauchy, 82 N. Y. 443; see Tilden v. Ait- ken, 37 App. Div. 28) . A fortiori where both parties move it amounts to a submission of the whole case to the trial judge and his decision upon the facts has the same effect as that of a jm-y (Sigua Iron Co. v. Brown, 171 N. Y. 488; Adams v. Roscoe Lumber Co., 159 N. Y. 176). That is, where defendant moves for a nonsuit and plaintiff for the direction of a verdict (Kirke LaShelle Co. v. Armstrong, 173 App. Div. 232; Trimble v. N. Y. C. & H. R. R. Co., 162 N. Y. 84), or both plaintiff and defendant for the direction of a verdict (Provost v. McEnroe, 102 N. Y. 650), the de- feated party must likewise request that the issues be submitted to the jury. Otherwise he wiU be deemed to TRIALS 229 have treated the case as presenting questions of law only and consented that they be determined by the' court, thus waiving any objection to that mode of trial. The moving party need not however state the specific ques- tions to be submitted except in cases where the only dis- pute of fact is on some incidental matter not necessary to the decision of the main question (Brown Paint Co. v. Reinhardt, 210 N. Y. 162). The right to withdraw the motion prior to the rendition of a directed verdict is abso- lute and its denial constitutes reversible error (Oppen- heimer v. Roberts, 175 App. Div. 424). The ooiu't after granting a motion for a nonsuit should not direct a new trial since there remains nothing to try (Ruback V. McCleary, Wallin and Grouse, 220 N. Y. 188). (H) Final Addresses to the Jury. Counsel next sum up the case to the jxu-y: as already stated, the party holding the affirmative having the right to close. (I) The Judge's Charge. Then the trial judge delivers his charge. He should carefully refrain from stating his view as to the decision of any disputed fact, though a mere expression of opinion or commentary upon the evidence will not necessarily be ground for an appeal where he gives expUcit instructions that it is the duty of the jury to decide (Hoffman v. N. Y. Cent. & H. R. R. Co., 87 N. Y. 25; Allis V. Leonard, 58 N. Y. 288). But he should use great caution in view of the regard usually paid by the jm-ors to the court's opinion. For instance, it constitutes reversible error if he state that a witness to an important fact had either told the truth or perjured himself, since this does not allow for the fact that such witness might have been mistaken (Smith v. Lehigh Valley R. Co., 170 N. Y. 394). If counsel object to any portion of the charge, he should cause his exception to be noted (§ 995), and he should be careful to point out his objection clearly. "When it is intended to except to a specific proposition or to particular 230 CODE PRACTICE IN NEW YORK remarks of a judge in his charge to the jury, the counsel making the exception should put his finger on the prop- osition clearly and distinctly beyond any question and employ language entirely plain so that there can be no doubt as to the real character of the exception or as to what was actually intended. This is essential to enable the judge to correct, modify or change the language used, if he deem it proper and to prevent any misconception or misapprehension as to what portion of the charge the ex- ception was intended to apply " (McGinley v. U. S. Life Ins. Co., 77 N. Y. 495, 497; Adams v. Irving Natl. Bank, 116N.Y.606). Counsel has the right to submit propositions of law bearing upon the evidence, and it is the duty of the court to instruct the jury on each proposition. A denial of such right is the subject of exception and review upon appeal (Chapman v. McCormick, 86 N. Y. 479). Usually the requests have previously been reduced to writiug and they are handed to the judge before he begins to charge the jiu-y. While this should be done and every request in- cluded the propriety of which can reasonably be foreseen, yet it is not always possible to determine what turn events may take. There is therefore no rule of practice which precludes counsel from asking the court to give additional instructions after it has addressed the jury (Gallagher v. McMuUin, 7 App. Div. 321). But counsel who had full opportunity both before and after the charge, cannot be permitted to prolong the trial unreasonably and harass the court by unreasonable and interminable requests (O'Neil V. Dry Dock E. B. & B. R. Co., 129 N. Y. 125). It is not error to refuse to charge an abstract proposition not based on the concrete facts of the case. "A charge is not to be a mere legal essay" (Sperry v. Union Ry. Co., 129 App. Div. 594; 595; Priebe v. Kellogg Bridge Co., 77 N. Y. 597). Nor is it error to refuse a request where the TRIALS 231 proposition has already been substantially covered by the charge. The court is not bound to "charge in the very words of counsel, if he had, in other and appropriate language, given to the jury the true rule by which they were to be governed " (Morehouse v. Yeager, 71 N. Y. 594; Conley v. Meeker, 85 N. Y. 618). (J) The Verdict. The jurors then retire. Sometimes they return for further instructions upon the law, or if they are unable to recollect any portion of the testimony they may request that it be read to them by the stenographer. All communications with the jury must be in open court and in the presence of counsel for both parties. For instance, where the jurors sent from the jury room a written inquiry whether a certain question had been asked of a witness, and the stenographer pursuant to the judge's direction, wrote thereon that such question had not been put and caused it to be deUvered to them, it was held sufficient to vitiate the verdict (Watertown Bank & Loan Co v. Mix, 51 N. Y. 558). Nevertheless, though such communications should be firmly discouraged, they are said not to be cause for reversal unless the misconduct is likely to have influenced the verdict (Litzenberger v. Litzenberger, 99 Misc. 572). But this statement should be accepted with caution. If the jurors after a reasonable time, are unable to agree (and it is within the discretion of the judge how long they may be kept), they so report and the result is a mistrial (§ 1181). Sometimes, as when the case is con- cluded shortly before the closing hour, the judge will direct a sealed verdict. That is, the jurors will set down their decision in writing, sign, place it in a sealed envelope and dehver it to the clerk. Next morning on the opening of court the jury returns, the envelope is opened and the verdict read. The jury usually renders a general verdict which is de- 232 CODE PRACTICE IN NEW YORK fined as one by which it "pronounces generally upon all or any of the issues in favor either of the plaintiff or of the defendant" (§ 1186), e. g., "We find for the plaintiff in the sum of Ten thousand dollars "; or "We find for the defendant." In actions to recover a sum of money only or real property or a chattel, it has discretion to render a special verdict, and generally, the trial judge may direct that this be done if he deems such a course advisable (§ 1187). By a special verdict "the jury finds the facts only, leaving the court to determine which party is en- titled to judgment thereupon" (§ 1186). The unsuccessful party has the right to require that the jury be "polled" whereupon each juror is asked by the clerk "is this your verdict" (Labar v. Koplin, 4 N. Y. 547). If there is any dissent, they are sent back for further consideration (Warner v. N. Y. Cent. R. Co., 52 N. Y. 437; Weeks v. Hart, 24 Hun, 181). (K) Motions for New Trial and for Stay. Counsel for the losing party may now move to set aside the verdict and for a new trial upon the exceptions previously taken or because the verdict was for excessive or insufficient damages or otherwise contrary to the evidence or contrary to law. In practice, this is usually done at the end of the trial though the motion may be made before the trial judge at any time during the term (§ 999). To justify setting aside a verdict on the ground that it is contrary to the weight of evidence, it will not be enough that the conclusion reached by the jury was one which the trial judge would not have reached had the facts been submitted to him (Brush v. Constable, 166 App. Div. 543). It must appear from the whole testimony that the evidence of the prevailing party was so over- borne by the contrary evidence as to justify the con- clusion that the verdict was not really based upon a fair consideration of the testimony but was induced by some TRIALS 238 other feeling or consideration (Fick v. Metropolitan St. Ry. Co., 26 App. Div. 84; Coming v. Troy Iron & Nail Factory, 44 N. Y. 577, 594). Manifestly it is impossible to lay down a definite rule. As will be seen hereafter, when appeals are considered, a motion may be made on grounds outside the record, such as newly discovered evidence or surprise. Counsel should also request a stay of execution since unless such an appUcation is granted, the prevaiUng party may take immediate proceedings to collect the judgment (§ 1005). Usually thirty days are allowed. The court may also grant time within which to serve a case on appeal (see infra, p. 297). (L) Entry of Judgment. The prevaiUng party should proceed to enter his judgment. For that purpose he se- cures from the clerk a transcript from the minutes show- ing the result of the trial. Then he prepares a judgment, leaving the amoimt of costs blank. The following will serve as an illustration: Supreme Court of New York, County of New York. Andrew Atb^ns, Plaintiff, against Benjamin Bkis^w, Defendant. The issues in the above entitled action having been duly tried before Hon. Edward Evans, one of the Justices of this court, and a jury at Trial Term, Part 14, of the Supreme Court of New York in and for the County of New York at the County Court House in the Borough of Manhattan in the Qi\y of New York on the day of , 19 , and the jury having duly rendered a verdict in favor of the plaintiff and against the defendant in the sum of Ten thousand dollars and the costs of the plaintiff having been taxed at dollars, now on motion of Charles Carter, Esq., attorney for the plaintiff, it is Adjudged that the plaintiff, Andrew Atkins, do recover of the de- 234 CODE PRACTICE IN NEW YORK fendant, Benjamin Bristow, the sum of Ten thousand dollars together with dollars costs as taxed making in all the sum of dollars and that the plaintiff have execution therefor. Dated the day of , 19 . The prevailing party then prepares his bill of costs and disbursements (see §§3251-3261). The former will include such items as costs before notice of trial (to plaintiff $15 or $25 depending on the form of action; to defendant $10), costs after notice of trial ($15), trial fee, issue of fact ($30 unless trial occupied more than two days, then $10 additional) and term fees ($10 per term not exceeding five, at which cause is on calendar, excluding term of trial). It should be noted that disbursements cannot properly be taxed unless they have actually been incurred or will necessarily be incmred. For instance, attorneys sometimes insert a disbm-sement for service of summons where such service has been made by a clerk who is in receipt of a salary and who has done so merely as a part of his duties. There seems no legal warrant for this practice. Nor should affidavits or acknowledgments be charged for when taken by a notary in the office whose employer h^s not actually, paid him. the fees (and see entry of judgment on default, infra, p. 252). A copy of the bill is then served on the opposing at- torney with notice of taxation before the clerk. Five days' notice is required unless the attorneys reside or have their offices in the city or town where taxation is to be had, in which case, two days' notice is sufficient (§ 3263). In the City Court of New York, it is two days imless the attorneys reside or have their offices in that city, when it is one day (§3161, subd. 6). At the time fixed, the attorneys attend before the clerk who determines the amount due and inserts it in the judgment (§ 3262). He then signs the judgment (§ 1236) and the judgment roll is made up. TRIALS 235 When it is desired to enter judgment immediately, costs may be taxed without notice and the amount in- serted in the judgment. But immediately thereafter, a copy of the bill must be served with notice of retaxation (§3264). If on retaxation the costs are reduced, the docket is not changed but the amount of the reduction is deducted on execution. Upon entering judgment, the attorney makes up the judgment roll and files it with the clerk. This consists generally of the summons and the original or copies of the pleadings, final and interlocutory judgments and each paper on file as weU as a copy of each order which in any way involves the merits or necessarily affects the judgment (§§ 1237, 1238). Papers merely incidental to the action need not be included. For instance, proof of service of summons, is unnecessary unless the party has not appeared or answered (Bosworth v. Vandewalker, 53 N. Y. 597). The clerk then "dockets" the judgment, i. e., he enters it in the docket book under the judgment debtor's surname with the particulars thereof (§§ 1245, 1246) and the successful party is in a position to enforce it by execution. 4. Trial by the Court Without a Jury. Here there can, of course, be no motion to direct a ver- dict, charge, or request to charge. Nor are the rules of evidence appUed as strictly as in proceedings before juries. The mere fact that the trial judge may have re- ceived testimony which might properly have been ex- cluded, will not be sufficient to require a reversal of the judgment, where there is sufficient unobjectionable evi- dence to require the conclusion which he reached (Hey V. Colhnan, 78 App. Div. 584, affmd., 180 N. Y. 560; Mayne v. Nassau Elec. R. Co., 151 App. Div. 75, affmd., 210 N. Y. 607; Jefferson v. N. Y. El. R. Co., 132 N. Y. 483). 236 CODE PRACTICE IN NEW YORK The procedure upon entering judgment is somewhat different. The decision of the court "must state separ- ately the facts found and the conclusions of law and direct the judgment to be entered thereon " (§ 1022). This is mandatory (Wander v. Wander, 111 App. Div. 189). It will not be enough to set forth testimony pro and con. The facts found should be plainly stated (Dougherty v. Lion Fire Ins. Co., 183 N. Y. 302). The following will serve as an illustration.* Supreme Court of New York, County of New York. Andrew Atkins, Plaintiff, against Benjamin Bristow, as Executor of the Last Will and Testament of Thomas Troy, Deceased. Defendant. This cause having been tried by the Hon. Edward Evans, one of the Justices of this Court, without a jury, upon the issues of fact joined therein at a Special Term of the Supreme Court of New York in and for the County of New York held at Part VIII thereof in the County Court House in the Borough of Manhattan, in the City of New York on the day of ■ 19 , and the plaintiff having ap- peared by Charles Carter, Esq., his attorney, and the defendant by Daniel Darling, Esq., his attorney, and the proofs of the respective parties and the arguments of counselyhaving been heard and due de- liberation having been had, I do find and decide as matter of fact as follows: FINDINGS OF FACT I. That on and for many years prior to the day of , 19 , one Thomas Troy was the owner in fee and was seized and pos- * This action was brought to remove a cloud upon the title of prop- erty owned by deceased who had left a wil' which it was held, did not affect the premises. TRIALS 237 sessed of certain real property on which at the time of his death and for many years prior thereto he lived, said property being situated in the Borough of Manhattan, in the City, County and State of New York and being bounded and described as follows: (Description). II. That on the said day of , 19 , the said Thomas Troy died leaving a last will and testament, bearing date the day of , 19 , which was duly admitted to probate by the Surrogate's Court of New York County on the day of , 19 , and letters testamentary were duly issued to Benjamin Bristow, the defendant in this action on that day. That the said Last WiU and Testament is as follows: (Inserted). III. That said Thomas Troy left him surviving as only heir and next of kin, the plaintiff Andrew Atkins, his nephew, who is the son of a deceased sister, Mary Atkins. IV. That said plaintiff is now and has been since the said day of , 19 , seized and in possession of the said premises hereinbefore described as heir of the said Thomas Troy. And I find and decide as matter of law as follows: CONCLUSIONS OF LAW I. That the said last will and testament of Thomas Troy dated the day of I 19 , and duly admitted to probate by the Surrogate's Court of New York County on the day of ,19 , is insufficient in law to transfer or affect the said real estate and premises herein described. II. That the defendant Benjamin Bristow, as executor of the estate of said Thomas Troy, deceased, be and he hereby is adjudged barred from all claim to any estate in the real property hereinbefore described and from all claim and right to any interest therein. III. That Andrew Atkins, the plaintiff in this action, is hereby ad- judged to be the owner in fee of the aforesaid premises as heir of the said Thomas Troy. IV. That the plaintiff is entitled to judgment against the defendant aforesaid in accordance with the foregoing and that costs to be paid out of the estate be awarded to the plaintiff in the sum of three hun- dred and fifty dollars and to the defendant in the sum of two hundred and fifty dollars, and I direct such judgment to be entered hereupon accordingly. , Dated the day of , 19 . 238 CODE PRACTICE IN NEW YORK Thereupon a judgment is entered which in the case supposed was as follows: At a Special Term, Part VIII of the Supreme Court of New York, held in and for the County of New York in the County Court House in the Borough of Manhattan in the City of New York on the day of , 19 . Present — Hon. Edward Evans, Justice. Andrew Atkins, Plaintiff, Benjamin Bristow, as Executor of the Last Will and Testament of Thomas Troy, Deceased. Defendant. This cause having been tried at a Special Term of this Court held at Part VIII thereof in the Count3'- Court House in the Borough of Manhattan, in the City of New York on the day of , 19 , before Hon. Edward Evans, a justice of this court, and the de- cision of the said justice having been duly made in writing and filed, whereby it has been found and decided that the plaintiff is entitled to judgment for the relief demanded in the complaint, now therefore, it is Ordered, adjudged and decreed that the Last Will and Testament of the late Thomas Troy, dated the day of , 19 ; and admitted to probate by the Surrogate of the County of New York on the day of , 19 , is insufficient in law to transfer or affect the real estate and premises hereinafter described and that defendant, as executor of the estate of the said Thomas Troy, deceased, be and he hereby is barred from all claim to any estate in the said real property and from all claim and right to any interest therein and that Andrew Atkins, the plaintiff herein, is the owner of the said premises in fee as heir of said Thomas Troy, deceased, which said premises are bounded and described as follows; (Description). And it is further Ordered, adjudged and decreed that the costs to be paid out of the estate are hereby awarded as follows : To the plaintiff three hundred and fifty dollars, to the defendant two hundred and fifty dollars. TRIALS 239 In practice, the prevailing counsel prepares the findings and conclusions and submits them to the trial judge. If the losing party intends to appeal, he will hkewise submit what he regards as proper findings and conclusions. Technically this must be done before the cause is finally submitted to the coiu-t and not afterwards unless per- mission is obtained (§ 1023; Hartmann v. Schnugg, 113 App. Div. 254, affmd. 188 N. Y. 617). In practice, how- ever, it is usual to wait until the trial judge has indicated what his determination will be. In the First Department, it will appear in the New York Journal and in other de- partments the attorneys are usually informed. The trial judge, if he approves of the findings and conclusions of the prevailing party, will sign them, and he notes in the margin his disposition of each proposition offered by the losing counsel (§ 1023). The trial judge also signs the judgment and the clerk enters it. The prevail- ing party serves a copy of the findings and conclusions and of the judgment with notice of entry upon the op- posing counsel, who has ten days within which he may file his exceptions thereto with the clerk and serve a copy thereof upon the winner (§994). The following will serve as an illustration of the exceptions: Supreme Court of New York, County of New York. Andrew Atkins, Plaintiff, against Benjamin Bristow, as Executor of the Last Will and Testament of Thomas Troy, deceased. Defendant. Please take notice that the defendant above named hereby ex- cepts to the decision of the court filed herein on the day of ,19 , to the findings of fact and conclusions of law 240 CODE PRACTICE IN NEW YORK therein and to the refusal of the court to find the facts and conclusions requested by defendant as follows: I. To the fourth finding of fact (or to so much of the fourth finding, of fact as found that, &c.) on the ground that there is no evidence to support the same. II. To the first conclusion of law ofl the ground that there is no evidence to support the same. III. To the refusal to find as requested in paragraph IV of the findings of fact submitted by the defendant. ^ IV. To the refusal to find the conclusion of law as requested in paragraph II of the conclusions of law submitted by the defendant. Dated the day of , 19 . Daniel Dakling, Attorney for Defendant. (Address.) To , Esq., Clerk of the Supreme Court, New York County. Charles Carter, Esq., Attorney for Plaintiff. (Address.) 5. Trial by Referee. References may be either (a) to hear and determine the entire issues or (b) with respect to a question inci- dentally arising. Illustratfons of the latter are references to compute the amount due in mortage foreclosures, to ascertain the rights and interests in partition actions, to take testimony, etc. References are also (c) upon con- sent or (d) compulsory. Generally, the parties may stipulate as to this method of trial. Where the referee is not named, he may be desig- nated by the court. If he refuses to serve or if a new trial is granted, the court must appoint another referee un- less the stipulation expressly provides otherwise (§ 1011). Hence if it is desired that the same referee shall continue to act in the event of a reversal, a provision to that effect should be specially inserted. In certain cases, however, a reference cannot be ordered as a matter of course upon TRIALS 241 the consent of parties, namely: in matrimonial actions, in actions against corporations for dissolution, the appoint- ment of a receiver or distribution of their property un- less brought by the attorney general, and in actions where the defendant is an infant. Here where the parties con- sent, the court may grant or refuse a reference and when granted, it must designate the referee (§ 1012). This is because of the great danger of collusion in these cases. Compulsory references to hear and determine the is- sues may be ordered "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" (§ 1013). Here the account to be examined must be directly involved in the action. It is not enough that it is incidental or collateral (Kings Co. Lighting Co. v. Woodbury, 177 App. Div. 451). Again, a compulsory reference cannot be ordered merely because the case may possibly involve the examination of a long account since it must appear with reasonable certainty that it will re- quire such an examination (Leary v. Albany Brewing Co., 66 App. Div. 407). Nor is it enough that there are a large number of items (Smith v. London Assurance Corp., 114 App. Div. 868). Thus a reference was re- fused in an action brought to recover for professional services where there were ninety items of service (Moyer V. ViUage of NelUston, 110 App. Div. 602). The rule has been announced as follows: "Facts must be disclosed either by affidavit or upon the face of the pleadings, from which the conclusion can be fairly drawn that so many separate and distinct items of account will be Utigated on the trial that a jury cannot keep the evidence in mind in regard to each of the items and give it the proper weight and application when they retire to dehberate upon their verdict" (Spence v. Simis, 137 N. Y. 616, 617). The court also has the right in equity cases to appoint 242 CODE PRACTICE IN NEW YORK a referee to report upon one or more specific questions of fact involved in the issue (§ 1013). It may likewise direct a reference to take an account and report after interlocutory or final judgment or where necessary for the court's information, or to determine and report upon a question of fact arising upon a motion or otherwise except upon the pleadings (§ 1015; Vilas v. Plattsburgh & M. R. Co., 123 N. Y. 440; Zapp v. Miller, 109 N. Y. 51). It will be observed that in these incidental refer- ences, the referee may be required to take testimony and report his conclusions to the court (Camp v. Ingersoll, 86 N. Y. 433), a point which should be kept in mind when the practice on entering judgment is considered. No person shall be appointed referee to whom all the parties object except in matrimonial actions (§ 1024). In cases where the court is authorized to act, it may in its discretion appoint either one or three and where there is a reference by consent the parties may select any number not exceeding five (§ 1025). In practice, however, only one referee is selected. By § 115 of the Judiciary Law, provision is made for the appointment of former judges as Official Referees. Except where the reference is upon consent, a sole referee must be an attorney. Nor shall any person be appointed who is the partner or clerk of the attorney or counsel of the party in whose behalf the application is made or who is in any way connected in business with such attorney or counsel or who occupies the same o£&ce with hun (Rule LXXIX). The trial before a referee (i. e., the reference being to hear and determine the issues) is brought on by hke notice (i. e., notice of trial), conducted in hke manner and the papers to be furnished (e. g., marked pleadings) are the same as where the trial is by the court without a jury (§1018). TRIALS 243 For an incidental reference the Code provides no method and it is brought on by a summons to attend. At the opening, the referee takes the oath of office un- less this is waived by all parties. He swears faithfully and fairly to try the issues or to determine the questions referred to him and to make a just and true report according to the best of his understanding (§ 1016). This oath is reduced to writing and is annexed to his re- port. As already stated, the trial proceeds in the same manner as though before a court without a jury. If the reference be to hear and determine, the witnesses are not required to sign their testimony but signing is nec- essary in incidental references except to compute the amount due in foreclosure cases (Rule XXX). Upon the conclusion, the referee makes his written report containing the findings of fact and conclusions of law. This is either filed with the clerk or delivered to the at- torney for one of the parties and imless so filed or delivered within sixty days from the time when the cause is sub- mitted, either party may serve notice that he elects to end the reference (§ 1019). Either attorney may submit proposed findings and conclusions and reqmre that they be passed upon (§ 1023). Judgment is entered directly upon the report where the reference is to hear and deter- mine the issues (§ 1228), though in equity actions the Jorm of the judgment must be settled by the referee or by the court (Maicas v. Leony, 50 Hun, 178, affmd. 113 N. Y. 619; Paine v. Aldrich, 13 N. Y. Supp. 455). Copies of the findings and conclusions and of the judgment with notice of entry are served upon the losing attorney who files and serves exceptions in the same manner as where a case is tried before the court (§ 994). In references to determine incidental questions, the practice is to move to conform the report and enter an order accordingly 244 CODE PKACTICE IN NEW YORK 6. Arbitrations. Although arbitrations are placed in the Code among the special proceedings, it seems logical to consider them at this point. Within certain limitations the parties might at common law agree to a determination of their differences in this manner. The Code does not affect these common law arbitrations "except as otherwise expressly prescribed" (§ 2386) . For instance, the provisions requiring that arbitrators be sworn unless the oath is waived in writing, appHes both to common law and code arbitrations (Hinkle V. Zimmerman, 184 N. Y. 114). Necessarily we shall discuss only cases covered by the Code, calling attention, however, to the use of the words "or otherwise" or similar expressions in many of the sections which indicate their appHcabihty to arbitrations at common law (see Hinkle v. Zimmerman, supra; New York Lumber & W. W. Co. V. Schneider, 119 N. Y. 475). Two or more parties may by a writing duly acknowl- edged or proved and certified as a deed, submit any controversy to one or more arbitrators and agree that a judgment of a court of record shall be rendered upon the award (§ 2366) . This cannot be done, however, where (a) one of the parties is an infant or is incompetent through lunacy, idiocy or habitual drunkenness, though where a competent party has knowingly entered into a submission with an incapable, an objection on this ground can be taken only in behalf of the latter; (b) where the controversy is over a claim to an estate in real property in fee or for hfe, though this does not apply to a claim to an estate for years or other interest for a term of years or for one year or less, or to a controversy respecting par- tition between joint tenants or tenants in common or respecting boundaries or the admeasurement of dower (§ 2365; Wiles v. Peck, 26 N. Y. 42). An additional ar- TRIALS 245 bitrator or an umpire cannot be selected or appointed unless the submission expressly so provides. He must be appointed in writing and he must sit with the original arbitrators upon the hearing. Otherwise the nlatter must be re-heard unless a rehearing is waived (§ 2367). The arbitrators appoint a time and place for the hearing and give notice thereof (§2368). Like referees, they take an oath unless this is waived (§ 2369). They may require the attendance of witnesses (§ 2370). They hear the allegations and proofs and an award by a majority is vaUd unless the concurrence of all is expressly required in the submission (§ 2371). The award must be in writing and within the time limit of the submission, if any, subscribed by the arbitrators, acknowledged or proved and certified and either filed with the clerk or dehvered to one of the parties or his attorney (§ 2372). At any time within one year a motion may be made on notice to confirm the award (§ 2373), or a motion may be made to vacate on the ground that the award was procured by corruption, fraud or other undue means, or that there was evident partiaUty or corruption in the arbitrators or where they were guilty of misconduct in refusing to postpone the hearing upon sufficient cause or in refusing to hear pertinent, and material evidence or were guilty of any other prejudicial misbehavior, or where such ar- bitrators exceeded their powers or so imperfectly executed them that a mutual, final and definite award was not made. Where the award is vacated and the time within which the submission requires it to be made has not expired, the court may direct a re-hearing (§ 2374). It should be emphasized that the award must be a definite stiTid final declaration of the rights of each party as against the other. It must not leave matters properly embraced in' the submission open for future contention. For ex- ample, an award deciding that one of the partners in a 246 CODE PRACTICE IN NEW YORK dissolved firm was entitled to receive the assets and all books and papers, continue the business, pay liabiUties, give a formal release to the other and pay him a sum named and in addition the amount "which may be due to him" on the firm's books at a specified date, is not definite and final. It contemplated fmiiher action to ascertain what sum was due (Herbst v. Hagenaers, 137 N. Y. 290). In certain cases, the court may modify or correct the award, i. e., where there was evident miscal- culation of figures or an evident mistake in description, or where the arbitrators have awarded upon a matter not submitted to them not affecting the merits, or where the award is imperfect in a matter of form not affecting the merits (§ 2375). Notice of motion to vacate, modify or correct must be served within three months (§ 2376). Upon the granting of an order, confirming, modifying or correcting the award, judgment may be entered as upon a referee's report (§ 2378) and the clerk then makes up the judgment roll and dockets the judgment (§ 2379). The arbitrators "derive their power to act from the continuing consent of the parties to the agreement, when the agreement while yet executory, is broken by the re- fusal of a party to be bound by it or to perform it, the foimdation of the arbitrators' power is gone and they have no more power over the withdrawing party to biad him by their acts " (People ex rel. Union Ins. Co. v. Nash, 111 N. Y. 310, 317). Hence either party may revoke a submission to arbitrate at any time before the allegations and proofs have been closed and the matter finally submitted to the arbitrators (§ 2383) . But the other party may maintain an action against him and recover all costs, other expenses and damages incurred in preparing for the arbitration and in conducting proceedings up to the time of the revocation. Likewise the arbitrators may recover their fees and ex- penses (§2384). Stipulated damages, a penalty, or for- TRIALS 247 feiture expressed in the submission or in any collateral instnunent will not be recognized (§ 2385). If, however, a party dies or because of his incompetency through insan- ity, habitual drunkness, &c., a committee of his person or estate is appointed, such death or appointment if occurring before the award is filed or delivered will revoke the sub- mission (§ 2382) . 7. Submission on Agreed Statement of Facts. It may be that there is no dispute as to the facts and the parties wish to have the controversy decided speedily. Here they may dispense with the preliminary steps such as issuance of process, service of pleadings, etc., by agreeing on a case containing a statement of the facts, and by pre- senting a written submission accompanied with the affi- davit of one of the parties to the effect that the contro- versy is real and the submission made in good faith for the purpose of determining the rights of the parties. The sub- mission must be acknowledged or proved and certified as a deed (§ 1279). Upon filing the case, subnassion and affi- davit, the controversy becomes an action (§ 1280). An order of arrest, temporary injunction or attachment can- not, however, be granted and costs are in the discretion of the court. The action is tried before the Appellate Division (§ 1281), the case being printed as though the proceeding were an appeal (Rule XLI) . ".The court is confined to the facts agreed upon and can make no inferences or in any way depart from or go beyond the statement presented" (Fearing v. Irwin, 55 N. Y. 486, 489; Doyle v. Olson Realty Co., 132 App. Div. 200). CHAPTER XIII THE ENTRY, ENFORCEMENT, AND DISCHARGE OF JUDGMENTS 1. Judgments — In General. 2. Entry of, Judgment. (A) Upon Default. (B) Upon Confession. 3. Executions. (A) In General. (B) Against the Property. Against Earnings, Income, &c. (C) Against the Person. (D) For the Delivery of Real Property or Chattels. 4. Supplementary Proceedings. 5. Judgment Creditors' Actions. 6. Suit on the Judgment. 7. Discharge by Satisfaction. 8. Vacating, Setting Aside, and Correcting. (A) Vacating and Setting Aside. (B) Correcting the Judgment. 1. Judgments — In General. Judgments are either interlocutory or final (§ 1200). The former merely determine one or more of the questions in issue without fully setthng the controversy and con- template further proceedings for the purpose of definitely fixing the litigant's rights. For instance, an interlocutory judgment may be entered overruling a demurrer and giving defendant leave to answer. If defendant fails to avail himself of this privilege, final judgment may be entered. So in partition actions, an interlocutory judgment is first entered reciting the interests of the parties and directing a sale. After the sale there is a final judgment confirming it. 248 ENTRY, ENFORCEMENT AND DISCHARGE OF JUDGMENTS 249 As previously stated, where the summons has been served upon some but not upon all of the defendants, plaintiff may sever and proceed against those served (§456; see supra, p. 43). So, where there are several parties who have actually been brought into the litiga- tion, judgment may be given for or aggiinst one or more plaintiffs or for or against one or more defendants and it may determine the ultimate rights of the parties on the same side as between themselves (§ 1204), or the court may direct a severance (§ 1205). As will be seen hereafter, a judgment when docketed is a lien upon the debtor's real property for ten years and may continue for two ygars additional in the event of his death. It binds chattels from the time when the execution is dehvered to the sheriff (see infra, pp. 258, 260). 2. Entry of Judgment. (A) Ufon Default* The method of entering judgment upon defendant's default in appearing or pleading, will de- pend in certain cases upon whether plaintiff has served (a) merely a summons or (b) a summons and complaint or (c) a summons with a notice stating the amoimt for which judg- ment will be taken. In the last two cases, when personal service has been made, if the action, roughly speaking, is to recover liquidated damages on contract, judgment may be entered by the clerk (§§ 419, 420; see supra, p. 55). No notice need be given to defendant if he has defaulted in appearing. Five days' notice is required if he has ap- peared and defaulted in pleading (§ 1219). The plaintiff files proof of service of the summons and of a copy of the complaint or the notice and of the appearance as the case may be, with an affidavit showing the default (§ 1212). If there has been no appearance, plaintiff must also file * For entry of judgment after trial, see Ch. XII, swpra. 250 CODE PRACTICE IN NEW YORK the affidavit required by § 200 of the Federal "Soldiers' and Sailors' Civil ReUef Act" of March 8, 1918.* This is essential in all cases where defendant has so defaulted, a point which must be kept in mind whatever may be the method of entering judgment. Nor in any case, can judgment be takeji against an infant defendant until 20 days have elapsed since the appointment of a guardian adUtem (§1218). When judgment can be entered by the clerk, if the com- plaint is verified, he enters it for the sum demanded or at * Sec. 200. "That in any action or proceeding commenced in any court if there shall be a default of an appearance by the defendant, the plaintiff before entering judgment shall file in the court an affidavit setting forth facts showing that the defendant is not in military service. If unable to file such an affidavit, plaintiff shall in lieu thereof file an affidavit setting forth either that the defendant is in the military service or that plaintiff is not able to determine whether or not defendant is in such service. If an affidavit is not filed showing that the defendant is not in the military service, no judgment shall be entered without first securing an order of court directing such entry, and no such order shall be made if the defendant is in such service until after the court shall have appointed an attorney to represent defendant and protect his interest and the court shall upon application make such appoint- ment. Unless it appears that the defendant is not in such service the court may require as a condition before judgment is entered, that the plaintiff file a bond approved by the court conditioned to indemnify the defendant, if in military service, against any loss or damage that he may suffer by reason of any judgment, should judgment be there- after set aside in the whole or in part. And the court may make such other and further order or enter such judgment as in its opinion may be necessary to protect the rights of the defendant under this Act." By the succeeding subdivisions of this section, it is provided that no attorney so appointed shall have authority to waive any right of the person for whom he is appointed or bind him by his acts; that the judgment may be opened not later than ninety days after the termina- tion of defendant's service if it is made to appear that he has a meri- torious or legal defense; that there may be a stay of proceedings, execution, &c. See Davison v. Lynch, 103 Misc. 311. ENTRY, ENFORCEMENT AND DISCHARGE OF JUDGMENTS 251 plaintiff's option for a smaller amount and he may com- 'pute interest. If the complaint is not verified, the clerk computes the sum due upon an instrument for the pay- ment of money only if action is brought thereon, and in other cases, ascertains the amount by the examinlation of plaintiff or other competent proof (§ 1213). Hence, the advisability of serving a verified complaint, since it ob- viates the necessity of this exanlination, which as will be noted, is required when the notice is served. Upon enter- ing judgment, the clerk, of course, makes up the judgment roll (§ 1237). The following is a form of a statement and judgment on default. Supreme Court of New York, County of New York. Andhew Atkins, Plaintiff, Benjamin Bhistow, Defendant. Amount claimed in complaint (or in summons) $5,000.00 Interest 150.00 Total $5,150,00 252 CODE PRACTICE IN NEW YORK Costs by statute * .115.00 Service of summons and complaint f 1.50 Clerk's fee filing summons t 50 Clerk's fee taxing costs § 50 Two affidavits 12 cents each || . 24 Clerk's fee on entering judgment % 1 . 10 Satisfaction piece ** 25 Sheriff's fees on execution ft 1 . 75 20.84 Total $5,170.84 State of New York, County of New York. Charles Carter, being duly sworn, deposes and says that he is the attorney for the plaintiff in the above action; that the time of the defendant to appear, answer or demur herein has expired; that said defendant has not appeared, answered or demurred herein and that he is now in default (or if he has appeared and failed to answer or demur, set forth the facts) ; that the foregoing disbursements have been made in this action or will necessarily be made or incurred therein. Sworn to before me, &c. Charles Carter. * Section 3251, subd. 1. fFor each additional defendant served not exceeding ten, two dollars, and for each necessary defendant in excess of that number one dollar (§3251, subd. 1. See supra, p. 234, as to necessity of actual payment). t In Supreme Coiu't, New York and Bronx Counties and in Bronx County Court (§ 3332 B, subd. 32). § In Greater New York (§ 3332 B, ^ubd. 6). II Section 3298. See supra, p. 234, as to necessity of actual payment. 1[ Generally the clerk's fee is 50 cents (§ 3301) but in Greater New York it is one dollar with ten cents for each name the judgment is to be docketed against (§§ 3332 A, 3332 B, subd. 5). ** Sections 3304, subd. 9; 3332 B, subd. 20. tt For receiving an execution against property in Greater New York 11.50, elsewhere 50 cents, in both cases mileage at 10 cents per mile is added (§ 3307, subd. 6) ; for a retum'in Greater New York 25 cents, elsewhere 12 cents (§ 3307, subd. 10). ENTRY, ENFORCEMENT AND DISCHARGE OF JUDGMENTS 253 Judgment: Entered the day of , 19 . The summons (and complaint or with notice) in this action having been personally served on Benjamin Bristow, the defendant, on the day of , 19 , and the time for said defendant to appear, answer or demur herein having fully expired and said defend- ant not ha-v'ing appeared, answered or demurred herein (or if there has been an appearance so state). Now on motion of Charles Carter, Esq., plaintiff's attorney, it is hereby adjudged that Andrew Atkins, the plaintiflF, do recover of Ben- jamin Bristow, the defendant, the sum of dollars, the amount claimed and interest with dollars, costs and disbursements, amounting in the whole to the sum of dollars (S ) and that said plaintiff have execution therefor. John Jones, Clerk. In cases other than the foregoing, judgment can be entered only on appUcation to the court or judge. This method therefore must be pursued where only the summons has been served; or where though a complaint or notice has been served, the action is not to recover liquidated damages on contract, e. g., is in tort or for equitable rehef ; or in cases where the summons was served without the state or otherwise than personally, i. e., by substituted service or by pubUcation. Here, if defendant has appeared generally he is entitled to eight days' notice of the appli- cation (§ 1219). Plaintiff files the same proof of service and default as where judgment is taken before the clerk (§§ 1214, 1216). The court or a judge thereof may make a computation or assessment or take an account or proof either (1) with or (2) without a jury, or (3) by means of a reference, or (4) a writ of inquiry (§§ 1215, 1216). When defendant was not personally served, plaintiff must prove his cause of action, i. e., nothing is admitted by the default. If the defendant is a non-resident or a for- eign corporation, plaintiff or his agent or attorney must be examined respecting any payments on account of the demand (§ 1216) and must file proof by affidavit that a 254 CODE PRACTICE IN NEW YORK warrant of attachment has been levied, with a description of the property attached and a statement of its value according to the inventory (§ 1217) and should the court require it, an undertaking for restitution in case the defend- ant later on applies and is admitted to defend the action and succeeds in his defense (§§ 1216, 1217). The object of the attachment as has already been stated is to estab- Ush jurisdiction the action being then quasi in rem. Defendant by serving a written demand may secure the right to a five days' notice of the execution of any refer- ence or writ of inquiry. This is not deemed an appear- ance (§ 1219, subd. 2). 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 (§§ 1215, 1216). The Code does not attempt to define this writ which is a rehc of common law practice. The method which is here pursued is not uniform in the various de- partments. In some, it is the practice to direct this writ to the sheriff, who summons a jury to assess the damages and judgment is entered upon the return of the inquisition or upon apphcation to the court. In others, a writ of inquiry is executed by the court, e. g., it may be issued at special term to a trial term, in which case, the plaintiff obtains a transcript from the minutes and enters judgment as though there had been a regular trial (cf . Elsey v. Inter- national Railway Co., 93 App. Div. 115). The following is an order for a writ of inquiry : ENTRY, ENFORCEMENT AND DISCHARGE OF JUDGMENTS 255 At a Special Term of the Supreme Court of New York held in and for the County of New York, at Part thereof in the County Court House in the Borough of Manhattan m the City of New York, on the day of 19 . Present — Hon. Edward Evans, Justice. Andrew Atkins, Plaintiff,/ against Benjamin Beistow, Defendant. An application having been duly made by the plaintiff above named for judgment in an action (state nature of action) on the ground that defendant was in default in ("appearing" or "pleading") and for a writ of inquiry to assess the damages due to the plaintiff, and it ap- pearing by the affidavit of Nicholas Noyes, sworn to the day of , 19 , that the summons and complaint in this action was duly personally served upon the defendant within the state on the day of , 19 , and that said defendant has not appeared therein and that no copy of an answer or demurrer has been served (if defendant has appeared and has defaulted in pleading, so state) and that the defendant is in default (and if required "that notice of this application for judgment has been duly served on defendant's attorney"). Now on motion of Charles Carter, Esq., attorney for plaintiff, no one appearing in opposition thereto, it is hereby Ordered that a writ of inquiry issue to the sheriff of the County of New York, directing the said sheriff to inquire and ascertain by a jury, what damages the said plaintiff has sustained and to which he is entitled by reason of the matters in the complaint contained and that the said sheriff return the inquisition so to be taken by him with all convenient speed to the clerk of this court for its further action (or "and that upon the coming in of the said inquisition the said clerk enter judgment in favor of the plaintiff against the defendant for the amount of the damages assessed by said inquisition together with the costs of this action without further order of the court"). In cases where the writ is issued to the court, the direction may read as follows: "Ordered that the damages which the plaintiff has sus- 256 CODE PRACTICE IN NEW YORK tained and to which he is entitled by reason of the matters in the com- plaint contained, be ascertained by a jury under the direction of the Justice of the Supreme Court holding Trial Term, Part II thereof in and for the County of New York, at the Court House in the Borough of Manhattan in the City of New York on the day of , 19 , at the opening of court on that day or, as soon thereafter as counsel may be heard and that a writ of inquiry be issued for that purpose and that judgment be entered herein in accordance with the verdict of said jury." Enter, E. E. J. S. C. The following is a writ of inquiry: Supreme Court of New York, County of New York. Andrew Atkins, Plaintiff, against Benjamin Beistow, Defendant. The People of the State of New York to the Sheriff of the County of New York, Greeting: Whereas Andrew Atkins did bring an action in our Supreme Court against Benjamin Bristow, in which he claimed damages against the said Benjamin Bristow in the sum of dollars, as stated in the cdmplaint herein, a copy of which is hereto annexed and Whereas such proceedings have thereupon been had in our said Supreme Court that the said Andrew Atkins should recover his said damages, but it is unknown to our said court what the same may be, Now, therefore we command you that by the oath of twelve good and lawful men of your bailiwick you diUgently inquire what damages the said Andrew Atkins has sustained by reason of the matters and things in the said complaint contained, and that you return the in- quisition which you shall thereupon take with all convenient speed under your seal and the seals of those by whose oath you shall take that inquisition, to the clerk of the County of New York, together with this writ. Witness Hon. Edward Evans, a Justice of the Supreme Court at the ENTRY, ENFORCEMENT AND DISCHARGE OF JUDGMENTS 257 County Court House in the Borough of Manhattan, in the City of New York, this day of , 19 . 'Allowed E. E. John Jones, Justice. Clerk. Charles Carter, Attorney for Plaintiff. The following is a form of judgment after the return of a writ of inquiry, the action being one for personal injuries: Supreme Court of New York, County of New York. Andrew Atkins, Benjamin Bbistow, Plaintyt, Defendant. The summons and complaint in the above entitled action having been duly personally served on the defendant within the State of New York and the said defendant having defaulted in appearing (or in pleading) and an order having been duly made and filed in the office of the Clerk of the Comity of New York on the day of , 19 , directing that * judgment be rendered in favor of the plaintiff and that a writ of inquiry issue to the Sheriff of the County of New York to assess the damages and that upon the coming in of the writ of inquiry, judgment should be entered in accordance therewith and said writ of inquiry having been duly executed by the Sheriff of the County of New York, and the inquisition on said writ of inquiry having been duly returned and filed in the office of the Clerk of the County of New York on the day of , 19 , by which it appears that the plaintiff, Andrew Atkins, is entitled to recover of the defendant Benjamin Bristow the sum of dollars, as damages, and the costs of the plaintiff having been duly taxed at the sum of dollars. (Or, after '^ insert: "the damages which the plaintiff has sustained and to which he is entitled be ascertained by a jury under the direction of the Justice of the Supreme Court holding Trial Term, Part II 258 CODE PRACTICE IN NEW YORK thereof in and for the County of New York and that a writ of inquiry be issued for that purpose and that judgment be entered herein in accordance with the verdict of said jury, and this cause having been dvily brought on before Mr. Justice Evans and a jury at said Trial Term, Part II of said Supreme Court, New York County, and said jury having rendered a verdict of dollars damages in favor of the plaintiff, Andrew Atkins, against the defendant, Benjamin Bris- tow, and the costs of the plaintiff having been duly taxed at the sum of doUars.") Now on motion of Charles Carter, Esq., attorney for the plaintiff, it is Adjudged that the plaintiff, Andrew Atkins, recover of the defend- ant, Benjamin Bristow, the sum of dollars damages and the sum of dollars costs, making in all the sum of dollars, and that the plaintiff have execution therefor. Dated the day of , 19 . John Jones, Clerk. As already stated, when the judgment roll is filed, the clerk "dockets" the judgment, i. e., he enters in the " docket book " the particulars thereof under the initial letter of the judgment debtor's surname (§§ 1245, 1246), and upon payment of his fees, must furnish transcripts thereof (§ 1247). Such transcripts are procured usually for the purpose of fiUng them in other counties in which the judgment debtor has property so that an execution may be issued there. A judgment does not bind real property until it is docketed (§ 1250). It is then a lien for ten years (§ 1251). After the expiration of that time, the sheriff may levy by fihng a notice with the County Clerk (§ 1252). The lien of a judgment upon goods and chattels not exempt, attaches from the time when the execution is delivered to the sheriff (§ 1405), but this will not affect a title acquired before the actual levy by a purchaser in good faith and without notice of the issuance of the execution (§ 1409; Williams v. Shelly, 37 N. Y. 375). When the summons has been served by publication, ENTRY, ENFORCEMENT AND DISCHARGE OF JUDGMENTS 259 plaintiff, if possible, should serve the notice prescribed by § 445 (see supra, p. 68), so as to cut down the time within which defendant may naove to open the default. (B) Judgment upon Confession. If a debtor is willing to admit the debt and save his creditor the trouble and expense of a law suit, he may confess judgment. He signs and verifies a statement setting forth the amount and particulars of the claim and authorizing the entry of judgment therefor. This statement is filed with the clerk who thereupon enters judgment and makes up the. judgment roU (§§ 1273-1278). 3. Executions. (A) In General. A final judgment may be enforced by execution where; (1), it is for a sum of money or directs the payment of a sum of money; or (2), where it is in plaintiff's favor in an action of ejectment or for dower; or (3), awards a chattel to either party in an action for its recovery (§ 1240). Roughly speaking, other judgments, i. e., in equity, are enforceable by contempt proceedings, among which are judgments requiring the payment of money into court or to an officer, except when due on a contract or as damages for its breach (§ 1241). It should be noted, however, that the fact that the action was in equity will not itself justify contempt proceedings. If it is for a sum of money, to be so en- forceable it must direct payment into court or to an officer and must not he due on contract or as damages for breach of contract (Harris v. ElUott, 163 N. Y. 269; Coffin v. Coffin, 161 App. Div. 215). "It has become well es- tablished . that punishment as for a contempt can- not be inflicted for disobeying a final judgment in cases where an execution can issue" (Kittel v. Stueve, 11 Misc. 279, 281, affmd. 146, N. Y. 380). The execution may be issued of course at any time 260 CODE PRACTICE IN* NEW YORK within five years after the entry of the judgment (§ 1375). After five years have elapsed, it can only be issued where (1) an execution had been issued within the five years and returned wholly or partly unsatisfied; or (2), leave of court is obtained (§§ 1377, 1378). In other words, if the judgment creditor has issued execution within five years, he may issue another. If he has failed to do so, he must apply for permission. If the judgment debtor has died, leave to issue execution must likewise be ob- tained which cannot be granted until eighteen months have expired. The lien of the judgment is continued for two years after the death (§ 1380). So, permission must be obtained to issue execution against an executor or administrator as such (§ 1825). There are four kinds of executions: (1), against prop- erty; (2), against the person; (3), for the deUvery of the possession of real property with or without damages for its withholding; (4), for the deUvery of a chattel with or without damages for its detention (§ 1364) . Executions upon the same judgment may be issued at the same time to two or more counties (§ 1365) . An execution must intelhgibly describe the judgment and require the sheriff to return it within sixty days (§ 1366). When issued out of a court other than that in which the judgment was rendered upon fiUng a trans- cript, it must so state (§ 1377). When issued on a money judgment, it must specify the amount and the sum ac- tually due and may specify a day from which interest is to be computed (§ 1368). (B) Executions against the Property. An execution against property can be issued only to a county in which the judgment is docketed (§ 1365). If the judgment roll is not filed in the county to which it is issued, it must specify the time of docketing. It must require the sheriff to satisfy it first out of personal property and then out ENTRY, ENFOECEMENT AND DISCHARGE OF JUDGMENTS 261 of real property if sufficient personalty cannot be found (§ 1369) . The following is a form : The People of the State of New York, To the Sheriff of the County of , Greeting: Whereas judgment was rendered on the day of , one thousand nine hundred in an action in the Supreme Court of New York in and for the County of , between Andrew Atkins, plaintiff, and Benjamin Bristow, defendant, in favor of said plaintiff against the said defendant for the sum of Ten thousand dollars as appears to us by the judgment roll, filed in the office of the clerk of the Supreme Court, County of , on the day of , one thousand nine hundred and . And Whereas the said judgment was docketed in the office of the clerk of your county on the day of , in the year one thousand nine himdred and , and the simi of Ten thou- sand dollars is now actually due thereon; Therefore We Command You, that you satisfy the said judgment out of the personal property of the said judgment debtor within your county; or if sufficient personal property cannot be found, then out of the real property in your county belonging to such judgment debtor at the time when the said judg- ment was so docketed in the office of the clerk of your county, or at any time thereafter, in whose hands soever the same may be, and retmn this execution within sixty days after its receipt by you to the Clerk of the County of Witness Hon. Edward Evans, a Justice of said court, at the Court House in , the day of , one thousand nine hundred and Charles Cabtbr, Attorney for Plaintiff. This is endorsed: Sheriff of the County of Levy and collect as within directed Ten thousand dollars, with interest from the day of ,19 , besides your fees, &c. Charles Carter, Plaintiffs Attorney. (Address.) The attorney as an officer of the court has the power to sign the judge's name as above. Where a warrant of attachment has been levied, the 262 CODE PRACTICE IN NEW YORK execution must require satisfaction out of the property attached where jurisdiction over the person has not been obtained. In other cases the order is (a) attached per- sonalty; (b), unattached personalty; (c) attached realty; (d) unattached realty (§ 1370; Place v. Riley, 98 N. Y. 1) §§ 707, 708). Where judgment has been rendered against the president or treasurer as such, of an unincorpo- rated association of seven or more members, an execution will not lie against them individually. The execution issued on such a judgment must require the sheriff to satisfy it out of the property of the association or the joint or common property of the members (§ 1921). The sherijSf then proceeds to make the levy. This he must do within the life of the execution, i. e., within the sixty days. He cannot levy after the return day has passed (Smith v. Smith, 60 N. Y. 161 ; Hathaway v. How- ell, 64 N. Y. 97). He takes possession of the tangible personal property (see §§ 1410-1417), which is not exempt, usually removing the chattels to a warehouse, or allowing them to remain where they are, placing a keeper in charge. But a manual interference is not necessary to constitute a vahd levy. "An assertion of right by an ofl&cer in virtue of process in his possession in respect to goods within his power, is an actual taking possession of them," as where he went with defendant to the place where the property was and the property being in his view, told defendant that he had an execution aaid that he levied thereon and forbade its removal (Barker v. Binninger, 14 N. Y. 270, 278; see Wehle v. Conner, 83 N. Y. 231; Yenni V. McNamee, 45 N. Y. 614). A householder is entitled to certain exemptions such as specified household furniture and suppUes and the tools and implements of a mechanic (§ 1390). Necessary household furniture, professional instruments and library, not exceeding in value $250 are likewise exempt when ENTRY, ENFORCEMENT AND DISCHARGE OF JUDGMENTS 263 owned by such householder, or by one having a family for which he provides (§ 1391). But the judgment must not have been either: (a) for work performed by a domestic servant, or, (b) for the purchase price of the articles (§ 1391. For other exemptions see §§ 1392-1396; 1404 A). A lot of land with buildings thereon, not exceeding in value $1,000, owned and occupied as a residence by a householder having a family, may be made exempt by designating it as a "homestead," but not against judgments for debts contracted prior to its designation or for the purchase money thereof (§ 1397). Such designation is made in a conveyance or in a notice which is recorded in the coimty where the property is situated in the "Homestead Ex- emption Book" (§§ 1398-1401). If the value of the home- stead exceeds $1,000, the hen of a judgment attaches to the surplus (§§ 1402-1404). Both real and personal property are sold at public auction (§ 1384) and whenever practicable, in separate lots (§§ 1428, 1437), so that no more shall be disposed of than may be necessary to satisfy the judgment. In both cases, the purchaser gains "no better or stronger right than, the creditor would have got if he had been the pur- chaser" (Clute V. Emmerich, 99 N. Y. 342, 350; Frost V. Yonkers Savings Bank, 70 N. Y. 553). There is, however, considerable difference in the method pursued. First as to personalty. Here the sale is on six days' notice (§ 1429) and the purchaser takes title immediately. If a levy has been made upon property not owned by the judgment debtor but by a third party, the latter may deUver to the sheriff an affidavit stating that he makes claim thereto, specifying the property, its value, and the damages which he will suffer in case the levy is not re- leased. The sheriff may empanel a jury to try the vaUdity of the claim (§ 1418). The proceedings are then practically the same as where a third party makes claim 264 CODE PRACTICE IN NEW YORK to attached property, i. e., the jury ahnost invariably find in favor of the claimant. The sheriff may then re- linquish the levy unless the judgment creditor gives an undertaking; the sureties may be compelled to justify upon the allowance of the undertaking, the sheriff is released from liability; and if an action is thereafter brought, the sureties may be substituted as defendants in his place (§§ 1419-1427). Now with respect to real property which includes leaseholds, where there is an unexpired term remaining of at least five years (§ 1430) and real property held in trust where by reason of the invaUdity of the trust the estate vests in the beneficiary (§ 1431). If it consists of an equity of redemption in mortgaged real property, it cannot be sold under an execution issued upon a judgment recovered for the mortgage debt or any part thereof (§ 1432), and where such a judgment has been obtained, a direction must be indorsed upon the execution not to make such levy (§ 1433). The reason is that the law contemplates that mortgaged property shall be sold only in foreclosure proceedings and not in an action on the bond. The sheriff does not levy upon the real property as in the case of personalty since the docketing of the judgment here creates a lien. He posts notice forty-two days before the sale and publishes it in each of the preceding six weeks (§§ 1434, 1435). UnUke the purchaser of person- alty, the purchaser of realty or properly stated, the purchaser of the judgment debtor's interest in the realty at the time when the judgment was docketed (Trenton Banking Co. v. Duncan, 86 N. Y. 221), does not receive title immediately. The sheriff merely gives him a certif- icate and files another with the county clerk (§§ 1438, 1439). Within one year thereafter, the judgment debtor or his heir, devisee or grantee may redeem by paying to ENTRY, ENFORCEMENT AND DISCHARGE OP JUDGMENTS 265 the purchaser or the sheriff the sum paid with interest at the rate of 10% per annum and upon such redemption the sale becomes null and void (§§ 1446-1448). If after one year, the property has remained thus unredeemed, it may be redeemed by a judgment creditor or mortgagee within three months by paying the sum paid with inter- est at the rate of 7% per annum and executing a certif- icate of satisfaction of his judgment or mortgage (§§ 1449, 1450, 1463). Other judgment creditors or mortg gees may in turn redeem from the party redeeming, by re- imbursing to the latter the sum which he paid with in- terest, by executing a certificate of satisfaction of their own judgments or mortgages, and where the hen of the prior redeeming creditor is superior, by paying the sum specified in his certificate of satisfaction (§§ 1451-1453). A creditor who might have redeemed within the fifteen months may redeem although that time has elapsed, provided he does so within twenty-four hours after the last previous redemption (§ 1454). During this interval of fifteen months, the judgment debtor may remain in possession of the property (§ 1441) and may be restrained from committing waste (§§,1442, . 1443). At the expira- tion of the period allowed for redemption, the sheriff executes a deed to the purchaser or to the party redeeming as the case may be (§§ 1471, 1472). Not until then, is the title of the judgment debtor divested, although the purchaser's title will relate back to the time of the sale (§ 1440). Of course, if the judgment debtor, his heir, devisee or grantee has redeemed, no deed is necessary. The sale and the certificates thereof simply become null and void and the title remains where it was (§ 1448). Execution against Earnings, Income, etc. Where an execution has been issued and returned unsatisfied and "where any wages, debts, earnings, salary, income from trust funds or profits are due and owing to the judgment 266 CODE PRACTICE IN NEW YORK debtor or shall thereafter become due and owing to him, to the amount of twelve dollars or more per week" the judg- ment creditor may apply for an execution against them under § 1391. He need not give notice to the judgment debtor or to the judgment debtor's employer, but where he seeks to reach the income from a trust fund, notice should be given to the trustee who should be made a party to the proceeding (Matter of Siegel, 179 App. Div. 532; Pistchal V. Durant, 168 App. Div. 100, appeal dismissed, 216 N. Y. 644; King v. Irving, 103 App. Div. 420). In the case first quoted, it was said; "There is a distinction between an execution issued against a trust fund and one issued against salary or wages. The trustee may owe a duty to the creator of the trust and many trusts are created with a view to the protection of the cestui que trust. It is quite immaterial to an employer to whom he pays the salary or wages due to an employee if, as imder said section, the payment discharges the indebtedness, and since the em- ployee himself is not entitled to notice, it would seem to follow that the Legislature did not intend to require notice to the employer and that there is no necessity for such notice. The issuance of the execution creates no liability against the employer and the statute prescribes his duty with respect to the subsequent payment of wages or salary due to the judgment debtor." Thereupon an order is made directing that the execu- tion issue and upon presentation of such execution by the sheriff to the person from whom the earnings or other in- come are or may become due, it shall become a lien and a continuing levy thereon to a specified amount not exceed- ing ten per cent thereof vmtil the execution and its expenses are satisfied. Only one shall be satisfied at one time and where more are issued, they must be satisfied in the order in which they are presented to the person from whom the earnings or other income are due and owing. If the latter ENTEY, ENFORCEMENT AND DISCHARGE OF JUDGMENTS 267 fails to pay the sheriff in the prescribed airiount, he is liable to an action by the judgment creditor (§ 1391). The sheriff or other officer to whom the execution is delivered must at least once every six months account for and pay over all moneys collected (§ 1366). The following are forms of affidavit, order and execution: AFFIDAVIT Supreme Court of New York, County of New York. AijDREW Atkins, Plaintiff and Judgment Creditor, against Benjamin Bhistow, Defendant and Judgment Debtor. State of New York, County of New York. Andrew Atkins, being duly sworn, deposes, and says that he is the plaintiff and judgment creditor in the above entitled action. On the day of , 19 , a judgment was duly rendered in the Supreme Court, in and for the County of New York, in favor of the plaintiff and against the defendant above named for the sum of dollars, upon due personal service of the summons and complaint on the said defendant. The judgment roll was duly filed in the office of the clerk of the County of New York on said date. Thereafter and on the day of , 19 , an execution upon said judgment against the property of said Benjamin Bristow, the judgment debtor, was duly issued out of the Supreme Court to the Sheriff of the County of New York where the said judgment debtor then resided, and still resides, and said execution has been returned wholly unsatisfied and said judgment remains whoUy impaid. Deponent further states upon information and belief that the said judgment debtor is employed by one Nicholas Noyes of No. Street, in the Borough of Manhattan, in the City, County and State of New York, as a clerk, and is in the receipt of wages, earn- ings and salary amounting to Twelve dollars or more, to wit, the sum of Twenty dollars per week, payable weekly, that the same is now due and owing to the said judgment debtor from the said Nicholas Noyes 268 CODE PBACTICE IN NEW YORK and will hereafter become due and owing to said judgment debtor each and every week. The sources of deponent's information and the grounds of his belief are (set them forth). No previous application has been made for the order now requested and hereunto annexed. Sworn to before me, &c. Andrew Atkins. ORDER New York Supreme Court, County of New York. Andrew Atkins, Plaintiff and Judgment Creditor, Benjahiin Bristow, Defendant and Judgment Debtor. It appearing to my satisfaction by the annexed affidavit of Andrew Atkins, the above named plaintiff and judgment creditor, sworn to the day of , 19 , that a judgment was duly re- covered in the New York Supreme Court, New York County, on the day of ) 19 , in favor of the above named plaintiff and judgment creditor, Andrew Atkins, against the above named de- fendant and judgment debtor, Benjamin Bristow, for the sum of dollars, and that the said judgment was duly rendered upon the due personal service of the summons and complaint on the said defendant, and that the judgment r6ll thereof was duly filed in the office of the Clerk of the County of New York, on said date; that there- after and on the day of , 19 , an execution upon said judgment against the property of the said judgment debtor was duly issued out of the Supreme Court, New York County, to the Sheriff of the County of New York, where the said judgment debtor then resided and still resides, and that said execution has been returned wholly unsatisfied and the said judgment remains wholly unpaid; that there is due and owing to the defendant, Benjamin Bristow, from Nicholas Noyes of No. Street, in the Borough of Manhattan, City, County and State of New York, as his wages, earn- ings and salary, a sum amounting to more than twelve dollars per week, namely, the sum of Twenty Dollars per week, and that the said sum by reason of said employment will hereafter become due and owing to said judgment debtor, and that no previous application has been made for this order. ENTRY, ENFORCEMENT AND DISCHARGE OF JUDGMENTS 269 Now on motion of Charles Carter, Esq., attorney for said plaintiff, the judgment creditor herein, it is hereby Ordered, that an execution issue herein out of the New York Supreme Court, to the Sheriff of the County of New York against the wages, earnings and salary of the above named defendant, Benjamin Bristow, the judgment debtor herein, due and owing to him, and which shall hereafter become due and owing to him from the said Nicholas Noyes, pursuant to § 1391 of the Code of Civil Procedure, which execution when presented, by the Sheriff of New York County to the said Nicholas Noyes, shall become a lien and a continuing levy upon the wages, earnings and salary due and to become due to the said judgment debtor from the said Nicholas Noyes, to an amount not exceeding ten per- centum thereof and that the said levy shall become and be a continuing levy xmtil the said execution and expenses thereof shall become fuUy satisfied and paid, or until modified as provided by § 1391 of the Code of Civil Procedure and the amount of said levy and lien shall be the sum of two dollars per week. Dated the day of , 19 . Edwabd Evans, Justice of the Supreme Court of the State of New York. EXECUTION The People of the State of New York. To the Sheriff of the County of New York, Greetmg: Whereas judgment was duly rendered on the day of , 19 , in an action in the New York Supreme Court, New York County, between Andrew Atkins, plaintiff, and Benjamin Bristow, defendant, in favor of said plaintiff and against the said defendant for the sum of dollars, and Whereas on the day of , 19 , said judgment was duly docketed in the office of the Clerk of the County of New York, and Whereas on the day of , 19 , an execution upon said judgment against the property of the said Benjamin Bristow, judgment debtor, was duly issued out of the Supreme Court, New York County, to the Sheriff of the County of New York, in which said Benjamin Bristow then resided and now resides, and Whereas said execution has been returned by the Sheriff of the County of New York wholly unsatisfied, and said judgment remains wholly unpaid and the sum of dollars is now due thereon, and 270 • CODE PRACTICE IN NEW YORK Whereas an order was on the day of , 19 , duly" made by Hon. Edward Evans, one of the Justices of the New York Supreme Court, directing that an execution issue to the Sheriff of the County of New York against the wages, earnings and salary due and owing from Nicholas Noyes to the said Benjamin Bristow, the judg- ment debtor, and the wages, earnings, salary and income which may hereafter become due and owing from Nicholas Noyes to said Benjamin Bristow, the judgment debtor, pursuant to the provisions of § 1391 of the Code of Civil Procedure of the State of New York, and Whereas there is now actually due upon said judgment the sum of dollars, with interest from the day of , 19 . Now, Therefore, we command you that you satisfy said judgment out of the sums due or to grow due from the said Nicholas Noyes to the said Benjamin Bristow in the following manner, to wit: That is to say, that you collect from Nicholas Noyes ten percentum of the sum of Twenty Dollars to wit, Two dollars which the said judgment debtor Benjamin Bristow is entitled to receive from Nicholas Noyes each week, until said judgment, with the costs, interest and your fees thereon is entirely satisfied, unless this execution shall be subsequently modified by order of the court, and that you make a continuing levy on said sums according to the provisions of § 1391 of the Code of Civil Pro- cedure and that you return this execution to the Clerk of the New York Supreme Court, New York County, according to law with your return as to the manner of satisfaction. Witness Hon. Edward Evans, one of the Justices of the New York Supreme Court, at the County Court House in the Borough of Man- hattan, in the City of New York, on the day of , 19 . Charles Carter, Attorney for Plaintiff and Judgment Creditor. (Address.) (C) Execution Against the Person. Imprisonment for debt is still permitted in New York iu certain instances, namely, where the plaintiff had a right to the provisional remedy of an order of arrest. If the case is one "where the plaintiff's right to arrest the defendant depends upon the nature of the action," e. g., an action for a personal injury ENTRY, ENrOKCEMENT AND DISCHARGE OF JUDGMENTS 271 or an injury to property; on contract where there is an allegation of fraud, etc., as prescribed in § 549, it will not be necessary first to secure an order of arrest. But where plaintiff's right to arrest depends partly upon extrinsic facts as prescribed in § 550, i. e., in equity cases, when de- fendant is a non-resident, etc., an order of arrest must have been granted and executed (§ 1487) and the execution of an order of arrest is in every case a prerequisite to an execu- tion against the person of a woman (§ 1488; of. § 553). An execution against property must be returned before a body execution can be issued, except where the debtor is already in actual confinement (§ 1489). Neither form of execution can be issued while the other is outstanding and unre- turned except by leave of court (§ 1490) nor generally, where a judgment debtor is in custody under a body exe- cution, can another execution be issued in the same action (§ 1491-1493). The following is an execution against the person (§§ 1366, 1372) : The People of the State of New York. To the Sheriff of the County of New York, Greetmg: Whereas judgment was rendered on the day of , one thousand nine hundred and , in an action hi the Supreme Court of New York, in and for the County of New York between Andrew Atkins, plaintiff, and Benjamin Bristow, defendaiit, in favor of the said plaintiff, against the said defendant for the sum of Ten thousand dollars as appears to us by the judgment roll, filed in the office of the Clerk of the Supreme Court, County of New York, and Whereas the said judgment was docketed in the office of the clerk of your County on the day of , 19 , in the year one thousand nine hundred , and Whereas an execution against the property of the judgment debtor has been duly issued to the Sheriff of the County of New York where the said judgment debtor resides and has been returned unsatisfied and the sum of Ten thousand dollars is now actually due thereon, Therefore We Command you, that you arrest the judgment debtor and commit him to the jail in your County until he pay the said judgment or be discharged according to law, and tl^at you return this execution within sixty days after its 272 CODE PRACTICE IN NEW YORK receipt by you to the Clerk of the Supreme Court of New York in and for the County of New York. Witness, Hon. Edward Evans, one of the justices of the Supreme Court at the Court House in the Borough of Manhattan, New York City, the day of , one thousand nine hundred and Chakles Carter, Attorney for Plaintiff. It should be kept in mind that the judgment creditor must display considerable diligence. In common law actions, he must enter judgment within ten days after it is within his power to do so and issue a body execution within ten days after the return of an execution against the prop- erty. Nor must he neglect, either at common law or in equity, to issue it within three months after the entry of judgment (§ 572; Cf. Steamship Richmond Hill Co. v. Seager, 31 App. Div. 288). The time limit of imprisonment is three months under an execution for less than $500 and six months if for $500 or over (§ 111). The judgment debtor may be admitted to the liberties of the jail upon giving an approved under- taking (§§ 149-151 ; see supra, p. 122, as to orders of arrest). At any time after he has remained in custody for thirty days, the judgment creditor may serve on the sheriff a written notice to discharge him. Thereafter another body execution cannot be issued upon the same judgment, though the other remedies for its collection may be pur- sued (§1494). But a new execution carmot be enforced against an inter- est in real property, purchased in good faith from the debtor after the judgment upon which it was issued or which was sold under an execution issued upon another judgment (§ 1495). (D) Execution for the Delivery of Real Property or Chat- tels. The requisities of these two executions are prescribed ENTRY, ENFORCEMENT AND DISCHARGE OF JUDGMENTS 273 by § 137^. They must particularly describe the property, designate the party to whom the judgment awards posses- sion and require the sheriff to deliver possession. If a sum of money is awarded by the same judgment, it may be collected by the same or by a separate execution (§ 1373). If for the deUvery of real property the execution must be issued to the county where the property or a part is situ- ated; if for the deUvery of a chattel, it may be issued to any county where the chattel is found or where the judgment roll is filed (§1365) 4. Supplementary Proceedings. These remedies are special proceedings (§ 2433). Their object is to discover property belonging to the judgment debtor and to compel its application to the judgment. He or a third party is required to attend and be examined and if property is discovered it may be taken over by a receiver. The proceedings are purely statutory and no court has in- herent jurisdiction respecting them (Matter of Ward v. Stoddard, 144 App .Div. 143). The Code provides for three distinct remedies (§ 2432). First, an order or warrant issued against the judgment debtor after return of an execution. It may be obtained at any time within ten years after the return of the exe- cution, either wholly or partly unsatisfied (§ 2435), and is granted once practically as a miatter of course. Second, an order or warrant issued against the judgment debtor after the issuing and before the return of an execution (§ 2432, subd. 2) . This is a rather unusual proceeding. It is in aid of the execution, its object being to discover property which can be taken thereimder. The judgment creditor must show that the debtor has property which he un- justly refuses to apply to the satisfaction of the judgment (§ 2436). Facts and circumstances must of course be set forth (Matter of First National Bank, 52 App. Div. 601), 274 CODE PRACTICE IN NEW YORK since it is not sufficient merely to follow the language of the statute (Matter of Hastings, 56 Misc. 45). Usually in the first and second classes, an order is obtained. A warrant may, however, be issued upon proof that there is danger that the judgment debtor will leave the state or conceal himself and that he has property which he unjustly refuses to apply (§§ 2437, 2438). Third, a third party order is- sued either before or after the return of the execution (§ 2432, subd. 3). The judgment creditor must show that the third party whose examination is sought has personal property of the judgment debtor exceeding ten dollars in value or is indebted to him in an amount exceeding ten dollars (§ 2441). This proceeding may be pursued either alone .or simultaneously with the other two (§ 2432). Generally supplementary proceedings are instituted be- fore a judge of the court out of which the execution issued or a county judge of the county to which it was issued. But where the judgment was recovered in a Municipal Court of New York City, they are brought before a justice of the City Court (§ 2434). That is of course, if the proceedings are instituted in the Borough of Manhattan (Matter of Street, 181 App. Div. 869). The practice here is some- what pecuUar. Plaintiff files a transcript with the county clerk thereby making it a judgment of the Supreme Court (Mu. Ct. Code, § 131, subd. 3). Thereupon the execution issues on this judgment out of the Supreme Court, it is returned to the county clerk and supplementary proceed- ings as aheady stated, are had in the City Court. Thus the action is in three courts. To entitle a judgment creditor to maintain supple- mentary proceedings, so § 2458 provides, the judgment must not be less than twenty-five dollars and must have been rendered upon the debtor's appearance or upon personal or substituted service (not by pubhcation). Fur- thermore the execution must have been issued to the sheriff ENTRY, ENFORCEMENT AND DISCHARGE OF JUDGMENTS 275 of the county where the judgment debtor has a place for the regxilar transaction of business in person, or the county where he resides (Matter of Supplementary Proceedings of De Angelli v. Dixey, 101 Misc. 606; Matter of Rowland, 21 App. Div. 172, affimd. 154 N. Y. 777) or if he is a non- resident, to the county where the judgment roU is filed vmless execution was not issued out of the court in which the judgment was rendered and in that case to the county where the transcript was filed (§ 2458). The order re- quires the person to attend and be examined either before the judge to whom it is returnable or before a referee (§ 2442), though the latter is very infrequent in the first department. If he is a resident of the state or has an office therein for the regular transaction of business in person he cannot be compelled to attend without the county of his residence or business (§ 2459) . An injunction may be granted restraining any transfer, disposition of or interfer- ence with the judgment debtor's property. This is usually contained in the order although it maybe separate (| 2450) . The following form of affidavit after return of execution win serve as an illustration. If made by a person other than the judgment creditor himself it must show authority to act for him "so that the application will show upon its face that the proceeding was authorized by the owner of the judgment, unless the affidavit is made by the attorney for a party, when authority will be presimied." Hence an affidavit made by one who merely sets forth that he is an attorney connected with the office of plaintiff's attorney is insufficient (Title Gviarantee & Trust Co. v. Brown, 136 App. Div. 843). 276 CODE PRACTICE IN NEW YORK AFFIDAVIT Supreme Court of New York, County of New York. In the Matter of Supplementary Proceedings ; Andrew Atkins, Judgment Creditor, against Benjamin Bhistow, Judgment Debtor. State of New York, County of New York. Charles Carter, being duly sworn, says that he is the attorney for Andrew Atkins, the above named judgment creditor in this proceeding: that in an action in the Supreme Court of New York in and for the County of New York wherein Andrew Atkins was plaintiff and Ben- jamin Bristow was defendant, a judgment was duly recovered against said Benjamin Bristow, the judgment debtor herein, on the day of , 19 , for the sum of Five thousand dollars, damages and costs, after due personal service of the summons therein upon said judgment debtor (or if upon defendant's appearance or upon sub- stituted service upon him, so state) ; that said judgment was for a sum not less than twenty-five dollars; that the judgment roll in said action was duly filed in the office of the clerk of the Supreme Court in and for the County of New York on the day of , 19 (or if the proceedings are in a county other than that in which the judgment roll was filed, insert "that a transcript of said judgment was duly filed and said judgment was duly docketed in the oflSce of the Clerk of the Coimty of * , on the day of , 19 "), that thereafter an execution upon said judgment against the property of the said judgment debtor was on the day of , 19 , duly issued out of the Supreme Court of New York in and for the County of New York, which is a court of record to the Sheriff of the County of New York where said judgment debtor then resided and at the time of the commencement of this special proceeding still resides (or "then had and still has a place for the regular transaction of business in person") ; that the said sheriff has re- ENTRY, ENFORCEMENT AND DISCHARGE OF JUDGMENTS 277 turned said execution wholly unsatisfied, and that the said judgment remains wholly impaid and that no previous application has been made for this order. Sworn to before me this, &c. Chahles Carter. ORDER Supreme Court of New York, County of New York. In the Matter of Supplementary Proceedings; Andrew Atkins, Judgment Creditor, against Benjamin Bristow, Judgment Debtor. It appearing to my satisfaction, by the above (or "annexed") affi- davit of Charles Carter, the attorney for the judgment creditor in this proceeding, that judgment has been duly recovered in an action in the Supreme Court of New York, in and for the County of New York wherein Andrew Atkins was plaintiff and Benjamin Bristow was de- fendant against the above named Benjamin Bristow, the judgment debtor herein, on the day of , 19 , for the sum of Five thousand dollars that said judgment was rendered upon the personal service of the summons therein upon the said judgment debtor; (or if upon defendant's appearance or upon substituted service, so state) that the said judgment was for a sum of not less than twenty- five dollars; that the judgment roll was duly filed in the office of the clerk of the Supreme Court in and for the County of New York on the day of , 19 ; (or "that a transcript of said judgment was duly filed and said judgment was duly docketed in the office of the clerk of the county of on the day of , 19 ") ; that thereafter an execution upon said judg- ment against the property of the sajd judgment debtor was on the day of , 19 , duly issued out of the Supreme Court pf New York in and for the County of New York which is a court of record to the sheriff of the County of New York where said judgment debtor then resided and at the time of the commencement of this special proceeding still resides (or "then had and still has a place for the regular transaction of business in person"), and that said execution 278 CODE PEACTICE IN NEW YORK has been returned wholly unsatisfied and that said judgment remains wholly unpaid, and that no previous application has been made for this order; I do hereby order and require Benjamin Bristow, the judgment debtor above named, to appear before me or the Justice sitting at Special Term Part II of this Court at the County Court House in the Borough of Manhattan in the City of New York on the day of ,19 , at 10.30 o'clock in the forenoon and on such fur- ther days as the Court or Referee duly appointed shall name to make discovery on oath concerning his property. And the said Benjamin Bristow, the judgment debtor, is hereby forbidden to transfer or make any other disposition of the property belonging to him not exempt by law from execution or in any manner to interfere therewith until fur- ther order in the premises. Dated the day of , 19 . Edward Evans, Justice of the Supreme Court of the State of New York. This being a judge's order, it is served by exhibiting the original and delivering a copy thereof and of the affidavit (§ 2452). Service should not be made by the judgment creditor (Matter of Dawes, 108 App. Div. 174). If the party appears on the return day, he is first sworn (§ 2444) and the examination then proceeds (for scope of examination see Bostwick's Lawyers' Manual, 2d ed., pp. 42 et seq.). He is not excused from answering on the ground that his examination will tend to convict him of a fraud or prove that he has been privy to a conveyance or transfer of property or that he or another claims to be enti- tled to the property or to be discharged from a debt. But an answer cannot be used against him in a criminal action or proceeding (§ 2460). Questions and answers are taken down in longhand or by a stenographer. The latter pro- cedure of course necessitates an adjournment to permit of transcription and it is somewhat doubtful whether the attorney of the judgment creditor may insist upon an ad- journment for this purpose only, if the debtor takes the position that the proceedings should be closed in one ENTBY, ENFORCEMENT AND DISCHARGE OF JUDGMENTS 279 session. Practically, however, such, objection can rarely accomplish its purpose since there is usually some book or docimient that the party can be required to produce and an adjournment may be asked for on this ground (see § 2444). Usually, however, the judgment debtor wiU consent. He should sign a stipulation to that effect which should be initialed by the judge under the words "so ordered." Upon the completion of the examination,* the judgment debtor or witness signs his written testimony and is sworn thereto by the judge. The judgment creditor's attorney may then move for the appointment of a receiver. If he does so at the close of the examination, no notice need be given to the debtor. Otherwise notice is required (§ 2464). And it must also be given to any other judgment creditor who has brought a judgment creditor's action or supple- mentary proceeding (§ 2465) . If a receiver has already been appointed, the judge will not appoint another but will make an order extending the receivership to the pro- ceeding before him (§ 2466). Section 2446 provides that at any time before the ap- pointment of a receiver or the extension of a receivership to the present proceedings, the judge upon proof that a person or corporation is indebted to the judgment debtor, may make an order permitting payment to the sheriff. It must be emphasized that this order is permissive merely. The third party is not compelled to obey; if he does pay, he wUl be discharged from liability except as against a trans- feree from the judgment debtor in good faith and for a valuable consideration of whose rights the party paying had actual or constructive notice at the time of payment (Kennedy v. Carrick, 18 Misc. 38). * Of course sometimes property is discovered, but attorneys -who have conducted many supplementary proceedings are well fortified against optimism. 280 CODE PKACTICE IN NEW YORK Suppose it appears from the examination, either (1), that the judgment debtor has in his possession or under his control money or other personal property belonging to him which is subject to levy and sale, or (2), that one or more articles of personal property capable of delivery, are in the possession of or under the control of another who does not substantially dispute the judgment debtor's right to possession? Here an order may be made directing payment or deUvery to the sheriff or to the receiver if one has been appointed. This order unlike that prescribed by § 2446 is mandatory. It should also be noted that where the order is directed to a third party first, the prop- erty must be "capable of delivery." Hence the pro- vision is inapplicable to such property as bank deposits since "where the payment of money is directed it can only be required from a judgment debtor and not a third party" (Kantor Brothers v. Wile, 93 Misc. 438, 441). Second, it must appear that the judgment debtor's right to the property is not substantially disputed since the judge has no power to determine contested rights of possession in this summary manner (Humboldt Explora- tion Co. V. Fritsch, 150 App. Div. 90). The proper pro- cedure is an action by the receiver. The dispute, however, must be apparently substantial for if it arises on conceded facts and is confined to questions of law which have been well settled, the judge is not deprived of his power to make the order (Matter of Flynn, 157 App. Div. 241). The property of the judgment debtor vests in the re- ceiver when the order of appointment is filed (§ 2468), and his title generally extends back by relation to the time of the commencement of the supplementary pro- ceedings, thus cutting off intervening rights. But this will not affect the title of a purchaser in good faith with- out notice and for a valuable consideration or the pay- ment of a debt in good faith and without notice (§ 2469; ENTRY, ENFORCEMENT AND DISCHARGE OF JUDGMENTS 281 Matter of Clover, 154 N. Y. 443), when such purchase or payment occurred prior to the appointment of the receiver and of course after the institution of the pro- ceeding (Fitzpatrick v. Moses, 34 App. Div. 242). A receiver does not take title to property subsequently acquired by the debtor (Dubois v. Cassidy, 75 N. Y. 298; Matter of Walker, 157 App. Div. 609), nor can exempt property be taken or property held in trust where the trust has been created by one other than the judgment debtor; or the judgment debtor's earnings for personal services rendered within sixty days before the institution of the proceeding when necessary for the use of his family (§ 2463). Originally the income of a cestui qui trust beyond what was necessary for his support must be reached by a creditor's suit in equity (Tolles v. Wood, 99 N. Y. 616; Williams v. Thorn, 70 N. Y. 270) but under § 1391 an execution which is a continuing levy may issue against 10% of such income and against wages or earnings if the amount is twelve doUars or more per week (see supra, p. 265 et seq). A receiver being an officer of the court is at all times subject to its control (§ 2471). He has authority to take such legal proceedings as may be necessary to coUect the debtor's assets (Rule LXXVII). But before bringing any action, he must obtain leave of court. When applying, he must file the written request of the judgment creditor or else give bond for the costs (Rule LXXVIII). If no property has been discovered in the supplementary- proceedings, the judgment creditor may afterwards de- sire to try again. On the first occasion it has been said, the order is granted almost invariably. But he "is not permitted to harass his debtor by successive examinations in supplementary proceedings. He is entitled to examine the defendant as fully as may be once. After that, it becomes a question of sound discretion. It is weU settled 282 CODE PBACTICH IN NEW YORK that a second order will not be granted as a matter of course" (Canavan v. McAndrew, 20 Hun, 46, 47). When applying for a second examination, the judgment cred- itor should show the acquisition of property by the debtor subsequent to the prior proceedings. A formal allegation to that effect will be insufficient, or a statement on in- formation and belief without disclosing the groimds therefor (McGuire v. Schroeder, 31 Misc. 179; Schemer- horn V. Owens, 29 Misc. 674). 5. Judgment Creditor's Actions. A judgment creditor's action is defined as one brought as prescribed in Article I, Title 4, Ch. 15, of the Code "or any other action brought by a judgment creditor to aid the collection of a judgment for a sum of money, or directing the payment of a sum of money" (§ 3343, subd. 14). As the codifiers have pointed out in a note, it was not intended to supersede the ancient jurisdiction of the court of chancery to aid judgment creditors which ex- tended to many cases not embraced in these provisions. Consequently, no attempt has been made to define when actions of that character may be maintained or to reg- ulate the proceedings peculiar to them. Section 1871 provides that when an execution has been issued and returned unsatisfied, the judgment creditor may bring 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 prop- erty due to him or held in trust for him; to prevent the transfer thereof, or the payment or delivery to him or to any other person and to procure satisfaction of the plaintiff 's demand, and by § 1873, the final judgment must direct and provide for satisfaction out of any property so discovered whether it might or might not have been ENTRY, ENFORCEMENT AND DISCHARGE OP JUDGMENTS 283 originally taken under an execution. A temporary in- junction may be issued, restraining transfer, payment or delivery (§ 1876), discovery may be compelled (§ 1878), and a receiver appointed (§ 1877). The sections are declared not applicable to cases where the judgment debtor is a domestic corporation nor do they authorize interference mth exempt property or property held in trust for the judgment debtor where the trust has been created or the fund has proceeded from another, or with the judgment debtor's earnings for personal services rendered within sixty days, where they are necessary for the use of a family wholly or partly supported by his labor (§ 1879). Now to understand these sections, it should be kept in mind, as already stated, that they do not deprive equity of the power which it always had to assist the creditor. Thus it has been said that "as proceedings of this char- acter are now regulated by our law and practice, they are generally of two kinds. The first is where it is alleged that the debtor has equitable assets which cannot be reached by an execution. In such case an execution must be issued upon the judgment for the purpose of making the amount from the property of the judgment debtor Uable to execution, if such may be found, and returned unsat- isfied if none can be found. This is a necessary prelim- inary. All the cases agree that no such bill can be sus- tained until the remedy at law has been exhausted by the return of an execution unsatisfied. The second class of cases is based upon the allegation that the debtor possesses property which, in its nature, is Uable to seizure and sale upon execution, but that by fraudulent incumbrances upon the same, the execution cannot be enforced. The aid of the Court of Chancery is therefore invoked to re- move the incumbrances that the process of law may be effectually enforced. In such case, it is indispensable that 284 CODE PRACTICE IN NEW YORK the execution should have been issued but not that it should have been returned. Its return would be fatal to the rehef sought" (Mechanics' & Traders' Bank v. Dakin, 51 N. Y. 519, 522; People ex rel. Cauffman v. VanBuren, 136N.Y. 252). Thus a judgment creditor can, in such an action, reach an interest in a policy of insurance represented by pre- miums in excess of the $500 exempted by statute (Stokes V. Amerman, 121 N. Y. 337). So he, may reach a patent right (Gillette v. Bate, 86 N. Y. 87) and the interest of the judgment debtor in a contract for the purchase of land by him (§§ 1874, 1875). Now in the second class of cases, namely, where equi- table aid is invoked, to remove an obstruction to the execution of legal process, the execution it has been said, should be issued but it need not have been returned. Thus, take the case where a judgment debtor has fraud- ulently transferred his land. " The property of a debtor which has been transferred by him in fraud of creditors, still remains as to them, the debtor's property and the hen of the cr6ditor's judgment attaches to the real es- tate. The judgment creditor may enforce his judgment by a sale of the land under execution" (i. e., he may treat the transfer as void) "or he may bring an action to re- move the obstruction caused by the debtor's fraudulent act and proceed to enforce his judgment by a sale of the land unembarrassed by the cloud of the transfer." In other words, the creditor may summarily sell the land upon execution, or proceeding more cautiously, invoke the aid of a court of equity in compelling the satisfaction of the debt (Hillyer v. LeRoy, 179 N. Y. 369, 375). There is another class of cases, namely, where the creditor has obtained a Uen as by attachment. Here an equitable action analogous to a creditor's suit will be allowed in aid of the attachment, before the recovery of ENTRY, ENFORCEMENT AND DISCHARGE OF JUDGMENTS 285 judgment where there has been a fraudulent transfer, and other facts exist showing the need of intervention, such as the danger of the removal of the property from the jurisdiction (People ex rel. Cauffman v. Van Buren, 136 N. Y. 252, cf. §677). Indeed, it has been held that a creditor who has been prevented from obtaining a per- sonal judgment because the debtor after executing an assignment for the benefit of creditors of property located in the state, removed to another state, may maintain an action to set aside the assignment (Patchen v. Rofkar, 52App.Div. 367). By § 268 of the Real Property Law, an executor, ad- ministrator, receiver, assignee or other trustee, may for the benefit of creditors, or of others interested in real property held in trust, disaffirm, treat as void and resist any act done or transfer or agreement made in fraud of the rights of any creditor. Furthermore, a creditor of a deceased insolvent debtor whose demand exceeds $100, possesses a like power for the benefit of creditors or others interested and may maintain an action to set aside such act, conveyance, transfer or agreement without first having obtained judgment. A similar provision is con- tained in § 19 of the Personal Property Law. "The rem- edy given by the statute," it has been said, "is not a new one but is the extension of an old and familiar remedy by reheving the creditor of the necessity of recovering judgment and issuing execution when that would be impossible owing to the death of the debtor" (Shoe & Leather Bank v. Baker, 148 N. Y. 581, 584; for actions brought thereunder see Johnston v. Gundberg, 113 App. Div. 228; RosseUe v. Klein, 42 App. Div. 316). The remedies by way of creditor's bill therefore as at present existing, have been summarized as follows: "First, the right of action given by § 1871 upon return of execution unsatisfied. Second, the remedy known to 286 CODE PRACTICE IN NEW YORK practice in chancery in aid of an execution outstanding in order to remove difficulties preventing satisfaction. Third, the remedy in equity not superseded by the Code, which may be invoked where no judgment has been ob- tained and hence no execution has been issued. Fourth, the remedy given by statute to assignees, receivers, etc., which specifically dispenses with judgment and execution. Fifth, an action analogous to a creditor's bill may be maintained under §677 and subd. 2, §655" (Fiero on Special Actions, p. 862). 6. Suit on the Judgment. "No rule of law is better settled than that a judgment for a sum certain in money is a debt of record and as such may be made the foundation of a new action" (Harris V. Steiner, 30 Misc. 624, 625). This is still permitted though subject to the limitations prescribed by § 1913 where the judgment was in a court of record. As this section reads, either one of three conditions must exist. (1), Ten years have elapsed since docketing judgment, or (2), the judgment was rendered on defendant's default and the summons was not personally served, or (3), the court in which the action is brought grants leave to bring it. In other words, if the action is brought within ten years and the summons was personally served, plaintiff must apply for and obtain leave to bring it (cf. Peace v. Wilson, 186 N. Y. 403). The object is to prevent a judg- ment creditor from multiplying suits and accumulating costs unnecessarily. Notice of the appUcation must be given either personally or as the court may direct (§ 1913; for actions upon judgments in Justices' courts see § 3154). But § 1913 only appUes to an action "between the original parties to the judgment" and hence an assignee of a judgment is not required to obtain leave (McGrath v. Maxwell, 17 App. Div. 246). ENTRY, ENFORCEMENT AND DISCHARGE OF JUDGMENTS 287 7. Discharge by Satisfaction. Upon the return of an execution, the clerk makes an entry in the docket showing that the judgment was wholly or partly satisfied (§ 1264), or that there was a return unsatisfied (§ 1265). Where the judgment is paid or otherwise satisfied by act of the parties, the judgment creditor or his executor, administrator, assignee or attorney in fact, executes a satisfaction piece which is filed with the clerk who there- upon marks the docket .accordingly. A satisfaction piece may be executed by the attorney of record of the party within two years after the entry of judgment, though where his authority has been revoked, the satisfaction is not conclusive against one entitled to enforce the judgment in respect to a person having actual notice before a pay- ment or before a purchase of the property bound thereby (§ 1260). The following is a satisfaction piece: Supreme Court of New York, County of New York. ( Andrew Atkins, Plaintiff, against Benjamin Bristow, Defendant. State of New York, County of New York. Satisfaction is hereby acknowledged of a judgment entered in the above entitled action in favor of Andrew Atkins, plaintiff, and against Benjamin Bristow, defendant, for the sum of ten thousand dollars which judgment was entered in the Judgment Book of the Clerk of the County of New York on the day of , nineteen hundred and Andrew Atkins, Plaintiff. (or "Charles Carter, (Acknowledgment.) "Attorney for Plaintiff.") 288 CODE PRACTICE IN NEW YORK The person entitled to enforce the judgment must exe- cute and acknowledge a satisfaction piece if it is presented to him along with the sum due and the fees for taking the acknowledgment, by the judgment debtor or by one in- terested in property bound by the judgment (§ 1261) and one who has executed a written assignment without ac- knowledging it, must so acknowledge at the request of an assignee or of the judgment debtor (§ 1262). Cases sometimes arise where it is impossible to secure a satisfaction piece. For instance, the owner of property under a contract to sell may discover that he is unable to give an unincumbered title owing to an outstanding judg- ment. The judgment creditor cannot be found or he may have died and in the latter event, no executor or adminis- trator may have been appointed. Nor can the attorney of record be found, or if found, he may be without authority owing to the lapse of the two years. In 1911, subd. 4 was added to § 1260 to meet such a situation. It permits the judgment debtor, his legal representatives or any other person, to deposit with the clerk, the amoimt of the judgment remaining unsatisfied, with interest, and a sum equal to one per cent of such unsatisfied amoimt. There must also be delivered a sheriff's certificate that no exe- cution is in his hands. Thereupon the clerk enters upon the docket the words "satisfied and discharged by deposit. " 8. Vacating, Setting Aside and Correcting a Judgment. (A) Vacating and Setting Aside. By § 724 it is provided that the court may "in its discretion and upon such terms as justice requires, at any time within one year after notice thereof, relieve a party from a judgment, order or other proceeding, taken against him through his mistake, in- advertence, surprise or excusable neglect; and may supply an omission in any proceeding." It has been said, how- ENTRY, ENFORCEMENT AND DISCHARGE OF JUDGMENTS 289 \ ever, that the whole power of the court in this respect "is not limited by § 724 but in the exercise of its control over its own judgments, it may open them upon the application of any one for sufficient reason in the furtherance of jus- tice. Its power to do so does not depend upon any statute but is inherent" (Ladd v. Stevenson, 112 N. Y. 325, 332; Rilay v. Ryan, 45 Misc. 151). Thus a default may be opened and the judgment set aside upon proper cause shown,* e. g., where an unopposed motion to place a cause on the short cause calender had been granted but no copy of the order had been served and there was a failure to appear when the case came up on the day calendar (Donegan & Swift v. Patterson, 125 App. Div.750). But "the coiu-t whUe having discretion to excuse de- faults does not have unlimited discretion. ' ' The j udgment must have been taken by " mistake, inedvertence, surprise or excusable neglect " (Prager v. Beardsley, 133 App. Diy. 592, 595). Section 724 "does not by any means permit or sanction the indiscriminate opening of defaults" (Warth v. Moore B. S. & 0. Co., 125 App. Div. 211, 212; Ryan v. Cen- tral Delivery Co., Inc., 93 Misc. 444). For instance, though a case on the day calendar may be passed for the day when counsel is actually engaged in the trial of a cause, this does not authorize continued applications for postponement on that ground (O'Brien v. Kuntz, 84 N. Y. Supp. 535). On the other hand, though the fact that the exercise of the power is discretionary will ordinarily permit the court to impose terms on granting the appUcation, the imposi- tion of terms may constitute an abuse where the applicant has a clear right to the relief. This right cannot then be clogged with conditions (Donegan & Swift v. Patterson, 125 App. Div. 720; Yates v. Guthrie, 119 N. Y. 420; Auto * For opening defaults after service by publication, see supra, p. 68. 290 CODE PRACTICE IN NEW YOKK Lighter Co. v. Wicks, Hughes & Co., 114 App. Div. 110). Section 1282 provides that a motion to set aside a final judgment for irregularity must be noticed within one year after the filing of the judgment roll. "The irregularities referred to are necessarily those arising in practice and con- sist of some step or proceeding taken in the prosecution or defense of an action which is without authority of law, or contrary to some rule of practice" (Com Exchange Bank V. Blye, 119 N. Y. 414, 418); e. g., where in an action against partners upon a partnership obligation, separate jtidgments are entered against each of the defendants in- stead of a joint judgment against all (Judd Linseed & Sperm Oil Co., v. Hubbell, 76 N. Y. 543; and see O'Connor V. Healy, 171 App. Div. 604). Apparently the term is used in contradistinction to jurisdictional defects which courts have no power to authorize or approve. A final judgment may be set aside "for error in fact not arising upon the trial," e. g., a judgment of separation in favor of defendant where it appears that plaintiff was an infant and no guardian ad Htem had been appointed (Byrnes v. Byrnes, 109 App. Div. 535). The motion may be made by the party against whom the judgment is ren- dered or if an execution has not been issued and the judg- ment has not been wholly or partly satisfied or enforced by the party in whose favor it is rendered, their heirs or personal representatives or in certain oases, by interested third persons (§§ 1283-1286). Notice of motion must be given or an order to show cause obtained (§§ 1287-1289) retiUTiable on a day within two years from the filing of the judgment roll (§ 1290) except in cases of disability (§ 1291). Where the judgment is set aside, the court may direct and enforce a restitution (§ 1292). It should be kept in mind that an "application to set aside a judgment on the ground of fraud or collusion, or ENTEY, ENFOKCEMENT AND DISCHARGE OF JUDGMENTS 291 as being Void for any reason, or because the court has not acquired jurisdiction of the person against whom it is rendered, is, of comse, not governed by" the time limi- tations prescribed in §§ 1282 and 1290 (Matter of Account- ings, Exrs. of Tilden, 98 N. Y. 434, 444). Such an ap- plication is addressed to the inherent power of the court (Furman v. Furman, 153 N. Y. 309; Julian v. Woolsey, 87 Hun, 326; affd. 147 N. Y. 722; People v. Santa Clara Lumber Co., 60 Misc. 150). (B) Correcting the Judgment. The power of the court likewise extends to the correction of a judgment after its entry.* "Courts have. always had control over their own judgments and ia the absence of some express prohibition limiting the power, may deal with them so that what is right and just may be done (Cooper v. Cooper, 51 App' Div. 595, 597; see § 723). Thus a clerical mistake may be corrected on motion by striking out an incorrect and in- serting a correct description of the premises (Morrison V. Met. El. Ry. Co., 60 App. Div. 180). So a judgment may be modified by striking out the words "on the merits " when it appears they were erroneously inserted (Clark > V. ScovUl, 198 N. Y. 279) and by striking out a provision for the recovery of damages (Gennert v. Butterick Pub. Co., Ltd., 133 App. Div. 86). But the rule has its Umit- ations.' Courts- have inherent power to correct their rec- ords "where the correction relates to mistakes or errors, which may be termed clerical in their nature, or where it is made in order to conform the record with the truth. They should not, after the final judgment by amendment, change a ruling upon the law or alter the decision upon the merits, for by so doing, substantial rights of the ad- verse party would be really affected. But where the *For effect of variance between allegations and proof see Ch. VIII, subd. 11. 292 CODE PRACTICE IN NEW YORK amendment is in the line of the correction of a mistake or an admission . . . the power to make it is a general and incidental one" (Bohlen v. Met. El. Ry. Co. 121 N. Y. 546, 550). In other words, a motion to amend is not the proper proeedure for the pm-pose of having the court alter its decision. The proper step is to appeal. Thus a judgment cannot be amended by reducrag the amount on the ground that it is without warrant in the testimony (Heath v. N. Y. Building Loan Banknig Co., 146 N. Y. 260). Nor can a provision be inserted relative to the dis- tribtrtion of certain dividends accruing after the com>- mencement of the action, held by one not a party, and as to which the complaint had asked no such relief (Chester V. Buffalo Car Mfg. Co., 183 N. Y. 425). CHAPTER XIV APPEALS 1. Apjjeals to the Appellate Division. 2. Appeals to the Court of Appeals. 1. Appeals to the Appellate Division. The Appellate Division of the Supreme Court is the intermediate and in some tastaaces, the final court of appeal. When the action was originally tried in the City Court or Municipal Court of N-ew York City, the appeal in the first and second departments, is heard by a branch known as the Appellate Term held by three judges and from their decision a further appeal may be taken by per- mission to the Appellate Division (§§ 1340, 1344). An appeal may be taken from a final (§ 1346), or inter- locutory judgment of the Supreme Court (§ 1349), or in certain cases, from an order, e. g., where it involves some part of the merits, affects a substantial right, or in effect determines the action (§ 1347). If an appeal is taken from an interlocutory judgment which is affirmed by the Appellate Division and thereafter an appeal from a final jud^nent is taken, the second appeal brings up for review only the proceedings on whidh Hae final judgment was taken. In other words, the interlocutory judgment cannot be reviewed twice. But as will be seen later, if an appeal is taken from the decision of the Appellate Division with re- spect to the final judgment, the Court of Appeals may con- sider both the interlocutory and final judgments (§ 1350). But it is unnecessary to appeal separately from an inter- locutory judgment or intermediate order since they may be reviewed on the appeal from the final judgment (§ 1316) . 293 294 CODE PRACTICE IN NEW YORK Now as to the procedure to be followed: An appeal is the only method of reviewing the action of the lower court, since the writ of error has been abohshed (§ 1293). The party appeaUng is designated as the "appellant" and the adverse party as the "respondent," as will be noted in the titles of the following forms. Originally the ap- pellant was known as the "plaintiff in error" which led to a reversal of position when the defendant appealed, but now the only change is in the name of the court (§ 1295) . It has already been said that after the verdict is ren- dered, the losing party moves for a new trial on the grounds stated in § 999. Usually this is done at the trial but a motion may be made at the same term. This motion is made upon the judge's minutes and is to give him an opportunity to correct any errors which either he or the jury may have made. There is, however, a motion some- times made on grounds outside the record (§ 1002), for instance, newly discovered evidence or misconduct or fraud practiced upon the court and jury (Helwig v. Sec- ond Ave. R. Co., 9 Misc. 61; Keister v. Rankin, 34 App. Div. 288; Patrick v. Victor Knitting Mills Co., 37 App. Div. 7; Corley v. N. Y. & H. R. Co., 12 App. Div. 409). This motion is not made before the trial court but at special term (§ 1002). After the motion for a new trial is denied an order is entered. The following is a form: APPEALS 295 At a Trial Term of the Supreme Court of New York, held in and for the County of New York at Part XI thereof in the County Court House in the Borough of Manhattan, in the City of New York, on the day of , 19 . Present — Hon. Edward Evans, Justice. Andrew Atkins, Plaintiff, against Benjamin Bristow, Defendant. This action and the issues therein having duly come on for trial before this court and a jury at Trial Term, Part II thereof, on the day of , 19 , and the jury having rendered their verdict in favor of the plaintiff and against the defendant for the sum of $10,000 and the defendant having duly moved to set aside said verdict and for a new trial on all the grounds stated in § 999 of the Code of Civil Procedure, except that the damages were insufficient. Now after hearing Daniel Darling, Esq., attorney for the defendant in support of said motion, and Charles Carter, Esq., attorney for the plaintiff in opposition thereto, and due deliberation having been had, it is Ordered that the said motion be and the same hereby is denied. Enter, E. E. J. S. C. An appeal "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" (§ 1351). This is done by serving a notice of appeal upon respondent's attorney and filing another notice with the clerk with whom the judgment or order appealed from is entered (§ 1300). This thirty- day time limit should be remembered, because the court has no power to extend it (§ 784). If, however, the ap- ' 296 CODE PRACTICE IN NEW YORK pellant seasonably and in good faith serves a 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, the court may permit the omission to be supplied (§ 1303). When the appeal is from a final judgment or from a final order in a special proceeding, the appellant must distinctly specify an interlocutory judgment or intermediate order that he intends to bring up for review. (§§ 1301, 1316). The following is a form of notice of appeal: Supreme Court of New Yotk, County of New York. Andrew Atkins, Plaintiff-Respondent, against Benjamin Beistow, Defendant-Appellant. Please take notice that the defendant hereby appeals to the Appellate Division of the New York Supreme Court in and for the First Judicial Department, from a judgment entered in the above entitled action in favor of the above named plaintiff and against the above named defendant for the sum of $10,000, in the office of the clerk of the County of New York on the day of , 19 , and also from an order entered in the above entitled action in the office of the Clerk of the County of New York on the day of , 19 , denying the defendant's motion for a new trial and from each and every part of said judgment and order, on both questions of law and questions of fact. Dated the day of , 19 . Yours, &c., Daniel Darling, Attorney for Defendant-Appellant. To The Clerk of the County of New York. Charles Carter, Esq., Attorney for Plaintiff-Respondent. APPEALS 297 The mere giving of notice does not operate to stay the execution of the judgment or order (§ 1351). Ahnost invariably at the conclusion of the trial the court upon request, grants a thirty days' stay. When that time has expired, unless appellant is willing to run the risk of having execution issued against him, he must ^ve an undertaking which must be filed with the clerk (§§ 1307, 1310, 1351, 1352). Security, however, may be waived in writing by respondent (§ 1305), or appellant may make a deposit in lieu of the undertaking (§ 1306). The next step is to prepare and serve a proposed case. The time is thirty days after notice of the decision of a motion for a new trial if such motion was made and was not decided at the time of the trial, or thirty days after service of a copy of the judgment and notice of entry (Rule XXXII). But it is usual for the court at the trial to fix specially the time, frequently sixty days. If addi- tional time is required and respondent will not stipulate, a motion must be made, but the appellant's attorney should not wait until the last minute since by Rule XXXII no order extending the time can be made except on two days' notice. What the proposed case shall contain is governed by §§997 and 1353 and by Rules XXXIV, XLI and XLIII. Thus 1. Index. 2. Statement imder Rule XLI. 3. Notice of Appeal. 4. Summons. 5. Complaint. 6. Answer. 7. Reply (if any). 8. Extract from Minutes. 9. Judgment. 10. Order denying motion for New Trial. 298 CODE PRACTICE IN NEW YORK 11. Case (i. e. testimony, charge, requests, exceptions, verdict, motions, exhibits). 12. Stipulation that case contains all the evidence and setthng case. 13. Order SettUng Case. 14. Stipulaf-on Waiving Certification. 15. Opinion or Affidavit of no Opinion. 16. Order Filing Record in Appellate Diyision. The statement required by Rule XLI shows the time of the beginning of the action and of the service of the pleadings, the names of the original parties and any changes in them. The following is a form. Supreme Court of New York, Appellate Division, First Department. Andrew Atkins, Plaintiff-Respondent, Benjamin Bristow, Defendant-Appellant. STATEMENT UNDER RULE XLI This action was begun on the day of i 19 > by the personal service of the summons and complaint on defendant. The answer was served on the day of , 19 (if reply has been served so state). There has been no change in the parties since the action was begun (or as the case may be) and their names are correctly stated above. Plaintiff's attorney is Charles Carter, Defendant's attorney is Daniel Darling. The "case" (No 11 above) consists of a record of the proceedings had at the trial. Thus: APPEALS 299 Supreme Court of New York, Coiuity of New York. Andrew Atkins, Plaintiff, against Benjamin Bristow, Defendant. This action was brought on for trial before Mr. Justice Evans and a jury at Trial Term, Part XI of the Supreme Court, New York County, on the day of , 19 . Appearances. Charles Carter, Esq., Attorney for Plaintiff. Daniel Darling, Esq., Attorney for Defendant. Thereafter it follows the stenographer's minutes. Originally the testimony had to be reduced to narrative form. Naturally there were many controversies over the correctness of the narration. Rule XXXIV now reqiiires that the case "contain all the evidence by question and answer." Rule XXXII requires that the lines of the proposed case shall be numbered. This is for the purpose of identification when proposing amendments. According to the usual practice, the printer furnishes several copies so numbered, which are used in setthng the case. When finally settled, however, the case is merely foHoed. Passing over the other contents of the appeal book as they wiU be considered later, it may be said that Rule XLJ requires the insertion of the opinion of the court below or an affidavit that no opinion was given, or if given, that a copy could not be procured. Thus: AFFIDAVIT OF NO OPINION State of New York, County of New York. Daniel Darling, being duly sworn, deposes and says that he is the attorney for the defendant-appellant herein. No opinion was given by the trial judge in this action. Sworn to before, &c. Daniel Darling. 300 CODE PEACTICE IN NEW YORK When the proposed case is made up, a copy is served on respondent's attorney, who may within ten days serve any proposed amendments, referring at the end of each amendment to the proper page of the stenographer's minutes if he claims that the case should be made to conform thereto. If he fails to serve proposed amend- ments, the case is settled as served on him. If he does serve them, then appellant's attorney may within four days, serve a notice that the case with the proposed amend- ments will be submitted for settlement to the judge before whom it was tried at a time not less than fom* nor more than ten days thereafter. Appellant before he submits, should mark on the several amendments his allowance or disallowance thereof and mark thereon and on the stenog- rapher 's minutes the parts to which the proposed amend- ments are appUcable, together with the nmnber of the amendment (Rule XXXII). Of course he submits at the same time the original stenographer's minutes. The trial judge then passes upon the amendments, settles the case and orders it on file, which order usuaHy is indorsed cm the proposed case submitted. Where the respondent's attorney has no objections to the proposed case or where appellant's attorney is willing to make the changes, the practice is to have the case printed including thra-ein a stipulation and order (Nos. 12 and 13 above) settling the case and ordering it on file as follows: STIPULATION SETTLING CASE It is hereby stipulated that the foregoing case contains all the evi- dence given upon the trial of this action and that the same be settled and ordered to be filed and annexed to the judgment roU herein. Dated the day of , 19 . Daniel Daeling, AUwney for Defendant-AppeUcmt. Charles Cahtee, ' Attorney for Plaintiff-Respondent. APPEALS 301 ORDER SETTLING CASE On the above stipulation the foregoing case on appeal containing all the evidence is hereby settled and ordered on file. Dated the day of , 19 . Edwaed Evans, J. S. C. With reference to the statement that the case contains all the evidence, the rule is that a certificate or stipulation to that effect "is necessary for the appellant when he seeks to show that the judgment is contrary to the evidence or against the weight of evidence, but it is not necessary to enable him to review the exceptions taken at the trial including an exception to a motion for a non-suit or dis- missal of the complaint" (Dupont v. Village of Port Chester, 204 N. Y. 351, 356). Certification by the clerk of the papers on appeal is required unless the parties stipulate that they are true copies of the originals (Rule XLI, § 1353). It is rare that attorneys refuse to stipulate. Hence the following: STIPULATION WAIVING CERTIFICATION Pursuant to section 3301 of the Code of Civil Procedure it is hereby stipulated that the foregoing consists of true and correct copies of the notice of appeal, the judgment roU and case and exceptions as settled and the whole thereof now on file in the office of the Clerk of the County of New York; and certification thereof by the clerk pursuant to § 1353 is hereby waived. Dated the day of , 19 . Daniel Dakling, Attorney for Defendcmt-AppeUant. Chaelbs Cartbe, Attorney for Plaintiff-Respondent. ORDER FILING RECORD IN APPELLATE DIVISION Pursuant to section 1353 of the Code of Civil Procedure, it is Ordered that the foregoing printed record be filed in the office of the 302 CODE PRACTICE IN NEW YORK Clerk of the Appellate Division of the Supreme Court in the First Judicial Department. Dated the day of , 19 . Edwakd Evans, J. S. C. Thirty copies are usually ordered from the printer where there is only one respondent, unless appellant contemplates a further appeal to the Court of Appeals in which event, he orders sixty. The case having been printed, it is then the practice to have the various stipu- lations signed by the attorneys for both parties and two copies of the case are handed to the judge for his signa- ture. Usually the printer will supply two or three copies with the names left blank and print the names in the remainder, thus saving writing them in each copy. When two are signed by the judge, one is filed in the office of the clerk where the judgment roll is filed. Three copies are then served on respondent's attorney who usually admits service on the remaining original. Within twenty days after the settlement of the case (Rule XLI) this original with admission of service is filed with the clerk of the Appellate Division (see Rules IV and V, App. Div., First Dept.). In the First Department, within twenty days after the papers have been filed, the practice is to serve three printed copies of the points (brief) on respondent's attorney and having secured his admission on one of them, file the copy wath eighteen others with the clerk. Respondent's attorney has ten days within which to serve and file a like number of answering points and appellant's attorney five days within which to serve and file reply points (Rule VI, App. Div., First Dept.). Notice of argument (and in the First Department, the argument can be noticed for any day of the term) may be served by either party at any time after the printed appeal papers have been filed. Then the notice with APPEALS 303 proof of service together with a note of issue is filed with the clerk at least eight days prior to the argument (Rule V, App. Div., First Dept.). The parties may stipulate that the appeal be set down for any future day of the term (Rule VI, App. Div., First Dept.). The above is the procedure adopted in the First De- partment, but the practice is not uniform and when the appeal is in another department, its rules should be con- sulted. The Appellate Division "may reverse or affirm, wholly or partly, or may modify the judgment or order ap- pealed from and each interlocutory judgment or interme- diate order which it is authorized to review." It "must give judgment without regard to technical errors or de- fects or to exceptions which do not affect the substantial rights of the parties" (§ 1317). When the appeal is decided by the Appellate Division, a certified copy of its order of affirmance or reversal, to- gether with the original case, is filed in the ofl&ce of the clerk of the county where the original judgment was filed. The county clerk then signs and enters the judg- ment (§ 1355). 2. Appeals to the Court of Appeals. The jurisdiction of the Court of Appeals may be roughly outlined as follows: 304 CODE PRACTICE IN NEW YOBK First. Appeals of Right. 190 subd. 1 il90 subd. 2 f (A) From a final judgment. ((B) From a final order in a special pro- ceeding. /I. Where the construction of the State or U. S. Con- stitution is directly in- Wolved, or J2. Where one or more jus- tices of the Appellate Di- /vision have dissented, or [ 3. Where the judgment or 1 order is one of reversal or \modification. /(C) From an order granting a new trial on exceptions where appellant stipulates for judgment absolute in the event of af- finnance. But the above is limited to appeals ia actions or pro- ceedings commenced in the higher courts (Supreme Court, Court of Claims, County Court, Surrogate's Court). If commenced in any other court, the appeal is not of right but by leave of the Appellate Division which shall certify that a question of law is iavolved which ought to be reviewed (§ 191, subd. 1). Second. Appeals by Leave of Appellate Division. (D) From a determiaation of the Appellate Division other than from a judgment or order which finally deter- mines an action or special proceeding. The Appellate Division must certify the questions of law. Review limited to questions certified (§ 190, subd. 3). (E) From a judgment or order finally determining an ac- tion or special proceeding not appealable of right under (A) and (B) supra, i. e., under § 190, subd. 1. Appellate Division must certify that question of law is involved which ought to be reviewed (§ 190, subd. 4). But no provision for limiting review to question certified. (F) In cases (A), (B), and (C), supra , where action begun in inferior court. No provision for limiting review to question certified (§ 190, subds. 1 & 2; § 191, subd. 1). APPEALS 305 Third. f PPe y Vq.) Jjj ggggg mentioned in (E), supra, where certification r *^t °f ) ^^ refused by the Appellate Division (§ 190, subd. 4). Appeals. \ It will be observed that where there is a unanimous affirmance by the Appellate Division there can be no ap- peal to the Court of Appeals as of right except where constitutional questions are involved. The Appellate Division or Court of Appeals must first grant leave (Matter ofMathot, 222N. Y. 8). The judgment or order referred to in (A) and (B) are "final." If non-final, e. g., an interlocutory judgment or intermediate order, the appeal comes in class (D) where the Appellate Division must certify the question of law to be reviewed and here only the precise question cer- tified can be considered. The reason for this limitation is that, generally speaking, it is inadvisable to permit an appeal before the final judgment since on an appeal from the latter, the intermediate proceedings may be reviewed. It has been said that "a question certified should be a distinct point or proposition of law, clearly stated, so that it can be definitely answered without regard to other issues in the case and should be a question of law only. If a question is stated in such broad and indefinite terms that it will admit of one answer under one set of circumstances and a different answer under another, or if it presents merely an abstract proposition, and no facts are disclosed in the record which show that it arose in the case, the court should decHne to answer it " (Grannan V. Westchester Racing Assn., 153 N. Y. 449, 458). Each question certified should be separately stated so that it can be answered yes or no (DevHn v. Hinman, 161 N. Y. 115). The question certified must have been before the Appellate Division, otherwise there is no determi- 306 CODE PRACTICE IN NEW YORK nation by that court. It cannot be raised for the first tune in the Court of Appeals (Schenck v. Barnes, 156 N. Y. 316; Coatsworth v. Lehigh Valley R. Co., 156 N. Y. 451). Where there has been an appeail to the Appellate Divi- sion from an interlocutory judgment and it has been af- firmed and final judgment has then been rendered in the court below, the losing party may appeal directly from the final judgment to the Court of Appeals, passing by the Ap- pellate Division, since the question has already been de- cided there. But then only the interlocutory judgment will be considered (§ 1336). The losing party, however, may appeal to the Appellate Division from the final judgment and from thence to the Court of Appeals which may then review the determination of the Appellate Disivion aflfirming the interlocutory judgment or refusing the new trial (§ 1350; cf. § 1316). Now as to (C). This covers cases where the Appellate Division has granted a new trial on exceptions, i. e., on the law and not on the facts. Now, the former rule was that in jury cases, where the Appellate Division did not state in its order of reversal whether it was on the law or the facts, it was presumed to have been on the facts and hence no appeal lay of right to the Court of Appeals (Allen V. Corn Exchange Bank, 181 N. Y. 278). But now both in jury and non-jury cases "it must be conclusively presmned 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 nimaber or other adequate designation in the body of the order or judgment appealed from" (§ 1338; Middleton v. Whitridge, 213 N. Y. 499; Fagan V. Atlantic Coast Line R. Co., 220 N. Y. 301). In view of the requirement that the appellant must stipulate for judgment absolute, the winning party in the APPEALS 307 court below who has lost in the Appellate Division, should re-try his case rather than go to the Court of Appeals un- less he feels that he will be unable on the second trial to make good the defects in the first. The jurisdiction of the Court of Appeals is limited to the review of questions of law (§ 191, subd. 2), nor will it review a unanimous decision of the Appellate Division that there is evidence supporting or tending to sustain a finding of fact or a verdict not directed by the court (id., subd. 3). In the language of the Court of Appeals: "Ac- cording to our judicial system, the trial court and the Appellate Divisions finally pass upon all questions of fact and the power of the Court of Appeals is limited by the Constitution 'to the review of questions of law.' Whether there was any evidence to support a fact found is a question of law, which, when the affirmance by the Appellate Division is not unanimous, we can review, but ia no other way can we deal with a question of fact in a civil case, even if we think it has been improperly de- cided" (Ostrom V. Greene, 161 N. Y. 353, 357; City of Niagara FaUs v. N. Y. Cent. & H. R. R. Co., 168 N. Y. 610; Beck v. CathoHc University, 172 N. Y. 387; King v. Village of Fort Ann, 180 N. Y. 496; cf. § 1337). But the Court of Appeals may consider whether there was any evidence to support a directed verdict even though there is a unanimous affirmance by the Appellate Division (Clancy v. N. Y., N. H. & H. R. Co., 201 N. Y. 235). It is impossible within the compass of this work to enter into the question of jurisdiction and we will merely indicate the procedure to be followed. Generally, appellant must appeal within sixty days after service upon his attorney of a copy of the judg- ment or order with notice of entry (§ 1325). But in a case where permission to appeal is granted by the Court of Appeals after being denied by the Appellate Division, 308 CODE PRACTICE IN NEW YORK the time is thirty days from the granting of the appli- cation (§ 1310). The notice of appeal is served on re- spondent's attorney and on the county clerk, since as has already been seen, the judgment is entered in his office. Generally, appellant must give an undertaking to perfect the appeal to the effect that he will pay all costs and damages which may be awarded against him not ex- ceeding five hundred dollars. This must be filed and a copy with notice of fiUng served upon respondent's at- torney (§ 1326). But this does not stay execution and a further undertaking is required for such purpose or as an alternative in some cases, a deposit (§§ 1327-1333). Both undertakings may be contained in one instrument (§ 1334). Respondent's attorney may except to the sufficiency of the sureties who must then justify (§ 1335). The return consists of the papers used in the Appellate Division and in addition the order of the Appellate Divi- sion, the judgment entered thereon, the opinion of the Appellate Division or an affidavit that none was rendered, with certification by the clerk or a stipulation waiving it. This return must be filed in the office of the clerk of the Court of Appeals within twenty days after the appeal is perfected, i. e., after filing and service of the notice of appeal and undertaking (§ 1315, Rule I, Ct. of App.). Appellant has the case printed (Id., Rules IV and V), and within forty days after the appeal is perfected, must serve three copies on respondent's attorney (Id., Rule VI). Under Rule VII at least twenty days before the cause is placed on the day calendar, eighteen copies of the case and the same number of printed points (or briefs) are filed with the clerk and three copies of the points served on re- spondent's attorney. Within ten days thereafter, respond- ent's attorney may file and serve a like number of answer- ing points and appellant's attorney has five days thereafter during which he may put in points in reply (Rule VII). APPEALS 309 By § 194 "the judgment or order of the Court of Ap- peals must be remitted to the court below, to be enforced according to law." The practice then is as follows: After the appeal has been decided, the Clerk of the Court of Appeals signs and seals the "remittitiu-" which con- tains a transcript of the proceedings, including the judg- ment, together with the papers constituting the return by the Appellate Division. A motion is then made by the attorney for the successful party at special term that the judgment of the Court of Appeals be made the judgment of the lower court. Upon an appeal from an order grant- ing a new trial, if the Court of Appeal determines that no error was committed, it renders judgment absolute leaving the assessment of damages or other proceedings necessary to render the judgment effectual, to the court below (§ 194). CHAPTER XV ACTIONS RELATING TO REAL PROPERTY 1. In General. (A) Notice of Pendency of Action. (B) Method of Sale. (C) Compelling Delivery of Possession, Eight of Action by Re- versioner, Order Restraining Waste, Order for Survey. 2. Ejectment. 3. Partition. 4. Dower. 5. Foreclosure of Mortgage. (A) By Action. Surplus Proceedings. (B) By Advertisement. 6. To Determine a Claim. 7. Waste. 8. Nuisance. 9. Other Actions. 10. Perpetuation of Testimony. 1. In General. (A) Notice of Pendency of Action. In an action brought to recover a judgment affecting title to or the possession, use or enjoyment of real property, if the corn-plaint is verified, plaintiff may, when he files his complaint, or at any time afterwards before final judgment, file with the county clerk a lispendens or as the Code terms it a "notice of the pendency of the action," stating the names of the parties, the object of the action and a brief description of the property (for form of lispendens see infra, p. 333). It may be filed with the complaint before service of the smnmons, but in that case personal service must be made or pubUcation commenced, or service made without the 310 ACTIONS RELATING TO REAL PROPERTY 311 state within sixty days (§ 1670). When not followed by service or pubhcation within that time it will be canceled (Lipschitz V. Watson, 113 App. Div. 408). It should be noted that the lispendens must not be filed before filing the complaint. The county clerk records the notice, indexing it to the name of each defendant specified in a direction at the foot subscribed by plaintiff's attorney (§ 1672). Defendant when he sets up a counterclaim upon which he denaands an affirmative judgment affecting title, possession, use or enjoyment may file a like notice (§1673).^ The filing of a lispendens operates to give constructive notice to a purchaser or incumbrancer from or against a de- fendant with respect to whom it is directed to be indexed, and a person whose conveyance or incumbrance is sub- sequently executed or recorded is bound by all proceedings as if he were a party (§ 1671). In partition, dower and foreclosure actions, there are also bound all who acquire inchoate dower after the fiUng and also all born between such filing and the entry of judgment who would have been bound if born after the judgment (§ 1671A). Except in actions of foreclosure, partition or dower, a defendant or person interested may apply to have the lispendens canceled upon making a deposit or giving an undertaking (§ 1671. See § 1674 as to judgment creditors ' actions) . But this will only be permitted where plaintiff can secure adequate relief thereby as in cases where his only remedy is a money judgment (Bresel v. Browning, 109 App. Div. 588). Otherwise, cancellation will not be permitted, as where plaintiff seeks to have a deed vacated and set aside (WoUnsky v. Okun, 111 App. Div. 536) or where the action is for specific performance of a contract to convey land, unless it is manifest from the complaint that specific performance is impossible (McCrum v. Lex Realty Co., 113 App. Div. 58; Tishman 312 CODE PRACTICE IN NEW YORK V. Acritelli, 111 App. Div. 237; Kennedy v. Hall, 51 Misc. 78). A Uspendens will also be ordered canceled after the action is settled, discontinued or abated, or final judgment rendered against the party filing it and the time to appeal has expired and it may be canceled if plaintiff unreasonably neglects to proceed (§ 1674; Jarvis V. American Forcite Powder Manufacturing Co., 93 App. Div. 234). The right to file a lispendens is absolute and cancellation cannot be ordered except as directed by the Code (Beman v. Todd, 124 N. Y. 114). If defendant in an action of ejectment or for dower aliens the property after the lispendens is filed and execution against him for plaintiff's damages is returned unsatisfied, plaintiff may maintain an action against any person who has been in possession imder defendant's conveyance to recover the unsatisfied portion of the damages for a time not exceeding that during which he possessed the property (§ 1685). (B) Method of Sale. Where judgment in partition, dower or foreclosure, directs a sale, the officer maldng it must out of the proceeds, unless otherwise directed, pay all taxes, assessments and water rates, which are liens, and redeem the property from any sales therefor which have not apparently become absolute (§ 1676). Where real property is situated in a coxmty other than that in which judgment is entered, the judgment must also be entered in the office of the clerk of the county where the property is situated, before the purchaser can be required to pay the ptu-chase money or accept a deed (§ 1677). The method of sale is governed by §§ 1678, 1434 and Rule LXII which should be carefully consulted. It must be at pubUc auction and to the highest bidder. In the County of New York it must take place at the Exchange Sales Rooms unless otherwise directed. The general rule laid down by § 1434 requires publication at least ACTIONS RELATING TO REAL PROPERTY 313 once in each of the six weeks immediately preceding the sale, but by § 1678, if the property is situated wholly or partly in a city or incorporated village of the first class it may be for twice in each week for three successive weeks in a daily, semi-weekly or tri-weekly paper pub- lished therein. In the counties of New York and Kings, pubhcation must be in two daily papers to be designated by the judgment directing the sale. By Special Term Rule XV, First District, there must be published with the notice of sale, a diagram of the property (Francis v. Watkins, 72 App. Div. 15, afCmd. 171 N. Y. 682) and where such sale is made to satisfy any lien or charge, the approximate amount must be stated. This must also be done where there are taxes, assessments or other hens to be allowed to the purchaser out of the purchase money or paid by the referee. An officer makiag a sale or a guardian of an infant party shall not, nor shall any person for his benefit, purchase or be interested in the purchase except that a guardian when authorized, may piu-chase for the benefit of his ward (§ 1679). The provisions of Rule LXXIX should be kept in mind, namely, that no person shall be appointed referee who is the partner or clerk of, or in any way connected in business with the at- torney or counsel of the party in whose behalf application is made, or who occupies the same office. (C) Compelling Delivery of Possession. Where a judgment in any of the actions hereafter mentioned allots a distinct parcel of real property, or directs a sale or confirms allotment or sale, it may generally direct delivery of possession. If possession is withheld the court besides punishing the disobedience as a con- tempt, may by order require the sheriff to put the person in possession (§ 1675). This reUef was originally obtained by means of a "writ of assistance" and the order is frequently so termed (see Greene v. Geiger, 46 314 CODE PRACTICE IN NEW YORK App. Div. 210; Title Guarantee & T. Co. v. Am. Power & Const. Co., 95 App. Div. 192). Bight of Action by Reversioner. Where a tenant for life or for years suffers judgment to be taken agatast him by- consent or default in an action of ejectment or for dower, the heir, reversioner or remainderman nmy maintaia ejectment after the determination of the particular estate (§ 1680). Order Restraining Waste. Defendant may be restrained by order from committing waste during the pendency of the action (§ 1681). Order for Survey. An order for a survey of the property or of a boundary line may be made to enable either party to prepare a pleading or for trial or for any other proced- ing in the action (§§ 1682-1684). Ejectment. The action of ejectment* which is brought to recover the immediate possession of land is now known as an * At common law, the method of suing depended, in the language of Blackstone, "upon a string of legal fictions." If Jones desired to recover land which was in Smith's possession, he (Jones) would allege in his declaration that he had made a lease to that mythical individual John Doe, that Doe, the lessee, had entered and that Richard Roe or some other worthy non-existent person who was called the "casual ejector," had ousted Doe. Then Roe, the casual ejector, who was the nominal defendant, was supposed to send the declaration to the tenant in possession with a written notice informing him of the action brought and assuring him that he (Roe) had no title to the premises and would make no defense. He therefore advised Smith to appear in court and defend his own title, otherwise, he, the casual ejector, will suffer judg- ment to be had against him and thereby Smith will inevitably be turned out of possession. On receipt of this friendly caution Smith would apply to be made a defendant in the place of Roe and this was permitted upon condition that he confessed the lease of Jones, the lessor, the entry of Doe, the plaintifif, and his ouster so that the trial could then proceed upon the merits. The declaration was then al- ACTIONS RELATING TO REAL PROPERTY 315 "action to recover real property," although the old term has survived ia practice (see § 3343, subd. 20). It will not lie where the property is not in its own nature ca- pable of physical possession, e. g., an easement or other incorporeal hereditament (see Woodhull v. Rosenthal, 61 N. Y. 382). "Whenever one person enters upon and takes permanent possession of the real property of an- other, claiming title thereto, whether it arises over a disputed boundary or otherwise, an imlawful entry or ouster has been made for which an action of ejectment is the proper and only sufficient remedy" (Leprell v. Klemschmidt, 112 N. Y. 364, 369; cf. § 1499, subd. 2). It is not essential that the soil be touched. Thus it has been held that ejectment will lie where the defendant had unlawfully strung a telephone wire above plaintiff's premises (Butler v. Frontier Telephone Co., 186 N. Y. 486). Formerly a mortgagee might bring an action of eject- ment to recover possession of the mortgaged premises after the mortgagor's default, but this is now prohibited (§ 1498). Nor can ejectment be brought when an action for dower may be maintained (§ 1499). The section just quoted likewise fixes a time limit in cases of encroach- ing walls. It provides that where in any city, the real property consists of a strip not exceeding six inches in width upon which there stands the exterior waU of a building erected partly on the strip and partly on the adjoining lot and a building has been erected on plain- tiff's land abutting on the wall, the action must be com- tered by inserting the name of Smith instead of Roe and the title of the action then became "Doe on the demise of (or ex dem), Jones agaiast Brown." In New York instead of Doe, the name "Jackson" was originally used. The Code however abolished this legal farrago. For a description of ejectment actions at common law see the novel "Ten Thousand a Year" by Samuel Warren. 316 CODE PRACTICE IN NEW YORK menced within one year after the erection of the wall. But an action to recover damages may be brought within the further period of one year and upon satisfaction of the judgment, plaiatifT's title shall be transferred to defendant. If neither an action of ejectment nor for damages shall be brought within the time limited, the person in possession shall be deemed to have an easement in the strip so long as the wall shall stand and in case of the wall's destruction, the owner of the strip may recover possession (§ 1499, subd. 2; see Volz v. Steiner, 67 App. Div. 504). It should be noted that plaintiff's building must have abutted on the encroaching wall and hence the section has no application, where there is an intervening space between the two walls (Bergman v. Klein, 97 App. Div. 15). One or more joint tenants or tenants in common may maintain an action to recover his or their imdivided shares (§ 1500) and as already stated (see supra, p. 44) a grantee may sue in the name of his grantor when the property conveyed was held adversely to the grantor at the time of conveyance (§ 1501). The reason is that since the deed is void as against the person in adverse possession, the grantee took nothing more than a right of entry, i. e., a chose in action. Originally, an assignee could sue only in the assignor's name and the Code when it provided that suits were to be brought by the real party in interest, pre- served the old rule in cases of this kind (Dever v. Hagerty, 169 N. Y. 481). It may be noted that the Champerty Act, § 260 of the Real Property Law, declares a grant void "if at the time of the delivery thereof, such property is in actual possession of a person claiming under a title ad- verse to that of the grantor." Hence a mere general as- sertion of ownership is not sufficient. To come within the purview of the statute, there must have been some specific title under which the adverse possessor claims. ACTIONS RELATING TO REAL PROPERTY 317 "This title may be good or bad, but there must be at least a color of title opposed to the title of the grantor in the deed" (Crary v. Goodman, 22 N. Y. 170, 176; Arents v. Long Island R. Co., 156 N. Y. 1; Archibald v. N. Y. C. & H. R. R. Co., 157 N. Y. 574). When the complaint demands judgment for Lnmediate possession, if the property is actually occupied, the occu- pant must be made a defendant. If not so occupied, the action must be brought against some person exercising acts of ownership or claiming title or interest (§ 1502) and any other person claiming title or right to the possession as landlord, remainderman, reversioner or otherwise ad- versely to plaintiff may be joined (§ 1503). When a ten- ant for Hfe or years suffers judgment to be taken against him in ejectment, by consent or default, the heir, rever- sioner or remainderman may maintain ejectment after the determination of the particular estate (§ 1680). Eject- ment is also maintainable against a tenant in certain cases where a right of re-entry exists (§ 1504-1510). The complaint must describe the property with " com- mon certainty," so that from the description, possession may be dehvered (§ 1511). Ordinarily as has been seen, the authority of the attor- ney appearing for a party is presumed, but in ejectment, the defendant may apply for an order directing plaintiff's attorney to produce evidence of it. Any written request of plaintiff or his agent to the attorney to commence the action, or any written recognition of authority verified by the affidavit of the attorney or other competent witness is sufficient presumptive evidence (§§ 1512-1514). Where a tenant in common or a joint tenant brings an action against his co-tenant, he must prove an actual ouster or some other act amounting to a total denial of his right (§ 1515). The reason is that the possession by one ten- ant in common is generally deemed the possession of his 318 CODE PRACTICE IN NEW YORK co-tenant. Hence there can usually be no adverse pos- session acquired by one against the other, though it is otherwise where there has been notice in fact of an adverse claim or unequivocal acts so open and pubhc that notice may be presumed of the assault upon the title and the in- vasion of the co-tenant's rights (Culver v. Rhodes, 87 N. Y. 348; Schenck v. Egbert, 56 Misc. 378). Where there are distinct occupants of different parcels, the action may bedivided(§§ 1516, 1518). The verdict, report or decision in plaintiff's favor must specify his estate, whether in fee, for life or for years, giv- ing particulars (§ 1519). He noay recover damages for withholding the property (§ 1496) including rents and profits or for value of use and occupation (§ 1497) but not for more than six years. Furthermore, there shall not be included the value of the use of any improvements made by defendant or those under whom he claims, and perma- nent improvements made in good faith must be allowed in reduction (§ 1531). If plaintiff's right expires before the trial, he may recover damages to the time of the expira- tion (§ 1520). If he dies, and different persons succeed to his title in different and distinct parcels of the prop- erty the action may be divided, the proper substitutions directed (§ 1522) and a division made as to right or lia- bility for rents and profits (§ 1523). To understand §§ 1524, 1526 it must be kept in mind that "by the common law rule and wherever that rule has not been abrogated or changed by statute, a judgment in ejectment is not conclusive upon the question of title in any other action between the same parties, or a bar to a number of successive actions of the same kind for the same land, unless after the title has been fairly and fully tried, equity will interfere by injunction to restrain the unsuc- cessful claimant from bringing further suits" (23 Cyc. 1326). At one time in this state, by § 1525, the judgment ACTIONS RELATING TO REAL PROPERTY 319 might be vacated and a new trial granted at any time within three years and the second judgment might be va- cated within two years thereafter, thus giving the plaintiff a right to three trials. So a judgment when rendered by de- fault might likewise be opened up. But this was changed in 1911 and now judgments whether after trial or by default are conclusive upon the defendant and all persons claim- ing imder him by title accruing after the judgment roll or lispendens is filed (§§ 1524, 1526). 3. Partition. Where two or more persons hold in co-tenancy, they may divide the land and this division may be brought about either by agreement or by action. Concerning the first method, very little need be said. The property may be sold, all joining in the conveyance, and the proceeds di- vided, or if susceptible of physical division, deeds may be exchanged. For that matter, a parol partition may be made of lands owned by tenants in common provided each party takes and retains exclusive possession of the portion allotted to him (Taylor v. Millard, 118 N. Y. 244; Wood V. Fleet, 36 N. Y. 499). The Code provides a method of voluntary partition, where the joint tenant or tenant in common is an incom- petent. The general guardian of an infant or the commit- tee of an idiot, lunatic or habitual drunkard may apply for authority to agree to the partition (§§ 1590, 1591) and if after inquiry, by a reference or otherwise, the court is of opinion that the interests of the incompetent will be promoted, it may authorize the petitioner to execute re- leases (§§ 1592, 1593). By § 56 of the Domestic Rela- ions Law, husband and wife "may make partition or divi- sion of real property held by them as tenants in common, joint tenants or tenants by the entireties." This, it has been held, merely permits tenants by the entirety vol- 320 CODE PRACTICE IN NEW YORK untarily to divide the property. It does not authorize one such tenant (Vollaro v. Vollaro, 144 App. Div. 242; Lerbs v. Lerbs, 71 Misc. 51) or his grantee (Bartkowaik V. Sampson, 73 Misc. 446; Zomtlein v. Bram, 100 N. Y. 12), to maintain an action to partition against the will of the co-tenant. But it is otherewise where the holding is in joint tenancy or in conunon (Jooss v. Fey, 129 N. Y. 17). The Code proAddes for an action for partition; * (a) where two or more persons are in possession as joint tenants or tenants in common either of them having an estate of in- heritance, for life or for years (§ 1532) ; (b), where they hold jointly or in common, a vested remainder or reversion, the action being subject to the interest of the person holding the particular estate whose consent is necessary to a sale of the premises (§ 1533); (c), where plaintiff claims to be entitled as a joint tenant or tenant in common by reason of his being an heir of a person who died holding and in possession of the property, notwithstanding an apparent devise to another by the decedent and possession thereunder. Here he must allege and establish that the apparent devise is void (§ 1537). Thus the heir is per- mitted to test the validity of a devise in a partition action which originally he was not allowed to do (Holder v. Holder, 40 App. Div. 255). An action for partition cannot be brought by an infant unless authorized by the surrogate who must be satisfied that the interests of the infant will be promoted (§ 1534), and it has been said that "this leave should only be granted in a clear case showing a necessity therefor" (O'Donaghue v. Smith, 184 N. Y. 365, 376). The failure to secure this order has been held to constitute a juris- dictional defect (MuUer v. Naumann, 85 App, Div. 337). A guardian ad litem for an infant party can be appointed * For a full set of forms, see 4 Bradbury's PI. & Pr. Rep. 35. ACTIONS RELATING TO REAL PROPERTY 321 only by the coiirt (§ 1535) and security must be given even by a general guardian (§ 1536) . Section 1538 provides as to necessary parties, e. g., persons having undivided shares in possession or otherwise as tenants in fee, for Ufe, by the cm-tesy or for years; reversioners and remaindermen of undivided shares; persons who by any contingency may become entitled to a beneficial interest in an undivided share; persons having a right of dower therein, the executors or admin- istrators of a decedent from whom plaintiff's title is derived when three years have not elapsed since letters testamentary or of administration have been issued, &c. Sections 1539 and 1540 provide as to proper parties, e. g., tenants by the curtesy, for hfe or for years of the entire property; contingent or vested remaindermen and reversioners of the entire property; and holders of hens on the entire property or on an undivided share or in- terest. The first step therefore is to make a search or cause one to be made for the purpose of ascertaining who are interested parties. In drawing the complaint plaintiff "must describe the property with common certainty and must specify the rights, shares and interests therein of all the parties so far as the same are known to the plaintiff." If a party is unknown or a right, share or interest is unknown, uncertain or contingent it must be stated (§ 1542) a provision, so the Court of Appeals has said broad enough to permit the inclusion as defendants of "intruders, trespassers or persons claiming title or some right adverse and hostile to the plaintiff" (Satterlee v. Kobbe, 173 N. Y. 91, 95). If a creditor having a hen on an undivided share or interest is made a defendant the plaintiff "must set forth the nature of the hen and specify the share or interest to which it attaches" (§ 1540). Reference must also be made to Rule LXV providing 322 CODE PRACTICE IN NEW YORK that where several tracts or parcels of land within the state are owned by the same persons in common, no separate action for partition of a part shall be brought without the consent of all the parties interested or with- out the special order of the court, a violation of which rule may result in chargitig plaintiff's share with the whole costs of the proceeding; and where infants are interested, the complaint shall state whether or not the parties own any other land in common. The reason for this is that partition proceedings are highly technical and quite expensive. Consequently it is advisable to settle everything in one action. It is usual to file the lispendens with the summons and complaint. It cannot be filed before the filing of the complaint though it may be filed afterwards before final judgment (§ 1670; for form of Uspendens see "Fore- closure," infra, p. 333). It must be indexed against the name of each plaintiff and of each defendant having any interest or estate (§ 1672). The summons is served as in other actions, but where a defendant having a share or interest is unknown, or where his name or part of his name is unknown and service is made by pubhcation, the notice subjoined to the published summons must state briefly the object of the action and contain a brief description of the property (§ 1541). The defendants or some of them may contest the allegations in the complaint or they may default. Orig- inally a disputed title could not be determined in an ac- tion of partition. This has been changed, for § 1543 pro- vides that the title or interest of the plaintiff or of any defendant may be controverted (Holder v. Holder, 40 App. Div. 255; Satterlee v. Kobbe, 173 N. Y. 91). Partition is essentially an equitable action, but by § 1544, a jury trial of the issues of fact is a matter of right. The procedure to be followed here is not uniform. It ACTIONS RELATING TO REAL PROPERTY 323 has been held that it is within the court's discretion whether at special term, to direct issues of fact to be set- tled and that the verdict be certified to special term for further proceedings, or to place the case upon the trial term calendar and the questions of fact presented by the pleadings submitted to the jury (Hewlett v. Wood^ 62 N. Y. 75). More specifically, it has been pointed out in Southack v. Central Trust Co., (62 App. Div. 260), that the action being ia equity it should be placed upon the special term calendar and noted for trial there. Then (1), without waiting for the cause to be reached on the calendar, either party may under § 970 apply for an order settling the issues and directing its trial by a jury at trial term, or (2), when the case comes on for trial at special term, a demand for a jury trial may be made and the court at special term may then settle the issues and send them into the trial term or may simply make an order directing that the issues raised by the pleadings be tried at trial term. The second method is said to be the best and in the first district the further procedure is stated as follows: "When such an order is made, upon filing the certified copy of the same with the calendar clerk of the trial term. Part II, it is the duty of such clerk to put the case upon the preferred calendar as provided for by Rule III, regulating the practice of the trial terms in this district, and the case when reached upon this calendar must then be tried, issues being framed by the trial court if they have not already been framed by the special term, aifd upon a verdict being rendered upon such issues, the same must be certified by the clerk to the court at special term. No new notice of trial is necessary at the trial term." Inasmuch as a jury trial is matter of right, the verdict is not considered as advisory merely but as having the effect of a verdict in an ordinary action at law (Jones v. Jones, 120 N. Y. 589). 324 CODE PRACTICE IN NEW YORK The case having been remanded to special term (cf. Adams v. Bristol, 108 App, Div. 303), it may then be neces- sary to determine other questions involved if they were "not submitted to the jury. Thus, if a sale is to be made, there must be a reference to ascertain whether there is any creditor not a party who has a hen on an undivided share or interest, though this may be dispensed with where a county clerk's or register's search is produced showing no such outstanding hen (§§ 1561, 1562). It should be noted, however, that this is only required when there is to be a sale, since where a physical division is to be had, the Uen will attach to the portion of the property set apart to the particular debtor, whereas a sale should be made free from liens on xmdivided shares. If the lien is on the entire property, the latter can be sold subject thereto. Where there is an existing right of dower in the entire property the court must determine whether it should be excepted from the sale or should be sold (§ 1567) and in the latter event, the dowress may elect to receive from the proceeds a gross sum in satisfaction, or one-third of those proceeds may be invested for her benefit (§§ 1568, 1569) . Life tenants and tenants for years have a like right of election (§ 1569). The interlocutory judgment declares the right, share and interest of each party "so far as the same has been ascertained." Where it is found by the verdict, report or decision or where it appears to the court that partition cannot be made without great prfejudice to the owners, a sale is directed, otherwise the interlocutory judgment di- rects a physical division (§ 1546). Usually the specific interests are set forth in detail, but the interlocutory judgment may determine the interest of a party and allow the interests of others to remain unascertained, in which event it directs partition as between the party whose share ^ ACTIONS EELATING TO REAL PROPERTY 325 has been determined and the other parties, the action then being severed. In such a case, the court may from time to time, as the other interests are ascertained, render interlocutory judgments directing the partition of the re- mainder of the property (§ 1547). This practice, however, is not to be commended. If two or more of the parties manifest their desire to enjoy their shares in common, parition may be directed accordingly (§ 1548). The inter- ests of owners of future estates and of unknown owners are protected (§§ 1570, 1571) and in the interlocutory judgment for a sale the court must direct the terms of credit which may be allowed for any portion of the pur- chase money which is to be invested (§§ 1573, 1575). If a sale is directed, as is usually the case where the prop- erty is located in a city or town, a referee is appointed who, after making it, files his report (§ 1576). If the re- port is confirmed, final judgment is entered to that effect, directing him to execute the proper conveyances and take the proper securities and also directing the final appU- cation of the proceeds (§§ 1577-1586). Within sixty days after the entry of the final judgment, unless the time is extended, the referee files his report showing compliance, together with his vouchers (§ 1580). The right to rents may be adjusted either in the interlocutory or final judg- ment (§ 1589). If, on the other hand, a physical division of the prop- erty is directed, the interlocutory judgment designates "three reputable and disinterested freeholders as commis- sioners," to make it (§ 1549). After each has subscribed an oath (§ 1550), they proceed if possible (§ 1551), to di- vide the property into distinct parcels and allot them to the respective parties, designating the boimdaries by i'moniunents (§§ 1552, 1553). They then make a report (§ 1554). If it is confirmed, the final judgment directs ^dehvery of possession either immediately, or after the 326 CODE PRACTICE IN NEW YORK determination of a particular estate (§§ 1556-1558). If partition cannot be made equal, the final judgment may award compensation for "equality of partition " (§ 1587). If the commissioners report that a partition cannot be made without great prejudice to the owners, the court may modify the interlocutory judgment or render a supple- mental interlocutory judgment directing that the prop- erty be sold (§§ 1551, 1560). Now as to default cases. Where all the defendants are in default or where a party is an infant, § 1545 pro- vides that the court must ascertain the rights, shares and interests of the several parties by a reference or otherwise before the interlocutory judgment. This is supplemented by Rule LXVI covering cases where the rights and inter- ests of the several parties as stated in the complaint are not denied or controverted. Here, if any of the defendants are infants, absentees or unknown, the plaintiff may apply on notice to such as have appeared, for an order of refer- ence to take proof of plaintiff's title and interest and of the matters set forth in the complaint, and to ascertain and report the rights and interests of the several parties in the premises, and an abstract of the conveyances imder which the same are held. Such referee and the referee to sell must be selected by the court. The language of § 1545 is somewhat misleading. It does not mean that issues of fact can be disposed of by means of a reference against the objection of a party who desires a jury trial just because one of the parties is an infant. It refers only to defaults and includes the case of an infant defendant who has merely served a general answer sub- mitting his rights to the court (Fairweather v. Burling, 181 N. Y. 117) . Hence there may be an order of reference where the adult defendants have defaulted or have raised no issues and where the infants have merely interposed general answers since no issues are raised thereby. Under ACTIONS RELATING TO REAL PROPERTY 327 § 1561 already mentioned, there must be a reference to inquire as to lien creditors on undivided shares where there is a sale, unless it is dispensed with. In practice, it is cus- tomary to embody both references in the same order, submitting all questions to the same referee. On mov- ing for the reference, plaintiff submits the usual affidavit of regularity (see " Forcelosure " infra, p. 335). At the hearing, plaintiff must make out a prima facie case practically as on trial. The referee renders his report, and if confirmed, an interlocutory judgment is entered as in cases where there has been a contest and a sale or par- tition is directed, the same procedure being followed. 4. Action for Dower. This action must be commenced by the widow within twenty years after the death of her husband, unless at the time of his death she is under a disabilty (§ 1596; see Wetyen v. Pick, 178 N. Y. 223). But as will be seen here- after, the owner of the estate may bring an action against her to compel the determination of her claim (see infra, p. 349). She miist make the actual occupant, if any, a party and if there is no occupant the individnal exercis- ing acts of ownership or claiming title or an interest (§ 1597). She may join as defendant any other person claiming title or right to possession (§ 1598) and all per- sons in possession of or claiming title to different por- tions in severalty (§ 1599). The complaint must describe the property as in an ac- tion of ejectment, i. e., "with common certainty," and must set forth the name of plaintiff's husband (§ 1606). If the defendant contests, the issues of fact must be tried by a jury imless a jury trial is waived (§ 968) and the ac- sion is entitled to a preference where plaintiff proves that the has no sufficient means of support aside from the estate in controversy (§791, subd. 6). 328 CODE PRACTICE IN NEW YORK If defendant makes default, or if the widow's right is not disputed, or being disputed, it appears by the verdict, report or decision upon a trial, that she is entitled to dower, an interlocutory judgment is rendered directing that such dower be admeasured by a referee or "by three reputable and disinterested freeholders" designated as commisioners (§ 1607). The referee or commissioners after taking an oath (§ 1608), proceed if practicable and for the best in- terests of all parties concerned, to lay off a distinct parcel constituting one-third of the real property, designating it by monuments, and report to the court. If it is not practi- cable or for the best interests of aU concerned to do so, they report according (§§ 1609, 1610). Upon the report being confirmed, final judgment is rendered. If a distinct parcel has been laid off to the widow, the judgment awards it to her during her natural life, otherwise, it directs that a sum fixed by the court equal to one-third of the rental value as ascertained by a reference or otherwise, be paid to her annually or oftener during her natural life and that this sum remain a charge upon the property. It may also award damages for the withholding of dower (§§ 1613, 1600-1603). The widow may from time to time, maintain an action to recover unpaid installments or to procure a sale of the property for the purpose. If thereafter it ap- pears that the rental value has materially increased or diminished, the final judgment may be modified accord- ingly (§ 1614). If a portion of the property has been laid off to the widow, a hen inferior to her dower right attaches during her life to the residue (§ 1615). Now it may be that the widow will prefer to accept a gross sum in lieu of dower and in such case, she may file her consent at any time before an interlocutory judgment is rendered upon defendant's default or where an issue of fact is joined, at any time before the commencement of the trial (§ 1617). Any defendant may then apply for ACTIONS RELATING TO REAL PROPERTY 329 leave to pay. The court may thereupon ascertain the value of the dower right which it usually does by means of a reference and may make an order directing payment by the appUcant (§ 1618). Ordinarily the widow places herself in a better position by fiUng her consent, for thereupon she may insist that a distinct parcel may be laid off to her if it can be done with- out material injury to the interests of the parties and if not, the property may be sold (§§1619-1624). Upon confirming the sale, the value of her dower is computed upon the principles appUcable to Hfe annuities and the sum paid to her (§ 1624). 5. Foreclosure of Mortgage on Realty. (A) By Action. As this is probably the most important of the real property actions, or at least the one most fre- quently brought, the proceedings have here been set forth in detail at the risk of repeating matter mentioned elsewhere. The first step is to make a search or cause one to be made, for the purpose of ascertaining what interests or liens there are subject to the mortage. To make certain that none are omitted the search should be extended so as to cover the date of filing the complaint and hspendens. The summons, complaint and lispendens (or as the Code terms it "notice of the pendency of the action") are then drawn. The owner of the equity of redemption and his wife are, of course, made parties defendant, like- wise all subsequent lienors such as mortgagees and judg- ment creditors and in fact all who have present subordinate interests. A tenant under a subsequent lease should be included if it is desired to abrogate the lease (Common- wealth Mortgage Co. v. De Waltoff, 135 App. Div. 33; Utility Realty Co. v. Dugan, 93 Misc. 510). The mort- gagor and any other party liable for the payment of the 330 CODE PRACTICE IN NEW YORK mortgage debt should be brought in if a deficiency judg- ment is desired (§ 1627). The complaint 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 (§ 1629). Though the mortgagee may sue on the bond if he wishes, subject to the limitation that he cannot sell the equity of redemption under the judgment, since the law contemplates that it shall be sold only under fore- closure (§ 1432), yet he may not bring such suit without leave of court while a foreclosure action is pending or after final judgment in his favor is rendered therein (§ 1628; Equitable Life Ins. Co. v. Stevens, 63 N. Y. 341) . Further- more, when final judgment has been rendered in an action on the debt, an execution must have been issued and returned wholly or partly unsatisfied before a foreclosure action can be brought (§ 1630). A party is not entitled as of right to both remedies at the same time. The fol- lowing is a form of complaint : Supreme Court of New York, County of New York. Andrew Atkins, Plaintiff, against Benjamin Bristow and Bertha Bristow, Ms wife, Peter Per- kins, QuiNTus Question, Ralph RoLMNS and Sylvanus Still- well,* Defendants. The plaintiff by Charles Carter, his attorney, complaining of the defendant alleges: First: That the defendant, Peter Perkins, for the purpose of secur- * In the foregoing, it may be assumed that Benjamin Bristow and his wife are the present owners of the property and that the defendants ACTIONS RELATING TO REAL PROPERTY 331 ing to the plaintiff the payment of the sum of $10,000 with interest thereon, on or about the day of , 19 , executed and delivered to plaintiff his certain bond bearing date on that day, sealed with his seal, whereby he bound himself, his heirs, executors and ad- ministrators in the sum of S20,000 upon condition that the said obliga- tion should be void if he, his heirs, executors or administrators, should pay to the plaintiff the said sum of $10,000 on the day of ,19 , also interest on the same at and after the rate of five per cent per aimimi to be paid semi-annually on the days of and in every year. Second: That as collateral security for the payment of said in- debtedness, the said defendant Peter Perkins, on the same day duly executed and delivered to the plaintiff a certain mortgage wherein and whereby he granted and conveyed to the plaintiff certain premises in the Borough of Manhattan in the City of New York which were thereui more particularly described as follows (insert description). Thied: That the said mortgage contained the same conditions as the said bond and in case of default in the payment of the said sum of money or any part thereof or the interest that might accure thereon, the said plaintiff was thereby empowered to sell the said mortgaged premises according to law. Foueth: That the said mortgage was duly recorded in the office of the Register of the County of New York on the day of , 19 , in Block Series (Mortgages) Section , liber , page and indexed under Block number on the Land Map of the City of New York, the said County of New York being the county within which said premises were then situated and at the same time and place, said plaintiff duly paid to the Register of the County of New York a recording tax on the said mortgage amounting to dol- lars. Fifth: That in and by said bond and mortgage, it was covenanted and agreed that the whole of said principal sum should become due at the option of the said plaintiff, after default in the payment of interest for thirty days after the same should become due. Sixth: That the defendant, Peter Perkins, has failed to comply with the conditions of the said bond and mortgage by omitting to pay the sum of Two himdred and fifty dollars being the semi-annual interest which became due and payable on the day of ,19 except Peter Perkins are judgment creditors or other lienors or are tenants. 332 CODE PRACTICE IN NEW YORK That more than thirty days have elapsed since said interest became due and the same remains impaid and the plaintiff elects to declare the whole of the said principal sum due in accordance with the option contained in the said bond and mortgage and there is now justly due the plaintiff on said bond and mortgage the principal sum of Ten thousand dollars with interest thereon from the day of , 19 , at the rate of five percentum per annum. Seventh: Upon information and belief that the defendants above named other than the said Peter Perkins have or claim to have some interest in or lien upon the said mortgaged premises or some part thereof, which interest or lien, if any, has accrued subsequent to the hen of the plaintiff's aforesaid mortgage and is subordiuate thereto. Eighth; That no other action has been brought for the recovery of the said sum of money secured by the said bond and mortgage or any part thereof. Wherefore plaintiff demands judgment that the defendants and all persons claiming under them subsequent to the commencement of this action may be forever barred and foreclosed of all right, claim, lien and equity of redemption in and to the said mortgaged premises; that the said premises may be decreed to be sold according to law; that the money arising from the sale may be brought into court; that the plaintiff may be paid the amount due on said bond and mortgage with interest to the time of such payment and the costs and disburse- ments of this action so far as the amount of such money properly ap- pUcable thereto will pay the same and that the defendant, Peter Perkins, may be adjudged to pay any deficiency which may remain after applying all of said money so applicable thereto, and that the plaintiff may have such other, further or different relief in the premises as shall be just and equitable. Charles Carter, Attorney for Plaintiff. Office & P. 0. Address, &c. (Verification.) The lispendens may be filed either with the complaint or afterwards, but not before (§ 1670). Although the lispendens may be filed at any time up to 20 days before the final judgment (§ 1631), it is advisable that it be filed with the summons and complaint. The following is a notice of pendency of action. ACTIONS RELATING TO REAL PROPERTY 333 Supreme Court of New York, County of New York. Andrew Atkins, Plaintiff, against Benjamin Beistow, and Bertha Bristow, his wife, Peter Per- kins, Quintus Question, Ralph Rollins, and Sylvanus Still- well, Defendants. Notice is hereby given that an action has been commenced and is pending in this court upon a complaint of the above named plaintiff against the above named defendants for the foreclosure of a certain mortgage bearing date the day of , 19 , made and executed by Peter Perkins to the plaintiff to secure the payment of the sum of Ten thousand dollars on the day of , 19 , with interest at the rate of five percentum per annum which said mortgage was duly recorded in the office of the Register of the City and County of New York on the day of , 19 , in Block Series (Mortgages) Section , Liber , page , and indexed under Block Number on the Land Map of the City of New York. ' . The premises affected by the said action of foreclosure are, at the time of the filiag of this notice, situate in the Borough of Manhattan, in the City, Coimty and State of New York and are described in the said mortgage as follows (insert description). Dated New York, the day of , 19 . Charles Carter, Attorney for Plaintiff. (Address.) The Clerk of the County of New York is hereby directed to index this notice to the names of all the defendants. Charles Carter, Attorney for Plaintiff. Next, the summons 'and complaint should be served. If a lispendens has already been filed, personal service 334 CODE PRACTICE IN NEW YORK of the summons must be made, or publication begun within sixty days thereafter (§ 1670). It will be recalled that personal service of the summons and complaint may now be made without the state and that it is not necessary to procure an order therefor (§ 438, subd. 5; § 443, subd. 3). Where no personal claim is made against a defendant (e. g., a lienor or tenant), there may be served upon him in lieu of a complaint, a notice setting forth the general object of the action, a brief description of the property and that a personal claim is not made (§ 423 ; see ante, pp. 56, 57). There is usually no defense to foreclosure actions and the parties almost invariably make default. Sometimes, however, a notice of appearance is served and in that case, notice of all subsequent proceedings must be given to the attorney for the party appearing. More frequently, a defendant will serve a notice similar to the following which it will be observed does not necessitate the giving of further notice, except as to the sale and any proceedings to obtain the application of surplus moneys where the property sells for more than the amount of the mortgage. Thus: Supreme Court of New York, County of New York. Andrew Atkins, Plaintiff, against Benjamin Bristow and Bertha Bristow, his wife, Peter Per- kins, QuiNTUs Question, Ralph Rollins and Sylvanus Still- well,* Defendants. Sib:— Please take notice tliat the defendant Quintus Question appears in this action and that I am retained aw attorney for him therein, and ACTIONS RELATING TO REAL PROPERTY 335 hereby waive notice of all further proceedings except notice of sale and surplus proceedings. Dated the day of , 19 . Yours, &c., To Charles Carter, Esq., Plaintiff's Attorney. Daniel Darling, Defendant's Attorney. (Address.) The time to answer having elapsed, and defendant being in default, plaintiff will make application for judg- ment and for an order of reference to compute the amount due. This motion is based on an "affidavit of regularity," such as the following: Supreme Court of New York, County of New York. Andrew Atkins, Plaintiff, against Benjamin Bristow and Bertha Bristow, his wife, Peter Per- kins, Qtjintus Question, Ralph Rollins and Sylvantjs Still- well, Defendants. State of New York, County of New York. Charles Carter, being duly sworn, deposes and says that he is the attorney for the plaintiff above named. This action was brought to foreclose a mortgage upon real property, situated in the Borough of Manhattan in the City and County of New York, executed by the defendant Peter Perkins to the plaintiff and bearing date the ^ay Qf , 19 , given to secure the payment of the sum of $10,000 principal, on the day of , 19 , which was recorded in the office of the Register of the County of New York on the day of , 19 > in Block Series (Mortgages) 336 CODE PRACTICE IN NEW YORK section , liber , page , and indexed under Block number on the Land Map of the City of New York. The whole principal sum secured by said mortgage, to wit, the said sum of Ten thousand dollars, is now due and payable with interest at the rate of per- centum per annum from the day of , 19 . The summons and complaint were filed in the office of the Clerk of the County of New York on the day of , 19 , and a notice of the pendency of this action containing correctly and truly all particulars required by law to be stated in such notice was filed in the office of the said clerk on the day of , 19 . Since the fifing of said notice of pendency of action, the complaint herein has not been amended in any maimer whatsoever (if same has been amended, so state). This action was commenced by the personal service of a summons • and a copy of the complaint on the defendant Peter Perkins within the State of New York on the day of , 19 , as appears by the affidavit of Nicholas Noyes, sworn to the day of ,19 , and hereto annexed (or "filed in the office of the Clerk of this court on the day of , 19 "). Each and all of the other defendants herein have been duly personally served with a summons and a copy of the complaint within the State of New York as follows: Benjamin Bristow and Bertha Bristow, his wife, on the day of , 19 ; Quintus Question on the day of , 19 ; Ralph Rollins on the day of , 19 ; Sylvanus StUlwell on the day of , 19 , all of which appears by the said affidavit of Nicholas Noyes, sworn to as aioresaid (or if by separate affidavits, so state, describing them). None of the defendants have appeared in this action. (Specify any excepti-ns as "except the defendant Quintus Question who has ap- peared by Daniel Darfing, Esq., his attorney, and waived notice of all further proceedings, except notice of sale and surplus proceedings, a copy of which notice of appeara;ice and waiver is hereunto annexed") and none of the defendants have answered or demurred to the com- plaint; that more than twenty days have elapsed since the due service of the summons and complaint herein upon each of said defendants and the time of each and every defendant to answer or demur to the said complaint has expired; that same has not been extended by stipulation or otherwise and each and every defendant is now in default. All of the defendants herein are of full age and none of said defendants are absentees. All proceedings have been regular and in accordaoace with statute and the rules and practice of this court. ACTIONS RELATING TO REAL PROPERTY 337 This affidavit is made for the purpose of obtaining judgment for the relief demanded in the complaint and for an order referring the matter to some suitable person as referee to ascertain and compute the amount due to the plaintiff for principal and interest on the bond and mortgage set forth in the complaint. No previous application therefor has been made. Sworn to before, &c. Charles Carter. With the affidavit of regularity there is, of course, sub- mitted a judgment and order of reference as follows: At a Special Term of the Supreme Court of New York, held in and for the Coimty of New Yosk at Part thereof in the Covmty Court House in the Borough of Manhattan, in the City of New York on the day of ,19 . Present — Hon. Edward Evans, Justice. Andrew Atkins, Plaintiff, against Benjamin BrisTow and Bertha Bristow, his wife, Peter Per- kins, QuiNTus Question, Ralph Rollins and Stlvanus Still- well, Defendants. On the summons and complaint herein and the notice of pendency of action (recite papers, describing them by date and date of filing) and on reading and filing the affidavit of Charles Carter, Esq., sworn to the day of , 19 ; from which it appears that this action was brought to foreclose a mortgage on real property sit- uated in the Borough of Manhattan in the City and County of New York and that the whole amount secured by said mortgage is now due and payable, and it further appearing that each and all of the defend- ants have been duly personally served with the summons and com- plaint more than twenty days since; that the time to answer has ex- 338 CODE PRACTICE IN NEW YORK pired as to each and all of the said defendants and that no answer or demurrer has been interposed by any defendant and that none of the said defendants have appeared herein (state any exceptions), and that all of said defendants are in default, and that none of the said defend- ants is an infant or an absentee, and it further appearing that a notice of the pendency of this action containing correctly and truly all the particulars required by law to be stated in such notice was filed in the office of the Clerk of the County of New York on the day of , 19 , and it appearing that since the filing of said notice of pendency of action, the summons and complaint herein has not been amended by making new parties to the action or so as to affect premisesnot described in such notice, and that none of the de- fendants is entitled to notice of this motion (or if notice has been given insert "and on reading and filing the notice of this motion with proof of due service thereof on the only parties en- titled to the said notice") now on motion* of Charles Carter, Esq., attorney for the plaintiff, it is Ohdeebd that this motion be and the same hereby is in all respects granted and that plaintiff have judgment for the relief demanded in the complaint with $10 costs and it is further Obdeeed that this action be and it hereby is referred to Mortimer May, Esq., counselor at law, of No. street in the Borough of Manhattan in the City of New York to compute the amount due to the plaintiff herein on the bond and mortgage men- tioned in the complaint (if any of the defendants are infants or ab- sentees there should here be inserted " and to take proof of the facts and circumstances stated in the complaint and to examine plaintiff or his agent on oath as to any pajonents which have been made"), and that on the coming in of the referee's report, the plaintiff have the usual judgment of foreclosure and sale and for costs and an extra allowance without further notice and that said referee make his report to this court with all convenient speed. Enter, E. E. J. S. C. In preparing the foregoing affidavit and order, counsel should carefully comply with Rule LX. The name of the referee will be inserted by the court as neither the ref- eree to compute nor to sell can be nominated by a party to the action nor by his counsel (Rule LXI). ACTIONS RELATING TO REAL PROPERTY 339 The order having been signed, a certified copy is served upon the referee with notice of entry. Service should also be made upon all parties who have appeared and made demand. The hearing is then brought on by a, referee's summons as follows: Supreme Court of New York, County of New York. Andrew Atkins, Plaintiff, against Benjamin Bristow and Bertha Bristow, his wife, Peter Per- kins, QuiNTUs Question, Ralph Rollins and Sylvanus Still- well, Defendants. By virtue of an Order in the above action, made by Hon. Edward Evans, one of the Justices of the Supreme Court of New York, I, Mortimer May, the Referee appointed in this action, do hereby sum- mon you, to appear at my office No. street in the Borough of Manhattan in the City of New York on the day of , 19 , at o'clock in the noon, to attend a hearing of the matters in the said action, in reference be- fore me, as such Referee, pursuant to said order. And hereof fail not at your peril. Dated the day of in the year one thousand nine hundred and Mortimer May, Referee. To (Insert names of attorneys or parties to whom notice is given.) Underwriting: To compute and ascertain the amount due to the plaintiff for prin- cipal and interest upon the Bond and Mortgage set forth in the plain- tiff's complaint which is filed in this action. Mortimer May, Referee. At the hearing before the Referee, he takes the proper oath, the bond and mortgage, with any assignments. 340 CODE PRACTICE IN NEW YORK are produced together with receipted bills for taxes, assessments and water rates, if the mortgagee has paid them, and after hearing such testimony as may be re- quired, he computes the amount due. He then signs the report which is usually prepared in advance by the attorney for the plaintiff. The report is then filed and notice of filing and of motion for final judgment is served upon those parties who have appeared and made demand. With the notice of motion there should be served a copy of an affidavit of regularity setting forth in detail the steps previously taken. Upon the return day, there should be presented the certificate of the clerk that no ex- ceptions to the report have been filed within eight days. A final judgment is then entered directing the sale of the property or such part as is sufficient to discharge the mortgage debt, the expenses of the sale and the costs of the action (§ 1626). Thus: FINAL JUDGMENT OF FORECLOSURE AND SALE At a Special Term of the Supreme Court of New York in and for the County of New York, held at Part thereof in the Coimty Court House in the Borough of Manhattan in the City of New York on the day of , 19 . Present — Hon. Edward Evans, Justice. Andrew Atkins, Plaintiff, Benjamin Bristow and Bertha Bristow, his wife, Peter Per- kins, QuiNTus Question, Ralph Rollins and Sylvantjs Still- well, Defendants. On the summons and complaint in this action filed in the office of the Clerk of this Court on the day of , 19 , (recite ACTIONS RELATING TO REAL PROPERTY 341 other papers and proceedings showing that the procedure has been regular). Now on motion of Charles Carter, Esq., attorney for the plaintiff, it is Ordered, Adjudged and Decreed that the said referee's report be and the same hereby is in all respects ratified and confirmed and it is further Ordered, Adjudged and Decreed that' the mortgaged premises de- scribed in the complaint in this action hereinafter set forth, or so much thereof as may be sufficient to discharge the said mortgage debt, the expenses of the sale and the costs of this action as provided by § 1626 and § 1676 of the Code of Civil Procedure and which may be sold separately without material injury to the parties interested, be sold at public auction at the Real Estate Exchange Sales Room Nos. 14 and 16 Vesey Street in the Borough of Manhattan in the City of New York by or under the direction of Mortimer May, Esq., who is hereby appointed referee for that purpose; that said referee give public notice of the time and place of such sale according to law and the course and practice of this court and publish notice of such sale pursuant to § 1678 of the Code of Civil Procedure in the New York Law Journal and the New York Sun, daily newspapers published in the County of New York, said notice of sale to contain a description of the property to be sold, to conform in all respects to the description set forth in this judgment; that the plaintiff or any other party to this action may become a purchaser or purchasers on such sale; that said referee execute to the purchaser or purchasers on such sale a deed or deeds of the premises sold; that such referee on receiving the proceeds of sale, forthwith pay therefrom all taxes, assessments and water rents which are or may become liens on the premises at the time of sale as provided in § 1676 of the Code of Civil Procedure aforesaid; that the said referee then deposit the balances of such proceeds of sale in the Union Trust Company and shall thereafter make the following pay- ments and his checks drawn for such purposes shall be paid by the said depository. First: The sum of $50 to the said referee, being his fees herein. Second: Advertising expenses as shown on the bills presented and certified by the said referee to be correct, duplicate copies of which shall be left with the said depository. Third: Said referee shall also pay to the plaintiff the sum of dollars, adjudged to the plaintiff for his costs and disbursements in this action with interest thereon from the date hereof together with 342 CODE PRACTICE IN NEW YORK an additional allowance of dollars hereby awarded to the plaintiff in addition to costs, with interest thereon from the date hereof and also $10,250, the amount so reported due as aforesaid, together with the legal interest thereon from the date of said report or so much thereof as the purchase money of the mortgaged premises will pay of the .same and that he take a receipt therefor and file it with his report of sale. Fourth : If such referee intends to apply for a further allowance for his fees, he may leave upon deposit such amount as will cover such additional allowance to await the further order of the court thereon, after application duly made. Fifth: He shall deposit the surplus money, if any, with the Cham- berlain of the City of New York within five days after he receives the same, to the credit of this action to be drawn only on the order of this court, signed by a justice of this court, and it is further Ordered, Adjudged and Decreed that said referee make a report of such sale and file it with the clerk of the County of New York with all convenient speed and that the purchaser or purchasers at such sale be let into possession on production of the referee's deed or deeds; that if the proceeds of such sale be insufficient to pay the amount so reported due to the plaintiff with interest and costs as aforesaid, said referee specify the amount of such deficiency in his report of sale and that the defendant, Peter Perkins, pay the same to plaintiff and that said plaintiff have execution therefor, and it is further Ordered, Adjudged and Decreed that in case the plaintiff shall become the purchaser of the premises directed to be sold as aforesaid, at an amount equal to or less than the amount due under the judgment, with costs, allowances and expenses, the payment bj"- the plaintiff to said referee of the Sum bid by him for said premises or any portion thereof, is hereby dispensed with and that plaintiff shall be given due credit and allowance by said referee for the amount due him as afore- said; and the plaintiff before the delivery of the referee's deed to him shall pay the referee's fees and expenses of the sale and the costs and allowance as above provided, and also the taxes, assessments and water rents which may be a hen on said premises at the date of such sale, unless said premises are sold subject to such taxes, assessments and water rents, and it is further. Ordered, Adjudged and Decreed that each and all of the defendants in this action and all persons claiming under them after the filing of such notice of the pendency of this action, be and they are hereby for- ever barred and foreclosed of all right, claim, lien, title, interest and ACTIONS KELATING TO REAL PROPERTY 343 equity of redemption in the said mortgaged premises and each and every part thereof. v The following is a description of said mortgaged premises (Here insert description of property). Enter, E. E. J. S. C. In preparing the judgment, Rule LXI should be followed carefully. A form was adopted by the First Department on October 13, 1910. When the judgment and order of reference is handed to the court, the name of the referee, the amount of extra allowance and the amount of costs shoiild be left blank. The court wUl fill in the first two. The clerk then taxes costs and fills in the third blank. The judgment roll should then be filed and a copy of the judgment served upon the referee with notice of entry and on aU parties who have appeared and demanded service. The referee (or usually this work is done by the attorney), causes a notice of sale to be published as directed in § 1678. By Rule XV of the Special Term, First District, a diagram of the property must be pub- lished together with a statement of the amount of the liens, taxes, assessments, etc. Notice of sale is then served on all parties entitled thereto, plaintiff's attorney usually obtaining a number of printed shps from the newspapers for such purpose. The sale is then had and the property struck off to the highest bidder. The referee will require ten per cent of the purchase price to be paid at the time of sale, although if plaintiff pm-chases, this may be waived. The purchaser pays also the auctioneer's fees. The terms of sale may state the time when and place where title is to be closed, or this may be matter of arrangement with the purchaser. The balance having been paid, the referee gives a deed 344 CODE PRACTICE TN NEW YORK (see § 1632, Rule LXIII) and signs a report of sale which is usually prepared for him by plaintiff's attorney. This report must be filed within thirty days after the sale is completed, and the referee files with it the vouchers of persons to whom payments were ordered to be made (§ 1633). In New York City, he pays any surplus over to the City Chamberlain, elsewhere to the County Treas- urer, within five days (Rule LXI) except in certain cases where the property is liable to be applied to the payment of a decedent's debts, &c., when the surplus must be paid into the Surrogate's Court (§§ 1633, 2701 et seq.). Notice of filing and of motion is given to the proper parties and upon proof thereof and the production of the clerk's certificate of no exceptions filed, an order is made confirming the referee's report as follows: At a Special Term of the Supreme Court of New York held in and for the County of New York, at Part thereof, at the County Court House, in the Borough of Manhattan, New York City, on the day of , 19 . Present — Hon. Edward Evans, Justice. Andrew Atkins, Plaintiff, Benjamin Bristow and Bertha Bristow, his wife, Peter Per- f kins, Quintus Question, Ralph Rollins and Stlvanus Still- well, Defendants. Upon the report of sale of Mortimer May, Esq., Referee, made in this action and filed in the office of the Clerk of this Court on the day of J 19 , and the papers annexed to and filed with said report, and on reading and filing the notice of filing said report and of this motion with due proof of service thereof on all parties en- ACTIONS RELATING TO REAL PROPERTY 345 titled to such notice, and upon proof that no exceptions to said report have been filed, although the time for so doing has expired. Now on motion of Charles Carter, Esq., attorney for the plaintiff, it is Ordered and adjudged that the said report of sale of said Mortimer May, Esq., Referee, be and the same hereby is in all respects con- firmed. Enter, E. E. J. S. C. The Code makes special provision for cases where only a portion of the principal or interest is due. Here the defendant may have the complaint dismissed upon pajdng into court at any time, before a final judgment directing sale is rendered, the sum due with costs (§ 1634). After final judgment and before sale, he may secxire a stay on like terms but upon a subsequent default the court may make an order directing enforcement of the judgment for the amount then due (§ 1635). If the property can be sold in parcels without injury to the interests of the parties, the final judgment must direct that no more be sold than is sufficient to satisfy the amount then due with costs and expenses and upon a subsequent default, the sale of the residue may be directed (§ 1636). But a sale of the whole will be directed if most beneficial and the proceeds after deducting costs and expenses, are either apphed to the satisfaction of the whole sum with a rebate of interest or to the payment of the sum due and so much of the balance as is necessary, invested for plaintiff's benefit to be paid to him from time to time as any part of the principal or interest becomes due (§ 1637). Surplus Proceedings. As already mentioned, where / / the real property sold to satisfy a mortgage or other hen is liable to be disposed of for the purpose of paying a decedent's debts, funeral and other expenses, legacies, &c. (under §§ 2701 et seq.), the surplus moneys are paid 346 CODE PRACTICE IN NEW YORK into the Surrogate's Court (1), where eighteen months have not elapsed from the^ issuance of letters testamentary or of administration; (2), where a proceeding for a judicial settlement of the executor's or administrator's accounts has been commenced within eighteen months and is pending; (3), where no letters have been issued and two years have not elapsed since decedent's death (§ 1633). In other cases, the surplus moneys are paid into court (§ 1633) which means that in New York City they are paid to the Chamberlain and elsewhere to the County Treasvirer (Rule LXI). The procedure to be adopted by a junior lienor or other party to obtain payment out of this surplus is governed by Rule LXIV. The practice is to file a notice of claim with the clerk where the report of sale is filed. An appU- cation may then be made for the appointment of a referee to ascertain the amount due and the priorities of the different hens. Notice must be given to the owner of the equity of redemption and to every party who appeared in the foreclosure action or who filed a notice of claim with the clerk. An order of reference is usually granted, although the practice is not uniform since some justices refuse to appoint referees and require the matter ta be brought on at Special Term, a practice which saves time, money and considerable labor and is therefore to be commended. The hearing is had before the referee on notice and he renders his report. This report is filed, a motion for confirmance made and an order of confirmance is entered directing the Chamberlain or County Treasurer to pay the claims in the order of priority. (B) Foreclosure hy Advertisement. This method is rarely resorted to and is decidedly imsafe, since the proceedings are scrutinized very closely and the code sections strictly construed. "The statute is precise and must be followed with precision" (Deutsch v. Haab, 135 ACTIONS RELATING TO REAL PROPERTY 347 App. Div. 756, 758). The most that can be said for it is that the proceedings being simpler, the method is more economical (for a history of foreclosure by advertisement see Mowry v. Sanborn, 68 N. Y. 153). A recorded mortgage may be foreclosed in this manner where it contains a power of sale, default has been made and action has not been brought to recover the debt, or if brought, has been discontinued or final judgment rendered against plaintiff or if rendered in his favor, an execution has been returned unsatisfied (§ 2387) . Notice that the mortgage will be foreclosed by sale at a specified time and place must be published, posted, deUvered to the county clerk and served upon the mortgagor and parties interested (§§ 2388-2391). The sale is at public auction (§ 2393) and the mortgagee may purchase (§ 2394). Affidavits stating the particulars of the sale, publication, posting and service are (§ 2396), or one affidavit con- taining all these matters (§ 2397) is filed and recorded (§ 2398). 6. Action to Determine a Claim to Real Property. This "is in its essential nature an action to quiet title, and one of which the Courts of Chancery had original jurisdiction to a quaUfied extent. The only difference between the equitable action and this action for the determination of the claims to real property is found in the fact that, after this action has been commenced, the law permits the defendant who is brought in as a claimant to set up his own title and to demand affirmative relief, as in an action of ejectment; and it provides that, when that has been done, if the defendant asks for affirmative relief, the subsequent proceedings, including the trial, judgment and execution, are the same if it were an action of ejectment. If, however, the defendant makes no claim for affirmative relief, the action proceeds precisely as in 348 CODE PRACTICE IN NEW YORK any other action to quiet title, and is tried on the equity side of the court at a special term and without a jury" (King V. Ross, 28 App. Div. 371, 373; appeal dismissed 156 N. Y. 681). Under § 1638, therefore, where a person has been or he and those whose estates he has, have been in possession for one year, claiming in fee, for Ufe or a number of years, not less than ten, he may maintain an action against any other person to compel the determination of an adverse claim (§ 1638). Section 1639 prescribes the essential allegations of the complaint. A strict compliance with its provisions is essential. Defendant may put in issue plaintiff's title and if he succeeds, final judgment is rendered in his favor dismiss- ing the complaint (§ 1640) ; or he may plead facts show- ing that he has an estate in the property or any part, ad- verse to plaintiff, in fee, for life, or for a term of years not less than ten, in possession, reversion or remainder, or that he has an interest or easement, hen or incumbrance (§ 1641) . If he claims an estate, the subsequent proceed- ings, as already stated, are the same as in an action of ejectment. If he claims an interest, easement, lien or incumbrance, they are the same as though it were an action brought by defendant to estabUsh or enforce the right (§ 1642). If he claims an estate in remainder or reversion, he need not estabhsh a right to immediate possession; but if the verdict, report or decision is in his favor, it must specify the time when or contingency upon which he wUl be entitled to possession and final judgment wUI be rendered accordingly (§ 1643). Where the final judgment determines that defendant is entitled to im- mediate possession, it must award possession accordmgly and may also award damages for the withholding as in ejectment (§ 1644). If plaintiff recovers final judgment, it must be to the ACTIONS RELATING TO REAL PROPERTY 349 effect that defendant and every person claiming under him by title accruing after the filing of the judgment roll or Hspendens be forever barred from all claim and the court may direct that any instrument purporting to create any particular interest, easement, hen or incumbrance be dehvered up to be canceled of record (§ 1645). A final judgment in favor of either party is conclusive against the other as to the title estabUshed in the action and also against every other person claiming from, through or under him by title accruing after the filing of the judgment roU or hspendens. A new trial, however, may be granted in the court's discretion upon application made within one year and where a defendant is under a disabiUty, he may apply within one year after its termination which apphcation may made by his representatives within one year after his death, if such death occurs whUe the disa- biUty continues (§ 1646). It has already been said (see supra, p. 327), that ordi- narily an action for dower must be commenced by a widow within twenty years after the death of her hus- band. By § 1647, a person claiming as owner in fee, for life or for years may bring an action against a woman claiming to have a right of dower, to compel the deter- mination of her claim, though this cannot be done until after the expiration of four months from the husband's death. If the complaint admits the right of dower it must demand judgment that the dower be admeasiu-ed and if the widow-defendant does not allege facts showing that she is entitled to a greater right of dower or another estate or interest than is admitted, the court must render an interlocutory judgment directing an admeasurement. The subsequent proceedings are then the same as in dower actions (§ 1648). Where plaintiff insists in his complaint that defendant has not a right of dower, he must demand judgment that she be forever barred. In that case, or 350 CODE PRACTICE IN NEW YORK where plaintiff admits a right of dower in defendant and defendant demands judgment for a greater right of dower, or another estate or interest than is admitted, the pro- ceedings are the same as in an ordinary action to de- termine a claim (§ 1649). 7. Action for Waste. "Waste is an unlawful act or omission by the possessor of a particular estate in real property which tends to de- stroy or lessen the value of the inheritance" (Chapin on Torts, p. 389). It is voluntary or permissive. The former consists in destructive acts. The latter is an omission to prevent injury, as to suffer a building to fall into decay for want of repairs. It "imphes neghgence which may consist either of acquiescence in or assent to the acts of strangers or failure to prevent such acts, or to do that which is incumbent upon the party in possession as matter of good husbandry" (Beekman v. Van Dolsen, 63 Hun, 487, 490). The Code provides specifically for the following actions: (a) Against a tenant by the curtesy, in dower, for life or for years or the assignee of such a tenant or against such a tenant who lets or grants his estate and stiU re- taining possession, commits waste (§ 1651) ; (b) by an heir or devisee for waste committed in the time of his ancestor or testator, as well as in his own time, and by the grantor of a reversion for waste committed before he aliened (§1652); (c), by a ward against his guardian (§ 1653); (d), by the grantee of real property sold under execution for waste committed after the sale, agaiast the person then in possession (§ 1654); (e), by a joiat tenant or tenant in common against his co-tenant (§ 1656). Except in the last case, if the plaintiff recovers, the final judgment must award treble damages, and when the action is brought by the person next entitled to the re- ACTIONS RELATING TO REAL PROPERTY 351 version and it appears that the injury to the reversionary- estate is equal in value to the tenant's estate or unexpired term or that it was done maUciously, the final judgment must also award to plaintiff the forefeiture of the de- fendant's estate and possession of the place wasted (§ 1655). Where the action is by the joint tenant or tenant in common, if he recovers judgment, he is entitled to his election, either to final judgment for treble damages or to have partition of the property with single damages (§§ 1656-1658). In an action for waste, whUe a view of the property is not necessary, it may be had or directed (§ 1659). Reference may also be made to § 1681 already mentioned (see supra, p. 314), under which an order restraining waste may be granted during the pendency of any action re- lating to real property (see also § 1442). 8. Action for a Nuisance. The Code merely provides generally that an action for a nuisance may be maintained where it might previously have been maintained; that a person by whom the nui- sance has been erected and a person to whom the real property has been transferred may be joined as defendants and that a final judgment in plaintiff's favor may award damages or direct removal or both (§§ 1660-1662). The article concludes with the statement that it does not affect an action wherein the complaint demands judg- ment for money only (§ 1663). In explanation of these sections, it may be said that at common law, damages might be recovered in an action on the case and with the added remedy of abatement might be obtained by "writ of nuisance." This writ of nuisance has been aboUshed and the foregoing substi- tuted (Hadcock V. City of Gloversville, 96 App. Div. 130). Hence there would seem now to be three remedies: 352 CODE PRACTICE IN NEW YORK First, the statutory action under § 1660 where damages or removal or both may be obtained; second, the common law~ action for damages only; third, an action in equity wherein the plaintiff in addition to equitable reUef by in- jimction, may seek damages. The form of action may be of some importance since if plaintiff elects to proceed in equity he naturally waives the right to a jury trial under § 968 (CogsweU v. N. Y., N. H. & H. R. R. Co., 105 N. Y. 319). But where an equitable suit for an injunction is brought and the case is later shorn of all its equitable features, leaving nothing but a claim for damages, as where in an action by a lessee it appears that the lease has ex- pired and the premises were vacated prior to the trial, defendant is entitled to a jury trial unless he has waived (McNulty V. Mt. Morris El. Light Co., 172 N. Y. 410; Tucker v. Edison Elec. 111. Co., 100 App. Div. 407; Green- blatt V. Zimmerman, 132 App. Div. 283; but see Miller v. Edison Elec. 111. Co., 184 N. Y. 17). 9. Other Actions Relating to Real Property. Under this head, the Code groups certain miscella- neous actions. Thus: A person in possession as guardian or trustee for an infant or having an estate deterniinable upon one or more lives, who holds over and continues in possession after the determination of his trust or particular estate with- out the express consent of the person then entitled, is a trespasser and ah action may be brought by the latter to recover the value of profits received during the wrongful occupation (§ 1664; see Livingston v. Tanner, 14 N. Y. 64, holding that under the statute then in force which was similar to the foregoing, a life tenant holding over becomes a trespasser and not a tenant at sufferance. Hence he is not entitled to notice to quit. Cf. Real Prop. Law, §§ 228, 230). ACTIONS RELATING TO REAL PROPERTY 353 A remainderman or reversioner may maintain an ac- tion foimded upon an injury done to the inheritance not- withstanding any intervening estate for life or years (§ 1665; Thompson v. Manhattan Ry. Co., 130 N. Y. 360). A joint tenant or tenant in common may sue to recover his just proportion against his co-tenant who has re- ceived more than his own just proportion (§ 1666; Gedney V. Gedney, 160 N. Y. 471). An action may be maintained for unlawfully cutting down and carrying off or despoiling trees (§ 1667) and in certain cases which, generally speaking, are where the act is maUcious, treble damages may be awarded (§1668). Section 1669 requires a word of explanation. It pro- vides that "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 wrongdoer." It is, of course, elementary that "the true owner of land wrongfully held out of possession may watch his oppor- tunity, and if he can regain possession peaceably may maintain it, and lawfully resist an attempt by the former occupant to retake possession, nor will he be liable to be proceeded against under the statute of forcible entry and detainer" (BUss v. Johnson, 73 N. Y. 529, 534). But he cannot resort to force, for under § 2233, an entry is al- lowed only where entry is given by law "and in such a case only in a peaceable maimer, not with strong hand, nor with multitude of people." This follows almost ver- batim the statute of 5 Richard II chapter 8, and § 2034 of the Penal Law makes the use of force or violence in entering upon or detaining lands a misdemeanor, but to make it a case of forcible entry, the entrant must have gone upon premises which were in the actual possession of another. A mere trespasser acquires no possession and 354 CODE PBACTICE IN NEW YORK may be removed. So a master may remove his servant or a principal his agent, since the possession of the servant or agent is the possession of the master or principal (Bristor v. Burr, 120 N. Y. 427; Kerrains v. People, 60 N. Y. 221). 10. Perpetuation of Testimony. The deposition taken de bene esse has already been dis- cussed (see supra, p. 179). Sections 1688a-1688i, make special provision for the perpetuation of testimony and its admission in actions or proceedings involving a question as to title. The applicant or those under whom he claims, must have been for one year in possession of the property or of an undivided interest, claiming in fee, for life or for a term of years not less than ten (§ 1688d) . His petition sets forth a description of the property, the estate of the petitioner, the circumstances renderiag it necessary to perpetuate the testimony &c. (§ 1688e). A referee may be appointed (§§ 1688f, 1688g). The deposition when completed must be read and subscribed by the person examined, certified to by the referee and within ten days must together with the petition, order and proof of serv- ice of notice be filed with the county clerk and such deposition must be recorded (§ 1688h). It may be read in evidence by any party to an action or proceeding in- volving the title to the real property as against the person on whose petition it was taken, each person to whom notice of the taking was given and all persons claiming under them (§ 1688i). The court must first be satisfied that the witness is dead or 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 attend- ance cannot with reasonable diligence be compelled by sub- poena or his testimony taken by commission (§ 1688a). The same objections as to competency or relevancy may be made as if the witness were personally examined (§ 1688c). CHAPTER XVI ACTION TO. RECOVEE A CHATTEL (REPLEVIN) 1. When Maintainable. 2. Pleadings. 3. Verdict, Report, Decision and Judgment. 1. When Maintainable. Here the plaintiff seeks possession of personal property. "The action to recover a chattel, as regulated by the Code of Civil Procedure, is substantially 9, substitute for the action of replevin as it had previously existed" (Griffin V. Long Island R. Co., 101 N. Y. 348, 352), but the old term has survived in common usage. Plaintiff must show a right to possession (Wood v. Orser, 25 N. Y. 348). It is also the general rule that defendant must have either actual or constructive possession, and here there is con- siderable conflict of opinion as to whether an exception can be admitted where defendant has wrongfully parted with possession. It was finally settled by the Court of Appeals, however, that one in possession of property with- out right cannot avoid the action of replevin by wrong- fully transferring the property to another even though before suit brought (Nichols v. Michael, 23 N. Y. 264; Popper V. Seuffert, 147 App. Div. 371, 373, citmg 34 Cyc. 1398).' An action cannot be maintained (a), where the chattel was taken by virtue of a warrant against plaintiff for the collection of a tax, assessment or fine, issued pursuant to a state or federal statute, unless the taking was unlawful by reason of defects in the process or other causes speci- fied, or the detention is imlawful by reason of facts which 355 356 CODE PRACTICE IN NEW YORK subsequently occurred; (b) where it was seized under an execution or attachment, against plaintiff, unless it was legally exempt or its detention was unlawful by reason of facts which subsequently occurred; (c), where it was seized under an execution or attachment against a person other than the plaintiff and at the time of the commencment of the action, plaintiff had not the right to reduce it to possession (§ 1690; Depew v. Beakes, 16 App. Div. 631). Where a chattel is replevied and final judgment awards possession to defendant, plaintiff cannot maintain a sub- sequent action to recover the same chattel for the same cause of action. But the judgment does not affect his right to maintain an action to recover damages for the taking or detaining, unless rendered against him on the merits (§ 1691 ; Commerce Exchange Natl. Bank v. Blye, 123 N. Y. 132) . An assignee who has acquired title since the wrongful taking or during the wrongful detention, may maintain replevin where such an action could have been maintained by the transferrer (§ 1692). There has already been discussed under the head of provisional remedies, the plaintiff's right to replevy a chattel during the pendency of the action and have it held to abide the final determination (see supra, p. 142). The plaintiff, how- ever, is not required to replevy prior to judgment and his failure to do so does not affect his right to proceed (§ 1718). Where plaintiff has replevied part only of two or more distinct chattels specified in the complaint, he may serve a notice that he abandons so much of his claim as relates to those not replevied, and thenceforth the action pro- ceeds as if it had been brought to recover only the replev- ied chattels (§ 1719). 2. The Pleadings. Provision is made for abbreviated pleadings. Thus an allegation that the party pleading or a third person was ACTION TO RECOVER A CHATTEL (REPLEVIN) 367 at the time when the action was commenced or the chattel was replevied, 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 possession 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 a right to possession (§ 1720). In other words, an allegation of ownership is to be treated as an allegation of fact, e. g. : That at the time of the commencement of this action, plaintiff was the owner and was entitled to the immediate possession of the following chattels, &c. But a simple allegation that he has a special property right is a conclusion. He must here set forth the facts. Under § 1721, plaintiff need only allege that the defend- ant wrongfully took the chattel without setting forth facts showing that the taking was wrongful. But where the taking is not complained of, and the action is founded on a wrongful detention the complaint must set forth facts showing that the detention was wrongful. Thus an allegation of wrongful taking is treated as one of fact but an allegation of wrongful detaining is a conclusion. It is an estabhshed principle that defendant in an action for conversion may plead the jus tertii as against one in possession, only when he connects himself there- with (Wheeler v. Lawson, 103 N. Y. 40). But it was otherwise in a replevin action based upon the wrongful detention, which under the common law system was styled replevin in the detinet (Griffin v. Long Island R. Co., 101 N. Y. 348; Siedenbach v. Riley, 111 N. Y. 560). Now, under § 1723, "defendant may by answer defend on the ground that a third person was entitled to the chattel, without connecting himself with the latter 's title." Where the defense is that the chattel was distrained 358 CODE PRACTICE IN NEW YORK damage feasant, an allegation that defendant or the person by whose command he acted, was then lawfully possessed of the real property and that the chattel was distramed while doing damage thereupon is sufficient, without set- ting forth the title to the real property (§ 1724). Where a chattel has been replevied, defendant may serve notice that he demands judgment for its return or for its value, either with or without damages for the detention and upon the trial a copy of such notice must be furnished to the court or referee (§ 1725) . 3. Verdict, Report, Decision and Judgment. The verdict, report or decision fixes the damages, if any, of the prevailing party and where it awards to plain- tiff a chattel which has not been replevied, or awards to the prevailing party a chattel which has been replevied and afterwards delivered to the unsuccessful party or to a person not a party, it must fix its value (§ 1726). But value shall not be fixed where the chattel was rightftdly distrained damage feasant and its value is greater than the damages sustained by defendant by the injury for which it was distrained, in which case those damages must be fixed; also where plaintff is the general owner but defendant has a special property and the value of the chattel is greater than the value of the special property or the sum charged on the chattel by reason thereof, in which case the value of the special property or the sum charged must be fixed. In both cases, there must be set forth the reason why the chattel's value is not fixed (§ 1727). Where an action is brought to recover two or more chattels, the verdict, report or decision may award one or more of them to one party and the residue to the other party (§ 1728) . In the event of default, the damages and the value of the chattel may be ascertained by the court or by reference or writ of inquiry (§ 1729). Final ACTION TO RECOVER A CHATTEL (REPLEVIN) 359 judgment must award possession with damages, if any, and if the chattel was not replevied or if after replevy, it was delivered to defendant or to one not a party (i. e., where there is a possibility that the chattel may not be delivered to plaintiff) it also awards the sum fixed as the value to be paid if possession is not delivered (§ 1730). CHAPTER XVII PARTICULAR ACTIONS 1. Matrimonial actions. (A) In general. (B) Annullment. (C) Divorce. (D) Separation. 2. Actions relating to decedents' estates. (A) By or against an executor or administrator. (B) By a creditor against next of kin, &c. (C) To establish or impeach a will. 3. Actions against and between joint debtors. 1. Matrimonial Actions. (A) In General. The so-called "matrimonial actions" are (1) to annul a marriage, (2) for divorce, and (3) for a separation. Under each head, there are certain provi- sions peculiarly applicable. In many respects, however, the procedure is similar and it appears logical to discuss at first, general sections covering two or mora actions. As will be seen hereafter, there are specific requirements with regard to the residence of the parties and by "res- idence" is of course, meant "domicile" (de Meli v. de MeH, 120 N. Y. 485). Ordinarily, the wife takes the husband's domicile, but by the general American doc- trine, she may acquire one of her own for the purpose of conferring jurisdiction on the proper tribunal in an action for divorce or separation (14 Cyc. 848; see Hunt v. Hunt, 72 N. Y. 217). Thus under § 1768, if a married woman dwells within the state when she commences an action of divorce or separation, she is deemed a resident, al- though her husband resides elsewhere. 360 PARTICULAR ACTIONS 361 As already stated (see supra, p. 56), in matrimonial actions where both the summons and a copy of the com- plaint were not personally served upon the defendant within the state, the summons must contain the following, 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,'" otherwise final judgment cannot be rendered in plaintiff 's favor upon defendant's default (§ 1774). The object, of course, is to prevent fraud and imposition. The affi- davit of service should show that when so required, the summons contained such statement (§ 1774) and by Rule XVIII it is also necessary to set forth what knowl- edge the affiant had of the person served being the de- fendant and how he acquired such knowledge. Usually the wife wishes to obtain a counsel fee from the husband so that she may carry on or defend the action, and alimony for her support and the maintenance of any children. Section 1769 in terms, restricts the right of the court, to make and modify an order for counsel fee and alimony pendente lite to actions for divorce and separation. But it has been held that it possesses a like power in actions of annulment, where the woman is the defendant (Higgins v. Sharp, 164 N. Y. 4), though not where she is plaintiff (Jones v. Brinsmade, 183 N. Y. 258). In the first case, the wife is before the coxirt in invitam and hence should be put in a position where she can present her side of the controversy. Since she asserts the validity of hex marriage and defends its vahdity, she may consistently invoke the power of the court to compel a provision for her maintenance and defense until the action has deteraiined the relation of the parties. On the other hand, if she is the plaintiff, the rule may well be appUed that he who elects to rescind a contract can claim nothing under it. 362 CODE PRACTICE IN NEW YORK Frequently a notice of motion is served along with the sUDimons and complaint, when the wife is plaintiff, though such motion may be made at any time while the suit is pending which must necessarily be the case when the wife is the defendant. The application may be made either by petition or affidavit (§ 968). The following is a form : Supreme Court of New York, County of New York. Bebtha Bbistow, Plaintiff, against Benjamin Bbistow, Defendant. To the Supreme Court of the State of New York. The petition of Bertha Bristow, the plaintiff above named, re- spectfully shows: First: That she is the plaintiff above named (insert if the action has already been started, " that on the day of ,19 , she did commence this action by the personal service of the summons and complaint upon the defendant as appears by the affidavit hereto annexed" or "on file," &c.). This action is brought for the purpose of obtaining a divorce from the said defendant, who is her husband (or state other purposes of the action) because of the adultery of the said defendant as appears by a copy of the said complaint hereunto annexed and which is made a part of this petition. (If defendant has answered, so state, giving nature of defense.) The deponent has a good cause of action against the said defendant as she is advised by her counsel, Charles Carter, Esq., who resides at and as she verily believes. (In actions for separation the facts, constituting abandon- ment, refusal to support, etc., should be set forth fully. Hyman v. Hyman, 119 App. Div. 182.) Second: That your petitioner is wholly destitute of the means of supporting herseff and her children during the pendency of this action or of carrjdng on the said action and defraying the expenses attending same. Third: Upon information and belief, that the said defendant has PARTICULAR ACTIONS 363 real estate and personal property to a large amount, and amply suffi- cient to enable him to advance thereout to your petitioner such sums as may be necessary for the purposes above mentioned, and specifically your petitioner is informed and believes that said real estate so owned by defendant consists of (describe it) and that the same is worth at least the sum of dollars, that said personal property con- sists of (describe it) and that the same is worth at least the sum of dollars, and that the said defendant is' engaged in the busi- ness of (describe it) and that his annual salary or income is at least the sum of dollars. That the grounds of deponent's information and the sources of her belief are as follows (insert them). Fourth : That the issue of the marriage of plaintiff and defendant is as follows (give names and ages) all of whom are living with the plaintiff. Fifth: That the said defendant is an unfit and improper person to have the care and custody of the said children for the following reasons (setting them forth). Wherefore your petitioner prays that the said defendant may by an order of this court be required to pay your petitioner a reasonable sum for her support and maintenance during the pendency of this action and such sum or sums of money as may be necessary to enable your petitioner to carry on this action and to defray the necessary costs and expenses thereof and to provide suitably for the education and maintenance of the said children of such marriage and for such other and further reUef as may be just and proper. Dated the day of , 19 . Bertha Bristow, Petitioner. (Verification.) Now since the court has the power to grant such relief, only to a wife, it is evident that the marriage must on the application either be admitted or if it is not admitted, proved to the satisfaction of the court. This does not mean, however, that it is necessary that the marriage be established as conclusively as would be required for the ultimate purposes of the action, but that plaintiff must make out a reasonably plain case (ColUns v. CoUins, 71 N. Y. 269; Brmkley v. Brinkley, 50 N. Y. 184). The wife must make out a prima facie case for divorce 364 CODE PRACTICE IN NEW YORK or separation and it is usual on contested applications to present supporting affidavits. Alimony and counsel fees will not be granted pendents lite where the plaintiff fails to show that there is a probability or reasonable ground for believing that she will be able to offer compet- ent evidence in support of the charges which she makes or to succeed in her action (Wood v. Wood, 61 App. Div. 96; Weigand v. Weigand, 103 App. Div. 42; Heyman v. Heyman, 119 App. Div. 182). But aUmony will not be refused merely because the husband denies her allegations (see Miers v. Miers, 35 Misc. 476; modified by reducing amount, 65 App. Div. 615). Alimony is granted to the wife when she is a defendant and denies the adultery under oath, almost as a matter of coiu-se. "It is well settled that the court wiU not try the merits upon conflicting affidavits. This rule, how- ever, is subject to qualification. ... If the undisputed or unexplained facts show that the wife has no reasonable hope of success in her defense, the court will not compel the husband to support her, even pending the action" (Steams v. Steams, 33 App. Div. 630; Miller v. Miller, 27 Misc. 758; Glaser v. Glaser, 36 Misc. 231). The moving papers should set forth facts showing the wife's inability to support herself and from which the court can determine the financial condition of the husband (Poillon V. Poillon, 75 App. Div. 536; Miller v. Miller, 27 Misc. 758). The fact that the wife has some separate property, while a circumstance to be considered in meas- uring the amount of the temporary alimony, does not necessarily bar her right (Merritt v. Merritt, 99 N. Y. 643). The Courts are inclined to exercise greater liberality in granting counsel fees than in allowing alimony. Thus the case may be one where she should be permitted to litigate her rights even though she may have been guilty PARTICULAR ACTIONS 365 of misconduct as where a defendant wife pleads adultery by the husband (Masey v. Masey, 58 App. Div. 619). Again, alimony has been denied and counsel fee granted where the wife was living at the husband's home and was being adequately supported (Smith v. Smith, 92 App. Div. 442). It may be observed parenthetically, that an agreement by a wife to compensate her attorney for his services in the action by giving him a percentage of the alimony recovered, is void as against pubUc poUcy (Matter of Brackett, 114 App. Div. 257). The court also may make provision for the custody, care, education and maintenance of any of the children (§1771). If the application is successful, an order is entered such as the following: At a Special Term of the Supreme Court of New York, in and for the County of New York, held at Part I thereof in the County Court House in the Borough of Manhattan in the City of New York, on the day of 19 . Present — Hon. Edward Evans, Justice. Bertha Bhistow, Plaintiff, against Benjamin Bbistow, Defendant. The plaintiff above named having moved for an order directing the defendant to pay alimony during the pendency of this action together with a counsel fee and said motion having duly come on to be heard on the day of , 19 . Now on reading the summons and complaint in this action filed in the office of the clerk of this court on the day of , 19 , (in courts where the summons and complaint need not be and has not been filed, insert: "Now on reading and filing," etc.), and on 366 CODE PRACTICE IN NEW YORK reading and filing the petition (or affidavit) of Bertha Bristow verified (or if an affidavit, "sworn to") the day of , 19 (recite any other affidavits) submitted in support of this motion, together with notice of this motion with proof of due service thereof, and the affidavits of (describing them) submitted in opposition thereto, and after hearing Charles Carter, Esq., of Counsel for the plaintiff in support of this motion and Daniel Darling, Esq., of Counsel for the defendant, in opposition, now on motion of Charles Carter, Esq., attor- ney for the plaintiff, it is ordered. First, that the defendant pay to the said Charles Carter, attorney for plaintiff, the sum of Three hundred dollars counsel fee within five days after the service of a certified copy of this order on defendant's attorney, and Second, that the defendant pay to the plaintiff the sum of Forty dollars per week for her support and the support of the children of the marriage, during the pendency of this action, from the commencement thereof, to wit, from the day of , 19 , and make said payments at the office of the plaintiff's attorney No. Street, in the Borough of Manhattan, New York, as fol- lows: within five days after the service of a certified copy of this order on defendant's attorney, the sum of One hundred and twenty dollars, being for the three weeks ending on the day of , 19 , and' the sum of Forty Dollars on each Wednesday of each week beginning on the day of , 19 . Third, that the said plaintiff shall have and retain during the pen- dency of this action, the custody, care, education and control of (naming them) children of the marriage (insert further directions, if necessary, concerning right of plaintiff to visit children, &c). Enter, E. E. J. S. C. The order for alimony and counsel fee may be enforced by sequestration and contempt proceedings as in the case of a final judgment, a point which will be considered later (§§ 1772, 1773). Defendant may, of course, deny the material allegations of the complaint and under § 1770, may likewise interpose as a counterclaim, a cause of action against plaintiff for di- vorce or separation. Thus in an action brought for a sepa- PABTTCULAR ACTIONS 367 ration on the ground of cruel and inhuman treatment, defendant may allege plaintiff's adultery and ask for a divorce (de Meh v. de Meli, 120 N. Y. 485). So, when an action is brought for separation on the ground of abandon- ment, the defendant may counterclaim cruelty and in- human conduct (Waltermire v. Waltermire, 110 N. Y. 183). In other words, the legislature intended to enable the parties to settle their whole controversy in one action (Mason v. Mason, 46 Misc. 361). By Rule LXXIV, de- fendant may plead plaintiff's adultery or any other matter which would be a bar to a divorce, separation or annul- ment. // defendant contests, the issues of fact in actions of annulment, except when founded upon an allegation of physical incapacity, and the issue of adultery in actions for divorce must be tried by a jury if one of the parties requires it, or the court may of its own motion direct such a trial (§§ 1753, 1757). In actions for a separation, a jury trial is not a matter of right (Packard v. Packard, 88 App. Div. 339) . If a reference is ordered in any of the matrimo- nial actions, the court must not appoint a referee nomi- nated by either party or agreed on by the parties. This is because of the danger of collusion. Furthermore, there must be preliminary proof by affidavit of the service of the summons and complaint. A notice of appearance and retainer will not be sufficient to excuse such proof (Rule IjXXII) . It should be noted that the reference is not to hear and determine, but is for the purpose of informing the conscience of the court, and hence it is necessary that the witnesses should subscribe their testimony as required by Rule XXX (White v. White, N. Y. Law Jour., Jan. 18, 1911, per Davis, J.; Jones v. Jones, N. Y. Law Jour., Jan. 28, 1911, per Blanchard, J.). The report with the testimony having been filed, either party may move for judgment thereon, since in matrimonial actions, judgment cannot 368 CODE PRACTICE IN NEW YORK be taken of course upon the report (§ 1229). The court, at special term after examining the testimony, may refuse to enter judgment on the ground that the conclusions are not sustained and send the case to another referee (Perkins V. Perkins, 130 App. Div. 193). In annulment and divorce actions, the report must be filed and interlocutory judg- ment entered within fifteen days after the party is entitled to do so, though permission may be given to file or enter after that time (§ 1774). As hereafter stated, an inter- locutory judgment is not entered in actions for separation. // defendant defaults, a reference cannot be ordered in actions for annulment or divorce but proof must be made "to the court in open court" (Rule LXXII) and neither in aimulment nor divorce nor in separation actions, can a judgment be entered of course (Rule LXXVI; §§ 1753, 1757). The practice therefore in matrimonial actions is as foUows : When defendant's time to answer has expired, plaintiff files with the clerk (in New York County with the clerk of Special Term, Part III), a note of issue to- gether with an affidavit of regularity of which the fol- lowing is a form: Supreme Court of New York, County of New York. Beetha Bristow, Benjamin Bristow, Plaintiff, Defendant. State of New York, County of New York. Charles Carter, being duly sworn, deposes and says that he is the attorney for the plaintiff above named. This is an action brought to obtain a divorce on the ground of adultery. The summons and com- plaint herein was sen'ed upon the defendant on the day of PARTICULAR ACTIONS 369 ,19 , as appears by the affidavit of Nicholas Noyes, sworn to the day of , 19 , and filed in the office of the clerk of this court on the day of , 19 More than twenty days have elapsed since the service of the sum- mons and complaint upon the defendant herein and said defendant has not appeared, answered or demurred to the complaint. No ex- tension of time in which to appear, answer or demur has been granted to said defendant and said defendant is now in default. Sworn to before me, &c. Chakles Cabter. The cause is then placed upon the calendar and called in its turn. At the hearing which is of course before the court without a jury, the plaintiff is required to prove his or her case (see Rules LXXII, LXXIII, LXXV, and LXXVI). Specifically what must be shown wiU be con- sidered later when the different actions are discussed. It is the practice to require the party making the service to testify how he knew the person served to be the de- fendant (Rule XVIII) and plaintiff's attorney testifies as to the fact of default. The testimony is then written out and submitted to the court and if the decision is in the plaintiff's favor, findings and conclusions are signed. FINDINGS AND CONCLUSIONS New York Supreme Court, County of New York. Bertha Bbistow, Plaintiff, against Benjamin Bristow, Defendant. This action having been brought to trial at a Special Term of the Supreme Court of New York, held at Part III thereof, in the County Court House in the Borough of Manhattan, in the City, County and State of New York, on the day of , 19 , and the plaintiff having appeared therein by Charles Carter, Esq., her at- 370 CODE PRACnCE IN NEW YORK torney, and the defendant having made default and due deliberation having been had, I do find as follows: FINDINGS OF FACT 1. That the plaintiff was married to the defendant on the day of , 19 , in the Borough of Manhattan, in the City, County and State of New York; that the plaintiff was at aU times thereafter a resident of the Borough of Manhattan, in the City of New York, and so resided at the time of the commencement of this action and that the defendant did thereafter so reside up to and on or about the day of , 19 (or as the case may be). 2. That on or about the day of ,19 , at No. street in the Borough of Manhattan, in the City, County and State of New York, the defendant committed adul- tery with one Messalina May. 3. That the said adultery was committed without the consent, con- nivance, privity or procurement of the plaintiff; that five years have not elapsed since the plaintiff discovered the fact of such adultery; that the plaintiff has not voluntarily cohabited with the defendant since her discovery of the said adultery, and that there is no judgment or decree in any court against the plaintiff in favor of the defendant for a divorce on the ground of adultery. 4. That there is no issue of the said marriage between the plaintiff and defendant (or as the case may be). 5. That this action was commenced by due service of a summons and complaint upon the defendant personally, having upon its face the words "action for a divorce," on the day of , 19 ; that twenty days had elapsed at the time of the trial of this action since the service of the said summons and complaint and that the defendant has not answered or demurred and no extension of time in which to answer or demur has been granted and the said defendant was then and is now in default. CONCLUSIONS OF LAW That the plaintiff herein is entitled to an interlocutory decree dis- solving the said marriage between the plaintiff, Bertha Bristow, and the defendant, Benjamin Bristow, and that at the expiration of three months from the entry of this decision and the interlocutory decree, plaintiff unless otherwise ordered by the court be entitled to a final judgment of divorce against the defendant in accordance with the provisions of the statute in such case mad ; and provided. PARTICULAR ACTIONS 371 I therefore dii-ect that an interlocutory decree be entered accordingly. Dated New York the day of , 19 . Edwabd Evans, J. S. C. An interlocutory judgment is also entered in annulment and divorce actions but not ia actions for a separation, for in the latter a final judgment is entered immediately. The following is the form used in New York County: At a Special Term, Part III of the Supreme Court of the State of New York held in and for the County of New York, at the Court House in the Borough of Manhattan, City of New York, on the day of , 19 . Present — Hon. Edward Evans, Justice. Beetha Bbistow, Plamtiff, ^ '^«*'^* } "'""'onDefauZ Benjamin Bbistow, Defendant. Interlocutory Judgment The above entitled action having been brought on by plaintiff for a judgment of divorce in favor of the plaintiff and against the defend- ant dissolving the marriage relations heretofore existing between the parties hereto, upon the ground of the adultery of the defendant at the time or times and place or places set forth in the complaint herein; the defendant having been duly served with summons and verified complaint in this action, and twenty days having elapsed since said service, and the defendant not having appeared, answered or de- murred thereto, the cause having been duly brought on for trial at Special Term, Part III of this Court before Hon. Edward Evans, one of the Justices of this Court, on the day of , 19 , and the plaintiff by her attorney having appeared and presented her verified complaint, written and oral proof of the service of the summons and complaint on the defendant, affidavit of regularity of this proceed- ing, and testimony having been heard by the Court sustaining the allegations set forth in the complaint, the Court having thereupon fully advised in the premises, and having made findings of fact and 372 CODE PBACTICE IN NEW YOKK conclusions of law, deciding among other things that the plaintiff was entitled to a judgment against the defendant dissolving the marriage relations heretofore existing between the parties hereto pursuant to the Statute because of the adultery of the defendant: Now on motion of Charles Carter, Esq., attorney for the plaintiff, it is Ordered, Adjudged and Decreed that the plaintiff is entitled to a judgment, to be entered as hereafter provided dissolving the bonds of matrimony heretofore existing between the plaintiff and the defendant and freeing the plaintiff from the obligations thereof, and permitting the plaintiff to remarry but forbidding the defendant remarrying any other person during the lifetime of the plaintiff except by express per- mission of the Court. It is further Ordered, Adjudged and Decreed that the plaintiff have the custody of the infant children, the issue of said marriage. It is further Ordered, Adjudged and Decreed that the defendant pay to the plaintiff the sum of $100 monthly as and for her support and the support and maintenance of the issue of said marriage, and that the plaintiff have the costs and disbursements of this action to be taxed and inserted by the Clerk in the final judgment herein. It is further Ordered, Adjudged and Decreed that the final judgment shall not be entered in this action until the expiration of three months after the entry and filing of the interlocutory judgment, and within thirty days after the expiration of said period of three months final judgment may be entered upon said decision and interlocutory judg- ment unless otherwise ordered by the Court. It is further Ordered, Adjudged and Decreed that this judgment shall be interlocutory only. Enter, E. E. J. s. c. ■ Section 1774 requires this judgment to be entered in the County Clerk's Office within fifteen days after signature. Application for final judgment must be made within thirty days after three months of said filing. The plaintiff then waits the three months and withia thirty days thereafter, upon application, final judgment is entered as of course "unless for sufficient cause the court in the meantime shall have otherwise ordered" (§1774). Thus: PARTICULAR ACTIONS 373 At a Special Term of the Supreme Court of the State of New York, held at Part III thereof, in the County Court House, in the Borough of Manhattan, City of New York, on this day of , 19 . Present — Hon. Francis Fox, Justice. Bertha Bkistow, Plaintiff, against ^ Final Judgment on Default. Benjamin Bristow, Defendant. The above cause having come duly on to be heard at a Special Term of the Supreme Court of the State of New York, held at Part III thereof, at the County Court House in the Borough of Manhattan, City of New York, on the day of , 19 , before Hon. Edward Evans, a Justice of the said Court, and the Court having heard the testimony of the plaintiff and her witnesses, the defendant being fully in default, and a decision and interlocutory decree of di- vorce in favor of the plaintiff and against the defendant having been made on the day of , 19 , and entered in the Office of the Clerk of the County of New York on the day of , 19 , and it appearing by the Certificate of the Clerk of the County of New York, dated the day -of , 19 , and the affi- davit of Charles Carter, the attorney for the plaintiff herein, verified * the day of , 19 , that said decision and interlocu- - tory judgment were duly filed in the Office of the Clerk of the County of New York on the day of , 19 , and that no order or direction ia any way affecting the said judgment, or any application for said order or direction has since been filed in the Office of the Clerk of the County of New York, and that final judgment has not been refused. Now, on motion of Charles Carter, Esq., attorney for the plaintiff, it is hereby Ordered, Adjudged and Decreed that the marriage between the I * It should be "sworn to" since a verification is a special form of affidavit used for pleadings. 374 CODE PRACTICE IN NEW YORK plaintiff, Bertha Bristow, and the defendant, Benjamin Bristow, be, and the same is dissolved, and the plaintiff is hereby divorced from the defendant. And it is further Ordered, Adjudged and Decreed that after the entry of this judg- ment it shall be lawful for the plaintiff to marry again, the same as if the defendant was dead, but it shall not be lawful for the defendant to marry any person other than the plaintiff, in the lifetime of the plaintiff. And it is further Ordered, Adjudged and Decreed that the plaintiff have the custody of the infant children, the issue of said marriage. And it is further Ordered, Adjudged and Decreed that the defendant pay the plaintiff the sum of $100 monthly as and for her support and the support and maintenance of the issue of said marriage. And it is further Ordered, Adjudged and Decreed that the plaintiff, Bertha Bristow, recover from the defendant Benjamin Bristow, the sum of $ , being her taxable costs and disbursements herein, and that she have execution against the defendant therefor. Enter, F. F. J. S. C. This Final Judgment must be enttered in the County Clerk's Office within thirty days after the expiration of three months from the entry of the interlocutory judgment. Certificate of Coonty Clerk, County Clerk's Office. I Hereby Certify that a decision and interlocutory judgment of divorce in favor of Bertha Bristow, in an action brought in the Supreme Court by Bertha Bristow, Plaintiff, against Benjamin Bristow, Defendant. was entered in this Office on the day of , 19 > and that no order has been filed in tliis action since the entry of the interlocutory judgment. Dated, New York, , 19 . PARTICULAR ACTIONS 375 Supreme Court, County of New York. Bertha Bristow, Plaintiff, against Benjamin Beistow, Defendant. State of New York, County of New York. Charles Carter, being duly sworn, says that he is the attorney for the plaintiff in the above entitled action; that a decision and inter- locutory judgment of divorce was rendered herein and signed by Mr. Justice Edward Evans on , 19 , and entered in the Office of the Clerk of the County of New York on the day of - , 19 , and that no order or direction of the Court in any way affecting said judgment or application for such an order or direction has since been made to deponent's knowledge, and that said Court has not forbidden final judgment herein. Sworn to before me this day of , 19 . Charles Carter. (Notary's signature and title.) Attention is called to the county clerk's certificate and to the affidavit of the attorney which is annexed to the proposed judgment and submitted along with it. It is the practice to have the certificate signed by the clerk on the very morning when the motion is made, so that the matter may be brought down to date. Where a judgment or order directs the payment of alimony either temporary or permanent, the court may in its discretion direct the husband to give reasonable security. This applies also to foreign judgments for divorce and separation granted upon the ground of adul- tery upon which action has been brought in this state and judgment rendered. If he fails to give the security or to make any payment including counsel fees which 376 CODE PRACTICE IN NEW YORK he is required to make by the judgment or order, the court may cause his personal property and the rents and profits of his real property to be sequestered and appoint a receiver (§ 1772). When the husband makes default in payment and it appears that payment cannot be enforced by means of sequestration proceedings or by resorting to the security, if any, the court may make an order requiring the hus- band to show cause why he should not be punished for contempt and upon his failure to do so he may be com- mitted (§ 1773) . Since his obhgation to pay arises upon the entry of the judgment, it may be enforced in this manner with respect to alimony accruing between such entry and the service upon him of a certified copy of the judgment (Gunn V. Gunn, 120 App. Div. 353). By § 111 a limitation of three month's imprisonment is provided where the sum is less than $500 and six months where it is $500 or over; and it has been held that a de- fendant who has served one term of imprisonment for failure to pay alimony cannot be re-imprisoned for a failure to pay a later installment due imder the same order (People ex rel. Levine v. Shea, 201 N. Y. 471). But plaintiff is entitled to pursue any other remedy which she may have (Maran v. Maran, 137 App. Div. 348). (B) Actions to Annul. Sections 1742 and 1743 are curiously inconsistent. The former permitting an action to be maintained by a woman to annul a marriage where she had not attained the age of 16 years at the time, is not in accord with § 7 of the Domestic Relations Law which fitxes the age of consent at 18. Hence it has been declared that § 1742 is now obsolete and actions for annul- ment must be brought under § 1743 (Conte v. Conte, 52 App. Div. 335). The Domestic Relations Law (§§ 5-7), draws a dis- PARTICULAR ACTIONS 377 tinction between a marriage absolutely void and one merely voidable. This distinction is important. The former is void ab initio. It never was a marriage. The latter is legal until annulled by the court and it only becomes void from the time its nuUity is determined. The legaUty of the marriage status and aU the conse- quences ordinarily flowing therefrom, from the time the voidable marriage relationship began until its annulment, is undisturbed (Houle v. Houle, 100 Misc. 28). In- cestuous marriages are of course void. (Dom. Rel. L., § 5). So, with certain exceptions, are those contracted by a person whose husband or wife .by a former marriage is hving (Id., §6). But marriages are declared voidable where either party is under the age of eighteen, or lacks understanding, or is physically incapable, or consents by force, duress or fraud, or has a husband or wife by a former marriage hving who has been absent for five years past without being known to be living (§ 7) . Now admitting that where the marriage is void, no judicial sentence is necessary to free the party imposed upon, stOl "there is undoubtedly a fitness and propriety in procuring a judicial decree determinuig the nuUity of such a marriage and the Code permits an action to be maintained for that pm-pose, but a decree in such an action does not, however, avoid the marriage, but merely declares its invahdity" (Stein v. Dunne, 119 App. Div. 1, 3). Hence in § 1743, void and voidable marriages are mingled and provision is made for annulment for either of the following causes: (1) That one or both of the parties had not attained the age of legal consent or the age under which the con- sent of parents or guardians was required by the laws of the state where the marriage was contracted; (2) that the marriage was void; (3) that one of the parties was an idiot or a lunatic; (4) that the consent of one of the parties 378 CODE PRACTICE IN NEW YORK was obtained by force, duress or fraud; (5) that one of the parties was physically incapable of entering into the marriage state and the incapacity continues and is in- curable; (6) that the parties are within the prohibited degrees of consanguinity. Non-Age. Here the action may be maintained by the infant or by either of his parents, or by the guardian of his person or, if the court permits, by a next friend. (§ 1744). One who marries while under eighteen, though with the parent's consent may, upon arriving at that age, main- tain an action for annulment. This it has been said "is to all intents and^ purposes providing in such cases for trial marriages" (Mundell v. Coster, 80 Misc. 337, 339; Kruger v. Kruger, 137 App. Div. 289). The provision as to the consent of the parents or guardians contained in § 1743, subd. 1, applies to foreign states where the age of consent is not provided for and such consent is required (Greenberg v. Greenberg, 97 Misc. 153). It has been held that a marriage in this state be- tween non-residents (Becker v. Becker, 58 App. Div. 374), and a marriage between residents of New York celebrated in a foreign state (Cunningham v. Cunningham, 206 N. Y. 341), where one of the parties was under eighteen may be annulled. A child of a marriage which was annulled be- cause of non-age, is deemed legitimate (§ 1749). Void Marriages. Subd. 2, of § 1743 'was changed in 1918 so as to provide for the annxilment of "void" mar- riages. As it formerly stood, it covered a case where the husband or wife of one of the parties was living, such forn^er marriage being in force. The change seems to have been made to meet a situation where the marriage is void upon grounds other than those specifically men- tioned in § 1743, e. g., where a divorce had been granted and the guilty party had unlawfully married again (see Gardner v. Gardner, 98 Misc. 411; Roth v. Roth, 97 Misc. PARTICULAR ACTIONS 379 136). While admitting that there is no general equitable jurisdiction to set aside marriages and that the power to deal with matrimonial actions must be found in the statutes (Davidson v. Ream, 178 App. Div. 362), an ex- ception has been made where annulment was sought for some cause for which chancery had power to annul void contracts, in which case the court it has been said, possesses inherent jurisdiction. Evidently the amend- ment was made for the purpose of setthng this ques- tion. Under § 1745, an action for annulment on the ground that the former husband or wife of one of the parties was hving, the former marriage being in force, may be main- tained by any one of three persons, namely, either of the parties to the latter marriage, or the party to the former marriage who was not a party to the latter (Stokes v. Stokes, 198 N. Y. 301, 305). Where the subsequent marriage was contracted by at least one of the parties in good faith and with the full beUef that the former hus- band or wife was dead or that the former marriage had been annulled or dissolved, or without any knowledge by the innocent party of such former marriage, the issue of the subsequent marriage are deemed the legitimate children of the parent who was competent to contract and must be so specified in the judgment and their cus- tody awarded to the innocent party (§ 1745). In constru- ing this section, as the Court of Appeals has pointed out (in a case where there were no children) the second mar- riage may be treated as either void or voidable. If when it was contracted, the party already married knew or should have known that the first husband or wife was living, the second marriage was absolutely void. If this fact was not known and the second marriage was in the full beUef after due observance of the five years' provision that the first husband or wife was dead, the marriage 380 CODE PRACTICE IN NEW YORK was not void but voidable, binding upon both parties until action by the court and their relation was that of honorable marriage with no stain upon the good name of either and no blight on the status of any child they might have. Now in determining whether the second marriage was entered into in good faith, it will not be suffi- cient merely to wait until the five years have elapsed. There must have been an inquiry conducted in good faith with the diligence required by the importance of the subject. It must have been made with an honest effort to find out the truth, not to overlook it so as to be able to testify that nothing was discovered. A careless or dishonest inquiry affords no protection (Stokes v. Stokes, 198 N. Y. 301). Idiocy or Lunacy. Annulment actions on the ground that one of the parties was an idiot or lunatic are governed by §§ 1746-1748. Generally speaking, they may be maintained by a relative of the idiot or lunatic who has an interest to avoid the marriage or by a "next friend," or by the lunatic himself at any time after restoration to a sound mind, provided, however, that in the latter case, the parties had not freely cohabited as husband and wife after such restoration. In view of the fact that the action is purely statutory, it cannot be maintained by a committee of the incompetent as such, since no provision to that effect has been made (Walter v. Walter, 217 N. Y. 439). It will not be sufficient to show merely that the party at times had insane delusions or hallucinations on other subjects since before a marriage can be canceled on the ground of lunacy or for want of understanding "it must be satisfactorily shown that the party in whose interest or right the action is brought, was mentally incapable of understanding the nature, effect and con- sequences of the marriage" (Meekins v. Kinsella, 152 App. Div. 32, 36). Of course the statute refers to a PARTICULAR ACTIONS 381 want of understanding which existed at the time of the marriage and not to a case where it arose subsequently (see Banker v. Banker, 63 N. Y. 409). A child of a marriage annulled on the ground of the idiocy or lunacy of one of the parents is deemed the legitimate child of the parent of sound mind (§ 1749). Force, Duress or Fraud. Here the action may be main- tained by the party whose consent was so unlawfully obtained, or during the Ufetime of the other party, by the parent or guardian of the person of the innocent party, or by a relative who has an interest to avoid the marriage. But the marriage shall not be annulled for force or duress, if before the commencement of the action the parties voluntarily cohabited as husband and wife, or for fraud, if they did so with full knowledge of the facts constituting the fraud (§ 1750). It is impossible to discuss this ground at length within the compass of the present work. It has been said that, "The fraud which will induce the court to set aside a contract of marriage is something different from the fraud which will induce the court to set aside an or- dinary contract which has been executed, or even a con- tract which is still executory. . . No fraud will avoid a marriage which does not go to the *very essence of the contract and which is not in its nature such a thing as either would prevent the party from entering into the marriage relation, or having entered into it, would pre- clude performance of the duties which law and custom imposes upon the husband or wife as a party to that con- tract. Within that rule it has been held that fraudulent representations of one party as to birth, social position, fortune, good health and temperament do not vitiate the contract. . If when the relation is entered into, the party is competent to make that contract, is mentally competent to do the duties which the contract involves, and physically able to meet its obligations, nothing more 382 CODE PRACTICE IN NEW YORK can be required; and however the other party may be disappointed as to physical or mental characteristics which he or she expected would exist, such disappoint- ment is no ground for setting aside the contract, which the pubhc good requires should be rendered indissoluble, except for the gravest reasons (Fisk v. Fisk, 6 App. Div. 432, 434, holding that the wife had procured a vaUd divorce from a former husband and did not disclose it was not ground for annulment). Thus false protesta- tions of all consuming and undying love are not enough (Schaeffer v. Schaeffer, 160 App. Div. 48), nor representa- tions as to age where the party was of the age of consent (Williams v. "Williams, 71 Misc. 590). On the other hand, annulment has been decreed where the defendant at the time of the marriage had concealed the fact that he was afflicted with a chronic, contagious and hereditary venereal disease (Svenson v. Svenson, 178 N. Y. 54), or with tuberculosis (Sobal v. Sobal, 88 Misc. 277), also where the husband's consent had been obtained by fraudulent representations and strategy causing him to beheve that he was the father of her child (di Lorenzo v. di Lorenzo, 174 N. Y. 467). The court will award the custody of the children to the innocent parent unless the latter is unfit and may make provision for their education and maintenance out of the property of the guilty parent (§ 1751). The Code does not expressly state that the children shall be deemed legitimate, but it has been held that such will be the result of the' decree since the marriage not being void ah initio, all the consequences ordinarily flowing therefrom from the time it began unt.l its aimulment, are left un- disturbed (Houle V. Houle, 100 Misc. 28). Physical Incapacity. Here the action may be main- tained by the injured party or by the incapable provided that if brought by the latter he was unaware of the in- PARTICULAR ACTIONS 383 capacity at the time of marriage or if aware of it, did not know that it was incurable. It must be commenced before five years have expired since the marriage (§1752; see Wendel v. Wendel, 30 App. Div. 447; Schroter v. Schroter, 56 Misc. 69). The courts dechne to grant annulment for physical incapacity where, by reason of the advanced years of the parties at the timfe of the marriage, the desire for support and companionship rather than the usual motives of marriage must have actuated them (Hatch V. Hatch, 58 Misc. 54. Woman 56, Man 69). Necessarily there will be no decree of annulment where it appears that there has been birth of issue (Riley v. Riley, 73 Him, 575).* Incestuous Marriage. By § 5 of the Domestic Relations Law a marriage is incestuous whether the relatives are legitimate or illegitimate, between either an ancestor and a descendant, or a brother and sister of either the whole or half blood, or an uncle and niece or an aunt and nephew. Such a marriage is void. Trial and Judgment. In annulment as in other mat- rimonial actions, a final judgment is not rendered by default or upon the trial of the issues, without proof of the facts upon which the allegation of nullity is founded and the declaration or confession of either party is not alone sufficient, but other satisfactory evidence must be produced. Trial by jury of the issues of fact except where the action is founded upon an allegation of physical incapacity, must be directed upon the apphcation of either party or may be directed by the court of its own motion (§ 1753, Rules LXXII & LXXVI) . If annuhnent is sought on the ground of non-age, proof must be made * Here it appeaxed that the wife had given birth to twins and the court observed: "This would seem to dispose of the question of de- fendant's want of capacity, unless plaintiff expected her to have triplets." 384 CODE PRACTICE IN NEW YORK that the parties have not freely cohabited for any time as husband and wife after plaintiff had attained the age of consent, if on the ground of force or fraud that there was no voluntary cohabition as man and wife and if on the ground that plaintiff was a lunatic, that the lunacy still continues or that there was no cohabitation as husband and wife after plaintiff was restored to his reason (Rule LXXIII). The final judgment of annulment if rendered during the Hfetime of both parties, is conclusive evidence of the invalidity of the marriage; if rendered after the death of either party, it is conclusive only as against the parties to the action and those claiming under them (§ 1754). (C) Divorce. Section 1756 permits the maintenance of this action for defendant's adultery either (1), where both parties were residents of the state where the offense was committed : (2), where the parties were married within the state; (3), where plaintiff was a resident of the state when the offense was committed and is a resident when the action is commenced; (4), when the offense was committed within the state and the injured party when the action is commenced is a resident of the state. By residence as already stated, is meant "domicile" (See de MeU V. de Meli, 120 N. Y. 485). Rule LXXII prescribes certain allegations which should be inserted in the complaint; namely, that the adultery was committed without the consent, connivance, privity or procurement of the plaintiff; that five years have not elapsed since its discovery; that plaintiff has not volun- tarily cohabited with defendant since such discovery; and where at the time of the offense, 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 since the discovery of the commence- ment of such adulterous intercourse; and the complaint PARTICULAR ACTIONS 385 must be verified. Under Rule LXXV, if the husband wishes to question the legitimacy of any of the children, " the allegation that they are or that he beUeves them to be illegitimate shall be distinctly made in the complaint." The following is a form of complaint in a divorce action: Supreme Court of New York, County of New York. Bertha Beistow, Benjamin Bbistow, Plaintiff, Defendant. The plaintiff complaining of the defendant alleges: First: That on the day of , 19 , in the Borough of Manhattan, in the City, County, and State of New York the plain- tiff was married to the defendant. Second: That at the time of the said marriage the plaintiff and defendant were and ever since have been and now are residents of the Borough of Manhattan, in the City, County and State of New York. Third: That on or about the day of , 19 , the defendant committed adultery with one MessaHna May at a hotel known as the Alton House at number street in the Borough of Manhattan, in the City of New York (or as the case may be, e. g., "between the day of ,19 , and the day of , 19 , at a hotel known as," etc., "and at divers places within the City of New York but at what particular times and places, plaintiff is unable more particularly to state, the defendant committed adultery with a woman known as MessaUna May and with divers other women whose names are unknown to the plaintiff"). Fourth: That said adultery and adulteries and each of them were and was committed by defendant without the consent, connivance, privity or procurement of the plaintiff; that five years have not elapsed since the discovery by the plaintiff of the fact that said adultery or adulteries and each of them had been committed, and that the plaintiff has not voluntarily cohabited with the defendant since the discovery thereof, nor has the plaintiff forgiven or condoned the same. (The following is apparently not required but is frequently inserted: "That 386 CODE PRACTICE IN NEW YORK there is no judgment or decree, in any court of the State of New York or in any Court of any state within the United States of competent jurisdiction, against the plaintiff in favor of the defendant for a divorce on the ground of adultery." See § 1757, subd. 1.) Fifth: That there is no issue bom of the said marriage of plaintiff and defendant (or "that two children have been bom of the said mar- riage of the said plaintiff and defendant, viz., two boys, named John and James who were four years of age on the day of , 19 , and five years of age on the day of , 19 , respectively, which said children are now in the custody, care and control of the plaintiff." If the action is brought by the husband he may insert an allegation "but plaintiff alleges that he is not the father of the said John and James they being iUegitimate"). Wherefore plaintiff demands judgment against the defendant that the bonds of matrimony between the plaintiff and defendant be forever dissolved ("and that the plaintiff be awarded the custody and control of the said children John and James") ; that the defendant be required to provide suitably for the support and maintenance of the said plain- tiff ("and of said children"); that the plaintiff be awarded temporary alimony and the costs of this action; (If action is brought by the hus- band, in lieu of prayer for support, etc., insert "that, the said children John and James be adjudged to be illegitimate") and that plaintiff have such other and further reUef as may be proper. Charles Carter, (Verification.) Attorney for Plaintiff . Defendant as already pointed out, may set up the plain- tiff's adultery or other matter which would be a bar (Rule LXXIV), and in connection with a denial may plead as a counterclaim a cause of action against plaintiff for divorce or separation (§ 1770) . The answer need not be verified notwithstanding the verification of the complaint, unless it contains a counterclaim charging adultery when it must be verified in respect of such counterclaim where the complaint is verified (§ 1757, subd. 1). Plaintiff or defendant may serve a copy of his pleading on the co-respondent and the latter at any time within twenty days after service, may appear to defend so far as the issues affect him. If no such service is made, then at PARTICULAR ACTIONS 387 any time before the entry of judgment, any co-respondent shall have the right to appear and demand a copy of the summons and complaint which must be served within ten days and he may thereafter defend so far as the issues affect him (§ 1757, subd. 2). The procedure to be followed both in contested and un- contested divorce actions has already been indicated. Again it is repeated, that defendant admits nothing by his default. Plaintiff is bound to estabUsh every material allegation of the complaint and in addition, show proper service of the summons or of the summons and complaint which is usually done by calling the process server to the stand. Likewise where defendant does not put in issue the allegation of adultery or makes default ia appearing or pleading, plaintiff must prove "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 (§ 1757, subd. 1; Rules XVIII, LXXII, LXXVI). In permitting the plaintiff so to testify, the Code breaks in upon the general rule that neither husband nor wife is competent to give evidence against the other when the action or proceeding is founded upon an allegation of adul- tery, except to prove the marriage or disprove adultery connivance, condonation, limitations and recrimination (§ 831). A wife, therefore it would seem, cannot testify at the hearing for the purpose of fixing aUmony and main- tenance (Valentine v. Valentine, 87 App. Div. 156) though her affidavit is usually offered on appUcations made pen- dente lite. (And see supra, p. 362.) A practice has grown up of showing service by allowing plaintiff to identify de- fendant's photograph, after which it is marked in evidence and the process server testifies that this is a photograph of the person whom he served. Although some judges permit this, others have held that it is contrary to the language 388 CODE PRACnCE IN NEW YORK of § 831 and it is better to adopt some other method, e. g., by having some one who knows defendant and who has accompanied the process server, testify that the person so served was the defendant, or better still, have one who knows the defendant make the service. Plaintiff is, of course, not entitled to a divorce, even though adultery is proved, where procurement, connivance, condonation or recrimination is established or where five years. have elapsed after the discovery (§ 1758). Where the action is brought by the wife the legitimacy of a child bom or begotten before the commencement of the action is not affected, suitable provision for her support and for the education and maintenance of children may be made diid defendant forfeits all interest in her property though she retains the inchoate dower right which she then has (§ 1759). The section just quoted gives to the court power at any time thereafter to annul, vary or mod- ify a provision for support and maintenance (subd. 1). Hence, if the circumstances of the husband alter, the court may reduce or increase the alimony. This changes the orginal rule which was that the jtuisdiction of the court terminated with the entry of the fiaal judgment except as to proceedings for its enforcement or to correct any mistakes in the record (see Walker v. Walker, 155 N. Y. 77). When the action is brought by the husband, the legiti- macy of a child born or begotten before the cormnencement of the offense is not affected, but the legitiaiacy of any other child may be determined. His rights to any real or personal property which the wife owns when the judg- ment is rendered, are not affected, but she will not be en- titled to dower in his real property or to a distributive share in his personalty (§ 1760; Real Prop. L., § 196). A husband or wife guilty of adultery will not be entitled to any interest in a policy of insurance on the other's life PARTICULAR ACTIONS 389 in which the guilty party is named as beneficiary and upon apphcation, an order will be made directing the company to substitute such beneficiary as plaintiff may nomiaate (§ 1761). By § 8 of the Domestic Relations Law, the defendant may not marry as long as complainant fives, unless the court modifies the judgment which can be done only upon satisfactory proof that five years have elapsed since the de- cree and that defendant's conduct has been uniformly good. (D) Separation. The grounds for an action for sepa- ration are: (1) cruel and inhuman treatment; (2) such conduct as may render it unsafe and improper for plaintiff to cohabit with defendant; (3), abandonment, and (4) where the wife is plaintiff, the neglect or refusal to provide for her (§ 1762). The action may be maintained either where both parties are residents when it is commenced; or where they were married within the state and plaintiff is a resident when the action is commenced; or where hav- ing been married without the state, they become residents and have continued to be at least one year, and plaintiff is a resident when the action is commenced (§ 1763). The complaint must specify particularly the defendant's misconduct and set forth times and places with reason- able certamty (§ 1764). Defendant may set up in jus- tification, plaintiff's misconduct (§ 1765). As already stated there is no absolute right to trial by jury in actions for separation (Packard v. Packard, 88 App. Diy. 339). Judgment cannot be entered of com-se on defendant's default. Plaintiff must prove his case (Rule LXXVI; Dailey v. Dailey, 9 Misc. 511). The procedure here is the same as in divorce actions, except that final and not interlocutory judgment is entered after the hearing. When the action is brought by the wife the court may compel the husband to provide for the support and maintenance of the plaintiff and the 390 CODE PRACTICE IN NEW YORK children (§ 1766). If the parties subsequently become reconciled and make joint appUcation accompanied by satisfactory evidence of their reconciliation, the judgment may be revoked (§ 1767). But mere reconciUation, without an order, does not amoimt to a revocation of the decree (Hobby v. Hobby, 5 App. Div. 496). 2. Actions Relating to Decedents' Estates. (A) By or Against an Executor or Administrator. An action or special proceeding by or against an executor or administrator as such, must be brought against him in his representative capacity. If he is not so described, a judgment cannot be enforced against the decedent's estate, except by special direction of the court (§ 1814). The title of the action should therefore describe him sub- stantially as follows: Andrew Atkins, as Executor of the Last Will and Testament of Nicholas Noyes, Decasede or "Andrew Atkins, as Administrator of the Goods, Chat- tels and Credits which were of Nicholas Noyes, Deceased." The importance of this section will be understood when it is considered that an executor or administrator may subject himself to personal responsibUity to creditors by reason of his management of the estate. Thus it has been said: "That for all causes of action arising upon a con- tract made by the testator in his lifetime, an action can be sustained against the executor as such, and the judg- ment would be de bonis intestatoris" (sic)* , but "in aU causes of action, where the same arises upon a contract made after the death of the testator, the claim is against the executor personally, not against the estate, and the judgment must be de bonis propriis " (Ferrin v. Myrick 41 N. Y. 315, 322; cf. Schutz v. Morette, 146 N. Y. 137). So an action upon a contract made by the deceased * Testatoris. PARTICULAR ACTIONS 391 must be brought in the name of his executor or administrator, but an action brought upon a contract made by the executor or administrator must be brought by him individually (Ehrman v. Bassett, 159 App. Div. 752). Now as the codifiers pointed out in theii- note to this section, it is sometimes embarrassing to deter- mine whether an action is brought in an individual or representative capacity and hence this section was in- serted for the purpose of clearing up the difficulty. But the omission in the title of the word "as" between the name of the plaintiff and the words descriptive of his representative capacity will not prevent him from claim- ing that the action is brought as such representative, where the averments in the complaint are sufficient to show that he is suing in a representative capacity and that the cause of action devolved upon him solely as such (WiUets V. Haines, 96 App. Div. 5; affimd. 182 N. Y. 543). Originally, a cause of action against the executor or administrator as such, could not be united with one against him personally (Ferrin v. Myrick, 41 N. Y. 315, 322), but this is now permitted in cases either (a) 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; or (b), where it sets forth two or more causes of action in different capacities growing 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. But a money judgment for plaintiff must distinctly show whether it is awarded against defendant personally or in his representa- tive capacity (§ 1815), and individual and representative judgments may be separately docketed (§ 1816). As the commissioners here point out, it may sometimes happen that plaintiff can charge defendant in both capac- 392 CODE PRACTICE IN NEW YORK ities especially in equity; for instance, if a surviving partner of the decedent is one of his executors, a creditor may require him to account, if necessary, in both capaci- ties. Again it may be uncertain in which capacity a defendant is hable as where plaintiff's agent dies without having accounted, and his executor takes possession of all the effects found in his possession some of which are the plaintiff's, but the plaintiff is unable to distinguish his own from the decedent 's. The executors and administrators of the same decedent are considered as one person and those who are first served with process or first appear must answer. Sep- arate answers cannot be required or allowed except by direction of the court. Judgment in plaintiff's favor may be entered and execution issued against all the defendants as if all had appeared (§ 1817). This section, however, it has been said, does not change the rule that in an action for or against executors all qualified and acting executors must be made parties (Simpson v. Simpson, 44 App. Div. 492, 494) . But an executor to whom letters have not been issued is not a necessary party (§ 1818). The Supreme Court has concurrent jurisdiction with the Surrogate's Court to enforce the payment of legacies and distributive shares, and an action may be brought against the executor or administrator after the expiration of one year from the granting of letters (§ 1819). The guardian ad htem of an infant bringing such an action, unless he is also the general guardian, must file a bond conditioned that he will duly account to the infant when he attains full age or in case of his death, to his personal representative, for all the money or property received (§ 1820). As will be seen hereafter (see infra, p. 395), heirs and devisees are liable for the decedent's debts to the extent of the property which they acquire. But a final judgment PARTICULAE ACTIONS 393 against an heir or devisee bars an action against the execu- tor or administrator for the same cause and every other remedy to enforce payment out of decedent's property, unless an execution has been returned unsatisfied or sufficient real property to satisfy the judgment has not descended or been devised to the judgment debtor. But if the judgment was recovered for a debt or legacy ex- pressly charged upon the estate descended or devised the bar is absolute (§ 1821). The decedent's real property is not bound by a judg- ment against his executor or administrator and is not liable to be sold under an execution unless the judgment is expressly made a hen upon specific real property or directs its sale (§ 1823). Section 1824 provides that in an action against an executor or administrator as such, wherein the complaint demands judgment for a sum of money, the existence, sufficiency or want of assets shall not be pleaded and a judgment is not evidence of assets in the defendant's hands. In other words, the judgment against an executor or administrator only proves the amount of the indebted- ness owing by the estate to plaintiff. The judgment creditor cannot force a distribution in a common law coiu-t, nor as § 1825 provides, can he issue an execution except by leave of the surrogate. Hence logically, the judgment should not be regarded as evidence of existence or lack of assets. The surrogate's order allowing the issuance of execution must specify the sum to be collected and the execution must be endorsed with a direction to collect it. Hence before granting the order, the siuro- gate should be satisfied that there are sufficient assets. Where it appears that the net assets are or will not be sufficient to pay aU the debts, legacies or other claims of the class to which plaintiff 's claim belongs, the sum directed to be collected shall not exceed plaintiff's just proportion 394 CODE PRACTICE IN NEW YORK (§ 1826). When a judgment has been rendered against an executor or administrator for a legacy or distributive share, the Surrogate before permitting execution may require an undertaking that if after collection of any sum, the remaining assets are not sufficient for expenses or for prior or equal claims, plaintiff will refund the sum so collected or a ratable part (§ 1827) . By § 1832, statements in an inventory are made only presumptive evidence in an action or special proceeding to which an executor or administrator is a party, wherein the question whether he administered the estate or any part is at issue or is the subject of inquiry and either party may rebut by showing that property was omitted or was not returned at its true value or has perished or been lost without the executor's or administrator's fault or has been fairly sold at a less price or has deteriorated or en- hanced in value (§ 1832). The personal representative shall not be charged with a demand or right of action included in the inventory unless it appears that it has been collected or might have been collected with due diUgence (§ 1833). Where a money judgment is rendered against an ex- ecutor or administrator in his representative capacity, costs shall not be awarded against him unless plain- tiff's demand was presented within the time limited by a notice requiring creditors to present claims and payment was unreasonably resisted or neglected (§§ 1835, 1836). As already stated (see supra, p. 46), a foreign executor or administrator may now sue and be sued (§ 1836a). (B) By a Creditor against Next of Kin, etc. An executor or administrator as will be seen hereafter (see infra, p. 476) may publish a notice once a week for six months, requir- ing the presentation of claims (§ 2677), and if a creditor fails to present his claim within six months from the first publication or if no notice be published, within one PARTICXJLAR ACTIONS 395 t year from the issuance of letters, the personal repre- sentative is not chargeable for any assets or moneys paid in satisfaction of lawful claims, legacies or distributive shares before such claim was presented (§2678). But the creditor does not lose all chance of collection merely because he has neglected to present his claim. He may maiatain an action against the surviving husband or wife and the next of kin or legatees to recover to the ex- tent of the assets paid or distributed to them (§ 1837), which action may be joint or several (§ 1838). If joint, plaintiff's recovery of the whole sum must be apportioned among defendants in proportion to the legacy or dis- tributive share received by each (§ 1839), and if several, the recovery cannot exceed the sum to which plaintiff would have been entitled from the same defendant had the action been brought jointly (§ 1840). If the action is brought against one or all of the legatees, plaintiff must show either that no assets were delivered by the executor or administrator to the surviving husband, wife or next of kin or that the value of the assets so delivered has been recovered by some other creditor or that the assets after payment of the expenses of administration and preferred demands, are not sufficient to satisfy plaintiff's demand, in which case he can recover only for the deficiency (§ 1841). Where some of the legatees are preferred, the action may be maintained against one or all of those equally preferred or deferred (§ 1842). By § 101 of the Decedents' Estate Law, the heirs and devisees are Hable for the decedent's debts to the extent of the estate, interest and right in the real property which descended or was devised to them. Under the Code, § 1844, an action to enforce such liability cannot be main- tained unless: (a) one year has elapsed since the death and no letters testamentary or of administration have been granted; or, (b) eighteen months have elapsed since 396 CODE PRACTICE IN NEW YORK letters were granted. The reason of course is to prevent interference with the regular administration of the estate. If it appears that at the time of the commencement of the action, a proceeding for the settlement of the ex- ecutor's or administrator's accounts is pending, the action must be stayed (§ 1845). The action must be brought jointly against all the heirs or devisees (§ 1846), and the recovery must be ap- portioned (§ 1847). When brought against heirs, plain- tiff must show either that the decedent's assets within the state were insufficient to pay plaintiff's debt in ad- dition to administration expenses and debts of a prior class, or that plaintiff has been or will be unable with due diligence to collect by proceedings in the surrogate's court and by action against the personal representative and the surviving husband or wife, legatees and next of kin (§ 1848). Where against devisees, he must show in addition, either that the real property descending to the heirs was insufficient or that he has been or wiU be un- able to collect by an action against them (§ 1849). Where the assets appUcable to plaintiff's debt were sufficient to pay a part or a part has been collected from the personal representative or the surviving husband or wife, next of kin or legatees, plaintiff can recover only for the residue, and if the action js against devisees, only for the residue which the real estate descended or the amount of his recovery against the heirs is insufficient to discharge (§ 1850). The complaint must describe the land "with common certainty" and specify its value (§ 1851). If any of the real property which descended or was devised to a de- fendant has not been aliened by him, the final judgment must direct that plaintiff's debt or the proportion which he is entitled to recover against that defendant be col- lected out of that real property (§ 1852), but such a judg- PARTICULAR ACTIONS 397 ment and the execution thereon does not affect the title of a purchaser in good faith and for value acquired be- fore fiUng the Uspendens or the entry of final judgment and the fihng of the judgment roll (§ 1853). If before the Uspendens was filed, defendant aliened the property plaiatifT may, at his election, take final judgment against defendant for its value or so much thereof as may be necessary as though it were defendant's own debt (§ 1854). The surviving husband or wife, next of kin, legatees, heirs or devisees must give the prescribed preference in the payment of claims (§§ 1855-1857 and see § 2682). An action against heirs or devisees is not suspended by infancy of any of the parties except that an execution shall not be issued against an infant heir or devisee imtil the expiration of one year after final judgment is rendered and the judgment roll filed (§ 1858). Where a person received property of the decedent in a double capacity, e. g., as devisee and heir, next of kin and legatee, etc., plaintifif is generally permitted to recover against him in one capacity, although the remedy against him in another capacity was not exhausted (§ I860). (C) To Establish or Impeach a Will. Jm-isdiction is given to the Supreme Court to entertain an action to es- tabUsh a will either: (1) of real or personal property or both which might have been admitted to probate in a surrogate's coin-t, but the original of which is in another state or country imder such circumstances that it cannot be obtained or has been lost or destroyed, before it was duly proved and recorded within the state, or, (2) of personal property made by one who was a non-resident at the time of execution or death and which has been executed according to the laws of the state or country where made or where testator resided at the time of death and the case is not one where it can be ad- 398 CODE PRACTICE IN NEW YORK mitted to probate in a surrogate's court under the laws of the state (§ 1861). A lost or destroyed will can also be admitted to probate in the surrogate's court (§ 2613; see infra, p. 467). But in order that this may be done both before the surrogate and in the Supreme Court, it must be shown that the will was in existence at the time of testator's death or was fraudulently destroyed in his lifetime, and its provisions must be clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness (§ 1865). The rule here is that if a will shown once to have existed and to have been m the testator's possession, or in a place to which he had access, cannot be found after his death, the presumption is that he destroyed it animo revocandi. But that presumption is overcome when it appears that the win was deposited with a custodian and that testator did not thereafter have it in his possession or have access to it (Matter of Cimnion, 201 N. Y. 123; Matter of Ken- nedy, 167 N. Y. 163; Schultz v. Schultz, 35 N. Y. 653). It win not be enough to show that persons interested to estabUsh intestacy had an opportunity to destroy the wiU. It must be shown by facts and circumstances that the wiU was actually, fraudulently destroyed (CoUyer ?;. CoUyer, HON. Y.481). The final judgment which is rendered establishes the will, but if the testator was a resident of the state at the time of his death, it does not affect the construction or vahdity of any provision, which must be determined in the same action or in another action or special proceeding (§ 1862). The intent is to make such a judgment the de- cree of the surrogate, for under § 1863, where the parties who have appeared or been summoned include all who would be necessary parties to a special proceeding in a surrogate's court for the probate if the circumstances were such that it could have been proved in a surrogate 's PARTICULAK ACTIONS 399 court, the final judgment must direct that an exemplified copy be transmitted to the surrogate and that letters be issued from his court (§§ 1863, 1864). Now by § 1862 already quoted, the judgment estab- lishing the vaUdity of the will does not affect the con- struction or vahdity of any provision. It should be read in conjunction with § 1866 which permits an action to be brought for the purpose of determining the vahdity, construction or effect of a testamentary disposition of real property within the state or of an interest which would descend to an heir if the devise were successfully impeached. Here the judgment may perpetually enjoin any party from impeaching the devise or otherwise making any claim in contravention to the determination of the com-t. This requires a word of explanation. Courts of equity would often take jurisdiction to con- strue a will involving the disposition of personalty, where they would refuse if a judicial construction were sought for the mere purpose of determining title to real estate. The reason "is found in the fact that an executor is re- garded as a trustee of the personalty which he holds in trust for the legatees or beneficiaries so far as it is disposed of by will and as to the residue for those entitled to it under the statute of distributions" (Underwood v. Curtis, 127 N. Y. 523, 543). In other words, "equity took cog- nizance of actions for the construction of wills only by reason of its jmisdiction over trusts. An heir claiming in hostiUty to the will could not maintain such an action, a devisee claiming merely a legal estate could not, and next of kin were permitted to, only on the theory that in case of the invaUdity of the will, the executors hold the per- sonal property upon a resulting trust" (Higgins v. Downs, 101 App. Div. 119, 124; cf. Read v. Wilhams, 125 N. Y. 560). So far as the surrogate was concerned, though he nee- 400 CODE PRACTICE IN NEW YORK essarily has jurisdiction for purposes of distribution, to construe a will and decide on the validity of its provisions, he had no power, in advance of distribution or directions for payment from the estate, to adjudicate the effect or vaUdity of the will (Matter of Mount, 185 N. Y. 162, 166). But now, by § 2615, if a party expressly puts in issue in a proceeding for probate, the vahdity, construc- tion or effect of any disposition of property contained in a will, the surrogate may determine the question upon rendering a decree. Hence, since adequate reUef can usually be obtained in this manner, though a court of equity has in special cases, undertaken to determine the validity of a will of persomal property, where there are obstacles which would prevent the Surrogate 's Court from passing on the question, the Supreme Court has always refused to exercise this jurisdiction where the Surrogate's Court may act (Delabarre v. McAlpin, 71 App. Div. 591). As already intimated, equity would decUne to act with respect to a will of real property where there were no trusts or equitable estates, and although § 1866 has ex- tended the remedy so as to include suits for the construc- tion of devises, nevertheless, it does not permit an inquiry into the vahdity of the instrument itself as to whether it was duly executed by a competent testator. It assumes the vaUd execution of the paper and limits the inquiry "to the vahdity, construction or effect of a disposition of real property which the instrument thus executed, makes. . ." The "language would seem to provide for the case of a devise contained in an instrument where due and proper execution is assumed, but which devise was to be adjudged good or bad as it should be determined that it was in accord with or against the law upon the subject of such devise" (Anderson v. Anderson, 112 N. Y. 104, 112). It was here added that "the general policy of this state is and has been to commit to the courts of PARTICULAR ACTIONS 401 probate the decision of questions arising upon the due execution of an alleged will" (Id. 113). 3. Actions Against and Between Joint Debtors. Who are necessary and who are proper parties has already been discussed (see supra, p. 42) and reference made to § 1932, providing that when the complaint de- mands a money judgment against two or more joint debtors on contract, if the summons is served upon one or more but not upon all, plaintiff may proceed against the defendant or defendants served unless the court directs otherwise. But the judgment may be taken against all the defendants jointly indebted (see Prod- uce Bank v. Morton, 67 N. Y. 199). Such a judg- ment is conclusive evidence of the liabiUty of each defendant who was personally served or who appeared (§ 1933), and an execution though joint in form against all the defendants, must have indorsed thereon a di- rection Tjontaining the name of each defendant not simuxioned and restricting its enforcement so that there shall be no seizure of his person or levy upon his sole property. But it may be collected out of personal prop- erty owned jointly with the other defendants who were summoned or any of them and out of the real and personal property of the latter or any of them (§§ 1934, 1935). The clerk must write upon his docket opposite or under the name of each defendant not served, the words "not summoned" and the judgment does not bind any real property or chattel real owned by such defendant (§ 1936). After the recovery of a judgment against joint debtors, the judgment creditor may maintain an action against one or more of them not summoned, to procure a judg- ment charging his or their property with the sum remaining unpaid (§ 1937). The complaint must be verified, must contain an allegation that the judgment has not been 402 CODE PRACTICE IN NEW YORK paid; and must state the sum remaining unpaid (§ 1938). The answer is restricted to defenses or coimterclaims which defendant might have made in the original action if the summons had been served upon him, when it was first served upon a defendant jointly indebted; objections to the judgment, and defenses or counterclaims which have arisen since it was rendered (§ 1939). Under the old Code of Procedure, the remedy afforded to the cred- itor who had obtained judgment upon service of process on another joint debtor was not a new action but a pro- ceeding at the foot of the judgment in the original action. The joint debtor not served was summoned to show cause why he should not be bound by the judgment. This was altered by the enactment of the Code of Civil Procedure and thereafter it became a new statutory action created by §1937 which "rests upon a double basis: (1) the existence of the claim sought to be enforced in the first action; and (2) the recovery of a judgment thereon. Both of these elements are essential to the maintenance of this statutory action, and therefore the plaintiff's cause of action does not accrue imtil the re- covery of the original judgment." The ten years' statute of limitations then begins to run against the plaintiff and if he allows that period to pass without commencing suit his right is gone (Hoffenberth v. Nash, 191 N. Y. 446). For the purpose of obtaining the provisional remedies of arrest, injunction and attachment, the action is re- garded as being founded upon the original contract (§ 1940). Plaintiff's recovery must be for the sum re- maining unpaid upon the original judgment (§ 1941). Under the common law rule, if a creditor voluntarily gave a release to one joint debtor, it would operate as a discharge to all. But under § 230 of the Debtor and Cred- itor Law a joint debtor may make a separate composition with his creditor which wiU discharge the debtor making PARTICULAH ACTIONS 403 it and him only and by § 231 an instrument making a com- position does not impair the creditor's right of action or right to take proceedings against any other jomt debtor unless the intent to release or exonerate him appears upon the face thereof. This is taken from the former Code § 1942. In other words, the creditor may reserve his right of action as against the other debtor. "The equitable rule now prevails and a release is to be construed according to the intent of the parties and the object and pm-pose of the instrument and that intent wiU control and limit its oper- ation" (Whittemore v. Judd Linseed & S. 0. Co., 124 N. Y. 565, 574; Gilbert v. Fnch, 173 N. Y. 455). Such a composition instrument is deemed a satisfaction piece for the purpose of discharging the judgment so far as it affects the compounding debtor (§ 1943). Where one or more partners have not been joined as defendants in an action upon a partnership Uability and final judgment has been taken against the persons made defendants, plaintiff may bring a separate action against each omitted partner (§ 1946). In an action to dissolve a partnership or for an accounting between partners or affecting the continued prosecution of the business, the court may authorize the business to be continued pendente lite by one or more of the partners upon their executing and filing an undertaking that they will obey aU orders of the coiu-t and perform -aU things required by the judgment, with such other conditions as may be deemed proper. The court may also ascertain the value of the partnership prop- erty and the partners' interest and direct an accounting, and the judgment may make such provision for payment to the retiring partners for their interest and with respect to the rights of creditors, the title to the partnership prop- erty and otherwise, with or without the appointment of a receiver or a sale of the partnership property (§ 1947). CHAPTER XVIII STATE WRITS 1. In general. 2. Habeas corpus to bring up a person to testify. 3. Habeas corpus and certiorari to inquire into detention. 4. Mandamus. 5. Prohibition. 6. Assessment of damages. 7. Certiorari to review. 1. In General. There are seven so-called State Writs: (1) Habeas Cor- pus to bring up a person to testify or answer; (2) Habeas Corpus to inquire into the cause of detention; (3) Certio- rari, to inquire into the cause of detention; (4) Mandamus; (5) Prohibition; (6) Assessment of Damages; (7) Certio- rari to review which may be called the writ of review (§ 1991) . These writs are issued under the seal of the court (§ 1992) and when the people are a party or are interested, they may be awarded upon the apphcation of the attorney general or the district attorney (§ 1993). In other cases, where the apphcation is made by a private person "the people are present merely as a formal party and their pres- ence is due to the survival of a form which has long ceased to have any significance or utiUty." (People ex rel. Sher- wood V. State Board of Canvassers, 129 N. Y. 360, 373). Here it must appear upon whose apphcation or "relation" the writ was issued (§ 1994) . As will be noted in the fol- lowing forms, the proceeding will be entitled "The People of the State of New York on the relation of " (or "ex rel.") etc. The parties appear by attorney as in other cases (§ 1995), and since these are special proceedings the termi- 404 STATE WRITS 405 nation is by final order (§ 1997). A state writ must gen- erally be personally served in like manner as a summons (§ 1999). 2. Habeas Corpus to Bring up a Person to Testify. The object of this writ originally known as the "habeas corpus ad testificandvim") is to obtain the presence of a witness who is detained in a jail or prison (§ 2008). It may be issued by a justice of the Supreme Court or county judge or with certain exceptions, out of other courts of record (§§ 2008-2010). If, however, a prisoner is under sentence of death it must be issued by the Appellate Divi- sion or the presiding justice thereof. In such a case and where the prisoner is confined imder any other sentence for a felony, notice must be given to the district attorney (§ 2011). The contents of the appUcation are prescribed in § 2012. It must show inter aha, that the testimony is material and necessary. The following will serve as an illustration: Supreme Court of New York, County of People of the State of New York on the Relation of Andrew At- kins, Plaintiff, against William Wilkins as Sheriff of the County of (or "as War- den of the City Prison of the City of New York" or other officer), Defendant. The petition of Andrew Atkins respectfully shows as follows: He is the relator in the above entitled proceedings and resides at . He is also the plaintiff in an action now pend- ing in the Supreme Court of New York in and for the County of against Benjamin Bristow. Said action was commenced by the service of a copy of the summons and complaint on the defend- 406 CODE PRACTICE IN NEW YORK ant personally on the day of , 19 . Thereafter and on the day of , 19 , the defendant appeared by his attorney, Daniel Darling, Esq., whose office is at and on the day of , 19 , the answer of the said defendant was served and issue was on that day joined. Said action was brought (state nature of action). By his answer defendant (state nature of defense). One Mortimer May is now a prisoner in the custody of and is confined in (state place and cause of detention). The testimony of said Mortimer May is material and necessary to petitioner on the trial of said action for the following reasons (it is better practice to set forth these reasons in detail). Your petitioner has fully and fairly stated the case and the facts which he expects to prove by the testimony of said Mortimer May to Charles Carter, Esq., his counsel, who resides at and whose office is at and your said petitioner has a good and sub- stantial cause of action upon the merits against the defendant therein, and the testimony of said Mortimer May is material and necessary to him on the trial of said action, without which he cannot safely pro- ceed to said trial as he is advised by his said counsel after said state- ments and verily believes. This application is made in good faith and no previous application for a writ of Habeas Corpus to bring up the said Mortimer May to testify has been made by or on behalf of your petitioner. The action brought by your petitioner against said Benjamin Bris- tow has been noticed for trial on (state time and place). Wherefore your petitioner prays that a writ of Habeas Corpus issue under the seal of this court directed to (name of officer) com- manding that he produce said Mortimer May before (state place and time adding "and on said other days to which said cause shall be ad- journed") to enable him to testify as a witness upon the trial of the aforesaid action. Andrew Atkins, Petitioner. (Verification ) Along with the petition there is presented a writ of which the following is a form: The People of the State of New York on the Relation of Andrew Atkins to the Sheriff of the County of ("the Warden of the City Prison of the City of New York'' or other officer) Greeting: STATE WRITS 407 We command you that you have the body of Mortimer May de- tained in our prison in (state place) under your custody, as it is said, under safe and secure conduct at (state court, term thereof, place where and time when) and on such other days to which the trial of a certain action now pending in said court between Andrew Atkins, plaintiff, and Benjamin Bristow, defendant, may be adjourned, to testify and be examined as a witness on the part of the said plain- tiff. And immediately after the said Mortimer May shall then and there have been examined and shall have testified as aforesaid, that you return him to your said prison under safe and secure conduct and have you then and there this writ. Witness Hon. Edward Evans, a Justice of the Supreme Court of New York, at , this day of , 19 . John Jones, Clerk. (Seal) Charles Carter, Attorney for Relator. (Address.) The justice then endorses his allowance upon this writ, dating it (§1996) thus: "Allowed " (or "granted") this day of , 19 . "Edward Evans, "Justice of the Supreme Court." Then the clerk signs and seals as above. The person serving the writ must be at least twenty- one years of age. The officer's fees must also be tendered and an undertaking deUvered to him to the effect that the surety will pay the charges of carrying back the prisoner and that the latter wiU not escape by the way (§ 2000). The officer on whom the writ is served must make a return stating for what cause the prisoner is held. The prisoner after testifying may be recommitted (§ 2013). An officer refusing to obey the writ is subject to a penalty of $500 (§2014). 408 CODE PRACTICE IN NEW YORK 3. Writs of Habeas Corpus and Certiorari to Inquire into the Cause of Detention. These two writs are grouped together since their object is the same, namely, to inquire into the cause of the impris- onment or restraint of one who is detained, and where such imprisonment or restraint is unlawful, to deUver him therefrom ,(§ 2015) . Both command the party on whom the writ is served to make a return as to the cause of the detention. Habeas Corpus * in addition requires the pro- duction of the person. In certain cases, neither writ is allowed, e. g., where one has been cormnitted or is detained under a mandate issued by a covirt of judge of the United States in a case where such courts or judges have exclusive jurisdiction or where the commitment or detention is imder the final judgment, decree or order of a competent tribunal (§ 2016). The writ of habeas corpus has well been termed "the greatest writ of the common law because it assures and secures personal liberty by simple and direct process available to every citizen" (People exrel. Bungart v. WeUs, 57 App. Div. 140). Both writs are resorted to in a variety of cases where the object is to test the legality of restraint. Thus Habeas Corpus may be employed to determine the right to the custody of an infant (People ex rel. Keator v. Moss, 6 App. Div. 414; People ex rel. Pruyne v. Walts, 122 N. Y. 238; Domestic Relations Law, § 70) and to inquire into the sanity of one held in custody as an insane person (People ex rel. Bebro v. Bond, 104 App. Div. 47; Insanity Law, §93). So, one who is charged with a crime and arrested under a warrant, is not obliged to await an examination before a magistrate. He may at once sue out a writ and on its * "That you have the body" or in the language of Mr. Samuel Weller, "have-his-carcass." STATE WRITS 409 return the court will look back of the warrant to ascertain whether the facts stated in the depositions of the prose- cutor and his witnesses conferred jurisdiction on the magis- trate to issue it. If they do not furnish reasonable and just ground for a conclusion that the crime charged had been committed and that the prisoner committed it, then jurisdiction was lacking to hold the prisoner in custody (People ex rel. Perkins v. Moss, 187 N. Y. 410). Again, sentence ia excess of that which the court had power to impose is void for the excess and where the valid part has befen fully executed, the prisoner must be discharged (People ex rel. Tweed v. Liscomb, 60 N. Y. 559), and so when the offense was not charged with certainty (People ex rel. Clark v. The Keeper, 176 N. Y. 465). It should be kept in mind, however, that these writs do not perform the same functions as a writ of review or of appeal. The only inquiry is whether the court had jurisdiction, not whether the judgment was erroneous (People ex rel. Hubert v. Kaiser, 206 N. Y. 46; People ex rel. Danziger v. P. E. House of Mercy, 128 N. Y. 180). Under neither writ is the evidence to be reviewed nor errors on the trial to be corrected (People ex rel. Reynolds V. The Warden, 44 Misc. 149). So, it has been asked, "may we inquire in this proceeding whether the magis- trate had jurisdiction to impose the sentence which he did? If, after conviction, such sentence could not under any circumstances have been pronounced, we may. If under certain circumstances such sentence might be proper, but it was erroneously decided in this case that it should be imposed, we may not "(People ex rel. St. Clair V. Davis, 143 App. Div. 579, 583). Furthermore, the restraint or imprisonment must be actual and physical, and hence the proceeding will not he where the party is out on bail (People ex rel. Albert v. Pool, 77 App. Div. 148). 410 CODE PRACTICE IN NEW YORK In the First Department, a practice has sprung up of issuing both writs. "This is acquiesced in on the ground of convenience in having the magistrate certify the information or evidence upon which the relator has been held and which the court in such cases examines to see if there is any evidence of guilt, rather than because any warrant for such practice can be found in the Code of Civil Procedure" (People ex rel. Smith v. Van de Carr, 86 App. Div. 9, 12. But see People ex rel. Manning v. Hagan, 34 Misc. 24). In other words, the writ of cer- tiorari secures a return of the evidence from the magis- trate while habeas corpus secures the production of the person by the officer having him in charge. The Court of Appeals appears to sanction this practice (People ex rel. Danziger v. P. E. House of Mercy, 128 N. Y. 180; People ex rel. Clark v. The Keeper, 176 N. Y. 465). But it is improper to combine both certiorari and habeas corpus in one writ addressed both to the magistrate and to the person having the custody of the relator (People ex rel. Farley v. Crane, 94 App. Div. 397). The apphcation is made by written petition, signed either by the party detained or by some person in his behalf, to the Supreme Court, Special Term, or the Appel- late Division or to a justice of the Supreme Coiirt or an officer authorized to perform his duties at Chambers (§ 2017). Section 2019 prescribes what the petition shall contain. The following is an illustration of a petition for both writs (taken from People ex rel. Perkins v. Moss, 187N. Y. 410): STATE WRITS 411 Supreme Court of New York, County of New York. The People of the State of New York\ ex rel. George W. Perkins, Plaintiff, against Joseph P. Moss et al., Defendants. To any one of the Honorable the Justices of the Supreme Court of the State of New York: The petition of George W. Perkins respectfully shows that he is imprisoned and restrained of his liberty in the City, County and State of New York, by Edward Reardon, a police officer of the City of New York, and that he is not committed or detained by virtue of any process or mandate issued by any court of the United States, or by a judge thereof; nor is he committed or 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 contempt; nor by virtue of an execution or other process issued upon such a judgment, decree or final order. The cause or pretense of the imprisonment or restraint according to the best of the knowledge and belief of your petitioner, is that Joseph F. Moss, a city magistrate in said city, has issued a warrant or mandate commanding that your petitioner be arrested and brought before him or some other magistrate of competent jurisdiction. A copy of said warrant or mandate is hereunto subjoined. And your petitioner further shows that his imprisoiiment and re- straint is wholly illegal and the said warrant or mandate is wholly void, in that no evidence of the commission of any crime or act justifying his arrest has been submitted to said magistrate, and that said magis- trate was wholly without jurisdiction to issue the same. Wherefore your petitioner prays that a writ of habeas corpus issue, directed to the said Edward Reardon, or to any other person by whom your petitioner may be imprisoned or restrained of his liberty, and that a writ of certiorari issue to said magistrate commanding him to certify fully and at large the cause of your petitioner's imprisonment as aforesaid. Dated March 28, 1906. George W. Perkins, (Verification.) Petitioner. 412 CODE PRACTICE IN NEW YORK I A court or judge must grant the writ whenever a peti- tion is presented unless it appears therefrom or from the documents annexed, that the petitioner is prohibited by law from prosecuting the writ. For a refusal, the judge, or if the application is made to the court, each member thereof who assents thereto forfeits to the pris- oner $1000 (§2020). The writ may be issued without appUcation where a judge has evidence in a judicial pro- ceeding taken before him that any person is illegally im- prisoned or restrained (§ 2025) . In certain cases where appUcation is made for habeas corpus, certiorari may issue instead, namely, where it appears that the cause or offense for which the party is imprisoned or detained is not bailable (§ 2041). The form of writs is prescribed in §§ 2021 and 2022. It will be noted, as already stated, that habeas corpus requires the production^ of the prisoner while certiorari does not. The writ of habeas corpus can be served by any person over the age of twenty-one years. If the prisoner is in the custody of a sheriff or other officer, the latter 's fees must be tendered and the undertaking already men- tioned, given (§ 2000) . In other cases, the court or judge may require the appUcant to pay the charges of bringing up the prisoner (§ 2001; cf. §§ 2004, 2005). If the person on whom habeas corpus or certiorari is to be served can- not be found with due diligence, substituted service may be made (§ 2003). The person upon whom either writ is served makes a return setting forth whether at the time of service he had in his custody the individual for whose relief it was issued with the authority and true cause of the imprison- ment or restraint, annexing a copy of any mandate or other written authority (§ 2026) . He need not produce the prisoner if the latter is so sick or infirm that his pro- STATE WRITS 413 duction would endanger life or health (§2027). If he improperly refuses obedience, a warrant of attachment may be issued for his apprehension and he may be ordered to stand committed until he makes a return and compUes with the direction of the court (§ 2028). The court may also issue a precept to the officer or person to whom the warrant is directed commanding the production of the person for whose benefit the writ was granted (§ 2029) . The prisoner may deny on oath any material allegation of the return or make any allegation of fact showing either that his imprisoimient or detention is unlawful or that he is entitled to a discharge (§2039). Notice of the hearing where the mandate was issued in a civil action or special proceeding, must be given to the person who has an interest in continuing the imprisonment or restraint or to his attorney and in other cases to the dis- trict attorney (§ 2038). The court or judge upon the re- turn of the writ, examines into the facts and orders the pris- oner discharged or remanded (§§2031-2034, 2042-2043). If it appears that the prisoner has been legally conmiitted or that he is guilty of the offense although the commitment is irregular, he must be discharged on bail if the case is bailable (§ 2035). Bail may fikewise be fixed and taken on the return to certiorari (§§2045, 2046). Notwith- standing a writ of certiorari has been issued or returned, a writ of habeas corpus may be issued (§ 2044). A pris- oner who has been discharged, shall not again be impris- oned or restrained for the same cause, Ihough it is not deemed to be for the same cause where in certain cases there is a subsequent commitment under a lawful mandate (§2050). 4. Mandamus. "A writ of mandamus is an extraordinary remedy not demandable as matter of right and whether it shall be 414 CODE PRACTICE IN NEW YORK granted in a given case rests in the sound discretion of the court. When such a remedy is sought, a clear and unquestioned legal right must be presented, for the writ will not issue in doubtful cases and in addition, there must be no adequate or legal remedy to obtain the reUef sought" (Matter of Brooklyn Imp. Co. v. Pounds, 174 App. Div. 448, 451; People ex rel. Lehmaier v. Interurban Ry. Co., 177N. Y. 296). "While it may require the performance of a purely ministerial duty in a particular manner, its command is never given to compel the discharge of a duty in- volving the exercise of judgment or discretion in any specified way, for that would substitute the judgment or discretion of the court issuing the writ for that of the person or persons against whom the writ was is- sued. In such cases, its sole function is to set in motion, without directing the manner of performance. . . . When the law requires a pubhc officer to do a specified act in a specified way, upon a conceded state of facts without regard to his own judgment as to the propriety of the act and with no power to exercise discretion, the duty is ministerial in character and performance may be compelled by mandamus, if there is no other remedy. When, however, the law requires a judicial determination to be made such as the decision of a question of fact, or the exercise of judgment in deciding whether the act shall be done or not, the duty is regarded as judicial and mandamus will not lie to compel performance" (People ex rel. Harris v. Commissioners, 149 N. Y. 26, 30). Thus the writ will He in cases such as the following : To compel the surrogate to order the appraisal of an estate subject to a transfer tax (Matter of Kelsey v. Church, 112 App. Div. 408); to compel a judge to give plaintiff's cause of action a preference to which it is entitled on the trial calendar (Hayes v. Consolidated Gas Co., 143 N. Y. STATE WRITS 415 641) ; t.o compel the mayor of New York to appoint four city magistrates (Matter of Kelly v. Van Wyck, 35 Misc. 210, necessarily not to compel him to appoint any particu- lar persons) ; to compel the Department of Health to correct its records so as to show the true name of a child (People ex rel. Baker v. Department of Health, 131 App. Div. 693) ; to compel the Comptroller to reinstate a clerk who was a veteran and who had been dismissed without charges and without a hearing (Matter of Stutzbach v. Coler, 168 N. Y. 416). A mandamus will lie against a corporation, e. g., to compel it to allow a stockholder to examine its books (Mat- ter of Steinway, 159 N. Y. 250). On the other hand, as already stated, the court will not interfere where the act is discretionary. Thus mandamus was refused to force a commissioner in condemnation proceedings to sign a par- ticular report (People ex rel. Comstock v. Morrison, 54 App. Div. 262; affimd. 165 N. Y. 644) ; to force the police board of New York to grant a theatrical license (People ex rel. Park Circle Amusement Co. v. Board of Police, 36 Misc. 89) ; to force a town board to consent to the building of a bridge (People ex rel. Fellows v. Early, 106 App. Div. 269); to review the determination of a poUce surgeon as to relator's physical qualifications for duty (People ex rel. Apfel v. Casey, 66 App. Div. 211). The difference is apparent between mandamus and the writ of certiorari to review, hereafter considered. "A mandamus is to command action, and not to review prior proceedings. It cannot be used for the correction of er- rors" (People ex rel. Holden v. Woodbury, 88 App. Div. 593, 596, affimd. 179 N. Y. 525). But it should neverthe- less be noted that where either writ has been applied for or granted and it appears that the other is the appropriate remedy, there may be a substitution by amendment (§ 2148a). The writ of mandamus is either alternative or peremp- 416 CODE PRACTICE IN NEW YORK tory (§ 2067) . The first requires an act to be done or cause shown why it should not be done. The second requires it to be done forthwith. A peremptory writ may be issued in the first instance where the appUcant's right to a mandamus depends only upon questions of law (§ 2070). When any question of fact arises, a peremptory mandamus cannot be issued un- til an alternative writ has been issued, served and the re- turn day has elapsed (Matter of Haebler v. N. Y. Produce Exchange, 149 N. Y. 414; People ex rel. McAniney v. Van- dervoort, 52 App. Div. 283; People ex rel. Hatheway v. Fromjne, 30 Misc. 323) . Both the alternative and peremp- tory writs are issued only upon notice of the application (§§ 2067, 2070). Generally, application is made at special term (§ 2068), but where the writ is directed to a judge of the Supreme Court it must be to the Appellate Division (§ 2069). An alternative writ is returnable in twenty days at the office of the Coimty Clerk, a peremptory writ at a Special Term or term of the Appellate Division as the case may be (§ 2072). In the First District, the return at Special Term must be made in Part II (Special Term, RuleV). Where apphcation has been made for a peremptory writ, argument is necessarily had as in case of other motions. Defendant may submit affidavits in opposi- tion. The rule then is that ' ' when a relator in a mandamus proceeding goes to argument upon his petition and the opposing affidavit of the defendant and demands that a peremptory writ issue . . . , the proceeding is in the na- ture of a demurrer to the facts set up by the defendant, and the right to the writ must be determined upon the as- sumption that the averments in the defendant's affidavit are true" (People ex rel. Pumpyansky v. Keating, 168 N. Y. 390, 398). Where there is an alternative writ, the defendant may STATE WHITS 417 either (1) demur or (2) make a return or (3) demur to a complete statement of facts alleged to constitute a separate grievance and make a return to the remainder (§§ 2073, 2076). The demurrer is filed in the office where the writ is re- turnable (§ 2076) and a copy served on the attorney for the people or the relator (§2081). The 'proceedings are then the same as where an issue of law arises in an action (§2082). If defendant makes a retm-n, he annexes it to a copy of the writ and files it with the clerk (§ 2074). The return is defendant's answer, and in its preparation he follows the rules appHcable to this pleading (§ 2077). It is not neces- sary to serve a copy upon the adverse party nor need it be verified (§ 2080). He must, however, serve notice of filing (§ 2081). He cannot be made to file a further re- turn, but the people or the relator may demur to the return for insufiiciency (§ 2078). A copy of such demurrer must be served upon defendant's attorney within twenty days after the latter has served notice of filing the return (§2081). If defendant has made a return, an issue of fact arises upon his denial of a material allegation of the writ or upon a material allegation of new matter contained in a return, unless the people or the relator demurs (§2079). Here likewise, the proceedings are the same as in an action (§ 2082). The issues of fact are triable by a jiu-y unless a jury trial is waived or a reference directed by consent (§ 2083). Issues of fact cannot be disposed of simxmarUy, for § 2075 provides that an alternative writ cannot be quashed or set aside upon motion for any matter involv- ing the merits. The verdict when rendered has the same force and effect as in an action where the complaint de- mands judgment for a sum of money and cannot be treated merely as advisory to the covu-t (People ex rel. 418 CODE PRACTICE IN NEW YORK McDonald v. Clausen, 163 N. Y. 523). Where the final order is in favor of the people or the relator it must award a peremptory mandamus (§ 2082). Costs are in the discretion of the court (§ 2086). In certain cases, damages ma,y be awarded or a fine imposed (§§ 2088, 2090). The return to a peremptory writ must be annexed to a copy thereof and before the first day of the term at which it is returnable, be either deUvered in open court or filed with the clerk (§ 2074). 5. Prohibition. "A writ of prohibition is to prevent the exercise by a tribunal possessing judicial powers, of jurisdiction over matters not within its cognizance, or exceeding its juris- diction in matters of which it has cognizance. It will not he to restrain a ministerial act. It is a proper remedy when the inferior court either entertains a proceeding in which it has no jurisdiction or when having jiu-isdiction, it assumes to exercise an unauthorized power. It is a rem- edy provided by the common law against the encroach- ment oj, jurisdiction" (Thomson v. Tracy, 60 N. Y. 31, 37). " The writ of prohibition is not favored by the courts. Necessity alone justifies it. Although authorized by stat- ute, it is not issued as a matter of right, but only in the ex- ercise of sound judicial discretion when there is no other remedy. While it issues out of a superior court and runs to an inferior court or judge, its object is not the correction of errors nor rehef from action already taken. In no sense is it a substitute for an appeal, as its sole province is to prevent the inferior tribunal from usurping a jurisdiction which it does not possess, although it runs against the exercise of unauthorized power in a proceeding of which the lower court has jurisdiction, as well as when the proceeding it- self is instituted without jiu-isdiction. The sole question to be tried is the power of the inferior court or magistrate STATE WRITS 419 to do the particular act in question. It is in effect an in- junction against a court as contrasted with an in- junction proper, which is granted against persons or cor- porations. It is not an affirmative remedy like mandamus, but purely negative for it does not command that anything be done, but that something should be left undone. The practice in issuing and enforcing the writ is regulated by statute, but its natm-e, object and function, as well as the facts governing the issue thereof are regulated by the common law. It is justified only by extreme necessity when the grievance cannot be redressed by ordinary pro- ceedings at law, or in equity or by appeal " (People ex rel. Livingston v. Wyatt, 186 N. Y. 383, 393). Thus prohibition wiU issue to restrain a court from or- dering a new trial upon the merits after a conviction for felony where it lacks jurisdiction to do so (Quimbo Appo V. People, 20 N. Y. 531); to prevent an acting surrogate from taking any proceedings or issuing any order remov- ing administrators upon an ex parte appUcation and the appointment of a particular person in their stead since such a decree would be void (People ex rel. Sprague v. Fitz- gerald, 15 App. Div. 539, afiimd. 156 N. Y. 689); and to comimand the Court of General Sessions to refrain from any further proceedings upon a motion for a new trial after judgment where it has not power to entertain them (People ex rel. Jerome v. Court of General Sessions, 185 N. Y. 504). Prohibition is also proper to restrain a pubUc service commissioner from acting on an appUcation by a railroad company for permission to increase fares beyond an amount already fixed in a franchise granted by the local authorities since the power of the commission extends only to rates estabhshed by statute (Matter of Quinby V. PubUc Service Com., 223 N. Y. 244). On the other hand, resort cannot be had to this writ where the party aggrieved has a remedy by ordinary 420 CODE PRACTICE IN NEW YORK proceedings either at law or in equity or by appeal (People ex rel. Huromel v. Trial Term, Part I, etc., 184 N. Y. 30). Thus, one who is served with a void subpoena may not secure a writ of prohibition to restain the magis- trate from further proceeding with the investigation. He may properly refuse to obey the subpoena and if any attempt is made to punish him, he naay have reUef by habeas corpus. If this is denied him in the first instance, his right may be secured by appeal (People ex rel. Liv- ingston V. Wyatt, 186 N. Y. 383). Nor will the writ issue where it is claimed that there has been an irregular service of summons, for the aggrieved party may move to set aside the service and may appeal from a decision refusing to do so (People ex rel. Ballin v. Smith, 184 N. Y. 96). Like the writ of mandamus, prohibition is either alter- native or absolute. Previous notice of the application must be given to the judge, corporation board or other body, officer, or other person to which or to whom it is directed (§ 2091). It is issued at Special Term (§ 2092), unless directed to one or more judges of the Supreme Court, ha. which case it is issued from the Appellate Di^'i- sion (§ 2093). The practice is first to issue an alterna- tive writ, directed to the court or judge and also to the opposite party, commandiag them to desist from further proceedings until the further direction of the issuing court and also to show cause why they should not be absolutely restrained (§ 2094). It must be served ia the same manner as an alternative writ of mandamus and a copy of the papers on which it was granted must likewise be deUvered (§ 2095). If no return is made, the relator is then entitled to an absolute writ. This return must be annexed to a copy of the writ and either dehvered in open court or filed in the office of the County Clerk (§2096). As in the case of mandamus, an alternative writ of pro- STATE WRITS 421 hibition cannot be quashed or set aside on motion for any matter involving the merits. An objection to the legal sufficiency of the papers on which it was granted may be taken in the return (§ 2097). A return when made by a party, must be verified, unless it consists only of objections to the legal sufficiency of the papers on which the writ was granted. A party may unite with the court or judge in a return or adopt such return (§2098). Pleadings are not allowed. The relator may controvert by affidavit any allegation of new matter contained in the return and the hearing may either be at the Appellate Division, or at Special Term as the case may be or the court may direct a trial by jury (§ 2099). If the relator succeeds, a final order is made awarding an absolute writ of prohibition and such writ thereupon issues (§2110). 6. Assessment of Damages. Whenever the governor is authorized to take possession of real property for the use of the people and cannot agree with the owner for its purchase, he may cause application to be made to a special term of the Supreme Court for a writ of assessment of damages (§2104). This takes the place of the old writ of ad quod damnum (§2103). Proceedings on the governor's behalf are conducted by the attorney general or the district attorney (§2105). The writ is directed to the sheriff (§2106). It describes the real property to be taken and commands him to simimon a jury to determine the amount of the damage (§2107). The jury view the property and in their discretion hear testimony. They then make an inquisition stating the sum to be paid by the people and the sheriff files it with the writ and his return in the office of the clerk of the county where the property is situated (§2111). Within three months after the writ, return 422 CODE PRACTICE IN NEW YORK and inquisition have been filed, the attorney general or district attorney publishes a notice directed to all the owners and persons interested, requiring them to show cause why the inquisition should not be confirmed, or if the governor so directs, why it shoxild not be set aside (§ 2112). At the hearing, the court examines into the inquisition and hears such allegations and afiidavits or other written proofs as may be presented and either sets aside or confirms the inquisition (§§ 2113, 2114). In case of confirmance, the state treasurer pays to the governor the amount found due and the governor pays it into court, whereupon title to the property becomes vested in the state (§§ 2115, 2116). The United States may institute similar proceedings to condemn lands for its use when the legislature of the state has consented to such taking (§ 2119; Matter of the Petition of the U. S., 96 N. Y. 227). 7. Certiorari to Review. This writ is in the nature of an appeal from the judg- ments and judicial determinations of inferior tribunals and officers, exercising judicial powers and requires them to send into the court from which the writ issues, the proceedings in a cause or matter already tenninated (see People ex rel. Corwin v. Walter, 68 N. Y. 403, 408). The Code (§ 2120) authorizes its issuance (a) where the right thereto is conferred by statute or, (b) where it may be issued at common law and has not been expressly abol- ished by statute. Hence "there are now known to the law three writs of certiorari: first, the common law writ; second, the statutory writ under the Code, and third, a special statutory proceeding to review questions of tax- ation, which may be designated as a writ of review de novo. The first brings up the record for inquiry into regularity and jiirisdiction, and may also be resorted to STATE WRITS 423 in bringing up for review criminal proceedings; and per- mits of an examination of the evidence to determine whether the proof is sufficient to warrant the relator being held. The second brings up both record and pro- ceedings and not only permits an inquiry into jurisdiction and regularity, but also a consideration of the evidence, both as to errors committed and the sufficiency of the testimony to sustain the action of the inferior tribunal. The last embraces all that is contained in the other two; but in addition authorizes a rehearing of the question at issue and the introduction of additional proofs bearing thereon. In the first two writs, the return of the person, officer or body to whom the writ is addressed is conclusive upon all questions of fact stated therein. Upon the last named writ, the petition of the relator and the return of the commissioners are regarded simply as pleadings in the proceeding" (People ex rel. Citizens' Lighting Co. V. Feitner, 81 App. Div. 118, 120). The proceedings rel- ative to the certiorari to review questions of taxation will be found m §§ 290-295 of the Tax Law. No further mention of it need be made here. There is also a writ for the purpose of supplying defects in the record or other papers before the issuing court where adequate reUef cannot be obtained by means of an order (§ 2124). But we shall here deal only with certiorari in its ordinary form, i. e., imder the Code. The writ is declared issuable "to review the determin- ation of a body or officer" (§ 2120; cf. § 2146). But it wiU not lie to review a determination by a court of record or a judge thereof (§2121); nor a determination not finally determinative of the rights of the parties; nor one which can be adequately reviewed by appeal; nor where the body or officer has statutory authority to rehear the matter unless the determination was made upon a re- hearing or the time therefor has elapsed (§ 2122). In 424 CODE PRACTICE IN NEW YORK other words, the function of the writ is to bring about a review in cases where a formal appeal will not lie. It "is appropriate only to review the judicial action of in- ferior courts or of public officers or bodies exercising un- der the law judicial functions. . . . -When the action of a public officer, or of a public body is merely legisla- tive, executive or administrative, although it may in- volve the exercise of discretion, it cannot be reviewed by certiorari" (People ex rel. Trustees of Jamaica v. Board of Supervisors, 131 N. Y. 468, 471). It therefore differs in this respect from mandamus, which as already stated, lies to compel the doing of a ministerial act, and from habeas corpus in that the latter writ brings up only the question of jurisdiction. Thus certiorari will not lie to review the action of a police commissioner in dismissing the relator from the force where his guilt was not disputed and the only ques- tion was as to the propriety of the punishment (People ex rel. Morrissey v. Waldo, 212 N. Y. 174), nor the action of the commissioner of highways in canceling a contract for the construction of a highway, since it is wholly administrative (Matter of Standard Bitulithic Co., 212 N. Y. 179). Nor is the removal by a commissioner of buildings of a subordinate without trial to be regarded as a judicial act, where such subordinate has no right to a trial (People ex rel. Kennedy v. Brady, 166 N. Y. 44). So the determination of a municipal civU service com- missioner in classifjdng positions, though involving the exercise of judgment and discretion is more of a legis- lative or executive character than judicial or quasi- judicial and hence is not reviewable upon certiorari (People ex rel. Schau v. McWUliams, 185 N. Y. 92). On the other hand, it was held that certiorari would lie in the following cases : To review the action of a police commissioner in dismissing an inspector on charges after STATE WRITS 425 a trial (People ex rel. Hayes v. Waldo, 212 N. Y. 156, where dismissal was affirmed); to review a determina- tion by the board of railroad commissioners that a certif- icate issue that public convenience and necessity require the construction of a proposed railroad (People ex rel. Steward v. Board of Railroad Comrs., 160 N. Y. 202); to review the determination of commissioners appointed to estimate the damage sustained by landowners through a change of street grade (Matter of Fitch, 147 N. Y. 334) ; to review the proceedings of the state board of railroad commissioners in giving permission to discontinue a station (People ex rel. Loughran v. Board of Railroad Comrs., 158 N. Y. 421); to review the determination of a military board appointed to examine into the moral character, capacity and general fitness for service of a commissioned officer in the National Guard (People ex rel. Smith v. Hoffman, 166 N. Y. 462). The writ must be granted and served within four months after the determination becomes final and binding (§ 2125), except in certain cases of disability (§ 2126). An appUcation for certiorari must be founded upon affidavit or verified petition which may be accompanied by other written proof. It is granted at a term of the Appellate Division or at a Special Term of the Supreme Court and the granting or refusal is discretionary (§§ 2127, 2123). The usual notice must be given iulless a shorter time is fixed by an order to show cause (§ 2128, Rule XXXVII). The following is a form of petition (taken from People ex rel. Grogan v. York, 166 N. Y. 582). / 42G CODE PRACTICE IN -NEW YORK Supreme Court of New York, County of New York. The People of the State of New York ex rel. Thomas R. Grogan, Plaintiff, Bernard J. York and (naming other defendants) as Police Com- sioners of the City of New York, Defendants. To the Supreme Court of the State of New York: The petition of Thomas R. Grogan respectfully shows to this Honor- able Court. I. That your petitioner is a citizen of the United States and a resident of the City and County of New York. II. That on or about the day of , 19 , and for two years prior thereto, your petitioner was a member of the poUce force of the police department of the city of New York, to wit: a patrolman, duly appointed and holding office as such in said depart- ment. III. That on or about the day of , 19 , your petitioner was tried before one of the commissioners of the board of police of the police department of the city of New York, on a charge of being absent without leave. That upon your petitioner's said trial, mmierous witnesses were examined, but none of them were sworn, nor was there any oath administered to anj' of them. That as your petitioner is informed by Louis J. Grant, Esq., his attorney, and verily believes it is most material, so far as your petitioner's rights are con- cerned, to have all of the TOtnesses called at your petitioner's said trial sworn, and their testimony given under oath. IV. That although the evidence was wholly insufficient and improper to convict your petitioner of said charge, and although none of the witnesses were sworn at your petitioner's said trial, yet the board of police commissioners of the police department of the city of New York did adjudge your petitioner guilty of said charge, and as a punishment therefor dismissed him from said office in said department and thereby terminated his connection therewith. That as your petitioner is in- formed by his said counsel and verily believes, such judgment of con- viction was wholly unwarranted and unsupported by any legal evi- dence, and that the sentence of dismissal was illegal, irregular and con- STATE WRITS 427 trary to the rules and regulations governing the police force of the police department of the city of New York and wholly against the weight of evidence. Wheeefore your petitioner prays that a writ of certiorari may issue out of this court, directed to the commissioners of the police force of the police department of the city of New York, conamanding them to certify and return to the clerk of this court all proceedings had and remaining before them in anywise relating to said trial, conviction and dismissal of your petitioner as aforesaid, and as to whether the testimony given at your petitioner's said trial was or was not given under oath. (Signature and Verification.) An order is then made directing that a writ of certiorari issue. If it is desired that proceedings be stayed, the order and writ should so provide, since certiorari does not in itself operate as a stay. In such cases, the court may require security to be given (§ 2131). At the time of signing the order, the judge endorses his allowance on the writ and thereupon the writ itself is issued by the clerk. Certiorari must be made returnable within 20 days after its service at the office of the clerk of the court. Of course, if issued in the Supreme Court, this means the county clerk (§ 2132). The following is a form of writ (taken from People ex rel. Grogan v. York, supra): The People of the State of New York to Bernard J. York and (naming the other defendants) Commissioners composing the Board of Police Commissioners of the Police Department of the City of New York. Greeting: Being informed in our Supreme Court of the State of New York by the petition of Thomas R. Grogan dated the day of , 19 , that in certain proceedings lately had before you, against said Thomas R. Grogan, divers errors have been com- mitted to the prejudice of the said Thomas R. Grogan, and being willing for certain reasons to be certified of your judgment, action and pro- ceedings thereon and of all affidavits, petitions, notices, documents and your proceedings and other writings before you in relation thereto, and as to whether the testimony given at your petitioner's said trial was or was not given under oath. We therefore do command you that you certify and send to the 428 CODE PRACTICE IN NEW YORK office of the clerk of the CouBty of New York in the Court House in the Citj' of New York within twenty days after the service of this writ exclusive of the day of service, all and singular the act, acts and pro- ceedings by you had in the premises and all affidavits, petitions, notices, writings, documents, and other proceedings and things before you, to- gether with your action, decision and proceedings in the premises of the removal of Thomas R. Grogan heretofore a member of the poUce force of the police department of the City of New York, in any way or manner relating thereto, with this writ and as to whether the testimony given at your petitioner's said trial was or was not given under oath, that we may thereupon cause to be done in the premises what shall be of right and according to law. Witness, Hon. Edward Evans, one of the Justices of our Supreme Court, at the County Court House in the Borough of Manhattan in the City of New York on this day of , 19 . By the Court, John Jones, (Seal.) Clerh. Charles Carter, Attorney for Relator. Endorsed: The within writ is hereby allowed this day of , 19 . Edward Evans, Justice of the Supreme Court of the State of New York. The writ when directed to a person by name or title or to a municipal corporation, must be served upon each officer or other person to whom it is so directed or upon the corporation in the same manner as a summons, except where directed to a court or to the judges of a court, having a clerk, service may be made by filing the writ with the clerk, and when it is to be served upon any other board or body or the members thereof, it may be made as prescribed in the case of an alternative writ of mandamus (§2130). The clerk with whom the writ is filed and each person upon whom it is served must make and annex to the writ or the copy served, a retm-n with STATE WRITS 429 a transcript annexed and certified, of the record or pro- ceedings and a statement of all other matters specified in and required by the writ (§ 2134). If a return is de- fective, the court may direct a further return. An omis- sion to make a return or a further return may be punished as a contempt. But a judge or clerk cannot be punished xmless the relator has paid him the proper fees (§ 2135). A person interested in the determination may be brought in and the Appellate Division may direct that notice be given (§2137). The cause is heard in the Appellate Division, the pro- cedure being in general similar to that followed in the case of appeals. Either party may notice for hearing (§ 2138). This section likewise provides that the cause '^must be heard upon the writ and return and the papers upon which the writ was granted." It has been held that this "does not mean that the court is at Uberty to look beyond the return and to consider the facts stated in the petition and accompanying papers; unless the re- tm-n made by the respondent should be an admission of those facts or the equivalent of an admission" (People ex rel. Miller v. Wurster, 149 N. Y. 549, 554). "The re- tmn must be taken as conclusive and acted on as true. If false in fact, the remedy is in an action for false return ; if insufl&cient in form, by compelling a further and more specific return" (People ex rel. Lester v. Eno, 176 N. Y. 513, 518). In the case just cited, certiorari had been issued, to review the determination of a town board in disallowing a claim. The only matter in issue was the employment of the relator, by the town board of health. The retiu-n made by a majority of the town board specifically denied such employment. The return being conclusive, the writ was here dismissed. If, however, the return is silent as to material allegations of facts, contained in the petition, the presumption is 430 CODE PRACTICE IN NEW YORK that the officers making the return intended to admit these allegations (People ex rel. Keim v. Desmond, 186 N. Y. 232). Furthermore, if the officer or party whose duty- it is to make a return, dies, absconds, removes from the state or becomes insane, there being no other officer or person from whom a sufficient return can be procured, the court may permit affidavits or other written proof to be produced. It may also permit either party to pro- duce 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, where the facts relating thereto are not sufficiently stated in the return and cannot be made to appear by means of an order for a further return (§ 2139; People ex rel. Campbell V. Partridge, 99 App. Div. 410, affimd. 180 N. Y. 542). ' Section 2140 limits the questions involving the merits to be determined on the hearing. The court can then con- sider whether the body or officer had jurisdiction of the subject-matter; whether its or his authority had been pursued as required by law; whether any rule of law had been violated to the prejudice of the relator; whether there was any competent proof of all of the facts neces- sary to be proved and if so, whether there was upon all the evidence, such a preponderance of proof against the existence of any of these facts that the verdict of a jury would be set aside as against the weight of evidence. This section discloses how the operation of the writ has been extended. The difference between the common law certiorari and the statutory certiorari has already been pointed out. It wiU be noted, therefore, that the court may now inquire not only as to the jurisdiction of the body or officer making the determination which is the subject of review and whether the mode required by law has been pursued, but also whether any legal rules have been violated to the relator's prejudice and may STATE WRITS 431 examine the facts so far as to ascertain whether the de- termination was supported by evidence or was against the preponderating weight of evidence (People ex rel. Cook V. Hildreth, 126 N. Y. 360, 364; for illustrative cases showing the power of the court to review, see People ex rel. Haverty v. Barker, 1 App. Div. 532, affimd. 149 N. Y. 607; People ex rel. Shiels v. Greene, 179 N. Y. 195; People ex rel. Brisbane v. ZoU, 97 N. Y. 203). Upon the hearing the court may make a final order annuling or confirming wholly or partly or modifying the determination reviewed as to any or all of the parties (§ 2141), and when appropriate, may direct restitution (§ 2142). Costs are in the court's discretion (§ 2143). As was stated, when roandamus was considered, if it appears that the latter remedy is appropriate rather than certiorari or vice versa, the one may be substituted for the other, and the court may by amendment correct defects and irregularities in form or procedure, bring in necessary parties, and award appropriate rehef (§ 2148a). CHAPTER XIX SPECIAL PROCEEDINGS INSTITUTED V/ITHOUT WRIT 1. Summary Proceedings to Recover Real Property. 2. Discovery of Life Tenant's Death. 3. Appointment of the Committee of an Incompetent. 4. Disposition of the Land of an Infant or Incompetent. 5. Change of Name. 1. Summary Proceedings to Recover Real Property. The Code provides in considerable detail, a naethod by which a tenant who holds over, defaults in payment of rent, etc., may be removed smnmarily (§§ 2231-2233). The procedure is to present a petition to the county judge or to one of the inferior judges. In New York City, proceedings are usually in the Municipal Court (§§ 2234- 2237) . A precept is then issued directed to the person in possession, requiring him to remove from the property or show cause why possession should not be deUvered (§§ 2238, 2239). The precept is served by dehvering a copy to the person to whom it is directed, together with a copy of the petition and at the same time showing the original precept. If the person to whom it is directed re- sides in the city or town where the property is situated but is absent from his dwelUng house, service may be made by making deUvery to a person of suitable age and discretion who resides there or if such a one cannot be found, by delivery at the property. If service by any of the foregoing methods cannot be made, a copy of the precept and petition may be affixed upon a conspicuous part of the property (§ 2240). It is the duty of the person 432 SPECIAL PEOCEEDTNGS INSTITUTED WITHOUT WRIT 433 to whom a copy of a precept directed to another is de- livered, to deliver it to the person to whom it is directed if he can be found within the same city or town or if he cannot be found, to his agent, and if neither can be found to the judge or justice who issued it (§ 2241). On the return day, the petitioner unless the adverse party appears, makes due proof of service (§ 2243). The person to whom the precept is directed or his landord, or any person in possession or claiming possession, may file an answer containing denials or new matter con- stituting a legal or equitable defense or counterclaim (§ 2244). Then the issues are tried, either party having the right to demand a jury (§ 2247). If the verdict or decision is in favor of the petitioner, a final order is made awarding delivery of possession or directing removal of the occupant (§ 2249) . Then a warrant is issued direct- ing the sheriff, constable or marshal to remove all persons and put the petitioner into possession (§2251). In cer- tain cases, the execution of the warrant may be stayed upon the lessee or tenant giving an undertaking (§§ 2254, 2255) . Within one year after the execution of the warrant, the lessee has a right to redeem where the proceeding was foimded on non-payment of rent and the unexpired term exceeds five years when the warrant was issued (§ 2256), or there may be redemption by a judgment creditor or by a mortgagee of the lease (§§2257-2259). 2. Discovery of Life Tenant's Death. This proceeding being somewhat unusual will be summa- rized very briefly. One who is entitled to real property after the death of another, having a prior estate, may, not oftener than once in each year, apply on notice and by petition to a Special Term of the Supreme Court for an order directing the production of the Ufe tenant. If the petition is granted, the court either issues a commission 434 CODE PKACTICE IN NEW YORK (which is done where the person whose death is in question is or lately was without the state), for the purpose of ob- taining a view of him and taking testimony respecting his identity, or the court may make an order directing the adverse party to produce him before the court or a ref- eree or in default prove that he is Uving. If a reference is ordered, the referee states in his report whether any person was or was not produced before him as being the person whose death is in question with the proofs of identity, or if no one is produced, the proofs upon the question whether he is living. If he is not produced or is not proved to be alive, an order is made declaring that he is presumed to be dead and directing that the petitioner be let into possession. But possession of property awarded to the petitioner on the presumption of death must be restored to the person evicted upon proof that the person presumed to be dead is living (§§ 2302-2319). 3. Appointment of the Committee of an Incompetent. Both the County Court (§ 340, subd. 4), and the Su- preme Court (§ 2320), have jurisdiction over the custody and property of one incompetent in consequence of lunacy, idiocy, habitual drunkenness, or imbecility aris- ing from old age or loss of memory and understanding or other cause, and must preserve his property from waste or destruction, provide for the payment of his debts and for his safe keeping and the maintenance and education of the incompetent and his family. This is exercised by means of a conmiittee of the person or property (§§ 2321, 2322). Any person, even a stranger (Matter of Burke, 125 App. Div. 889; Appeal dism., 194 N. Y. 541), may present a petition for the appointment of such a com- mittee (§§ 2323, 2323a, 2324, 2325). If real property or any interest therein is intended to be affected, the peti- tioner files a lispendens (§ 2325a). SPECIAL PROCEEDINGS INSTITUTED WITHOUT WRIT 435 When the alleged incompetent is a non-resident and a committee, curator or guardian of his property has been appointed pursuant to the laws of his residence, the court may make an order appointing the foreign committee, curator or guardian, on his giving security (§ 2326). If this is not done, the court makes an order directing either: (1) that a commission issue, or, (2) that the question of competency be tried by a jury. Also, where it appears that any person has acquired property frorri the alleged incompetent during his incompetency without adequate consideration, an order may be issued restraining the sale, assignment, disposition or incumbrance of the prop- erty or confessing judgment which shall become a hen during the pendency of the proceeding (§2327). In other words, reading together §§2325, 2326 and 2327, "it will be seen that all proceedings must be commenced by petition under § 2325. When so commenced, there are two courses open. If the alleged incompetent is a non-resident and has been so adjudged in the state of his domicile, the coiu-t may, in its discretion, follow the procedure specified in § 2326. ... If the alleged in- competent is not a non-resident, or being a non-resident has not been so adjudged in the state of his domicile, or if the court in its discretion declines to proceed under § 2326, proceedings must be had as prescribed in § 2327, and an inquisition be issued for the ascertainment of the fact of incompetency by a commission or a jury. If, how- ever, an order has been made under § 2326, the procedure prescribed in § 2327 is not applicable, for the first words of that section are, 'unless an order is made as prescribed as in the last section,'" (Matter of Curtiss, 134 App. Div. 547, 549; Affimd. 197 N. Y. 583). It has been said that "where it appears from the petition and affidavits that the court has jurisdiction of the person and of the matter and that the allegations if true, would presump- 436 CODE PRACTICE IN NEW YORK lively require the appointment of a committee, the court should not hear the merits of the case upon affidavits but send the matter to a jury or commission, although upon all the affidavits, for and against, the court be of opinion that if such were the evidence given upon the hearing, the proceedings should be dismissed, or the find- ings of incompetency set aside " (Matter of Milchsack, 43 Misc. 586, 587; Matter of Roberts, 64 Misc. 118). But "in order to justify the issuance of a commission, two things must presumptively appear to the satisfaction of the court: first, that the person proceeded against is incompetent and, second, that a committee ought in the exercise of a sound discretion to be appointed. It is not sufficient that incompetency alone is estabUshed, for it may well be, even where incompetency exists, that the situation and surroundings of the incompetent are such that no necessity exists for the appointment of a com- mittee and that no good purpose would be served thereby" (Matter of Burke, 125 App. Div. 889, 890; Appeal dism. 194 N. Y. 541). The commissioners then proceed to issue a precept to the sheriff requiring him to summon a jury of not less than twelve and not more than twenty-four and they in- quire into the matters set forth in the petition and into the value of the property of the alleged incompetent and the amount of his income. At least twelve jurors must concur in a finding (§§ 2328-2331). The inquisition is signed by the concurring jurors and by the commis- sioners or a majority of them and is retained and filed with the clerk (§2332). It has been seen that in lieu of a commission, the ques- tion may be tried by a jury at trial term. Here the order must state definitely 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 (§.2334). Where the SPECIAL PROCEEDINGS INSTITUTED WITHOUT WRIT 437 petition alleges incompetency by reason of lunacy (which under § 28 of the General Construction Law "includes every kind of unsoundness of mind except idiocy"), the inquiry upon the execution of a commission or the trial at trial term must be confined to the question of incompetency at the time of the inquiry (Matter of Preston, 113 App. Div. 732), and testimony respecting anything said or done by the alleged lunatic or his demeanor or state of mind more than two years before the hearing or trial, is not receivable unless the court otherwise specially directs (§2335). Upon the return of the commission with the inquisition or the rendering of the verdict of a jury, the court must either direct a new trial or hearing or make such final order as justice requires, e. g., appoint a committee (§ 2336; Matter of Clark, 57 App. Div. 5; Appeal dism. 169 N. Y. 595; 77 App. Div. 633; 175 N. Y. 139; Matter of Burke, 125 App. Div. 899; Appeal dism. 194 N. Y. 541). Security is given by the committee before entering upon the execution of his duties (§ 2337) and he is at all times under the control of the court (§ 2339) . A committee of the property may maintain an action or special pro- ceeding (§ 2340) and is required in the month of January in each year to file an inventory (§§ 2341, 2342). When the incompetent person becomes competent to manage himself or his affairs, the court must make an order dis- charging the committee (§ 2343), and if the incompetent dies, the power of the committee ceases and the property must be administered and disposed of as if a committee had not been appointed (§ 2344). The coiu"t has author- ity to compel the specific performance of a contract made by an incompetent person while he was capable and of any contract in relation to devised or inherited lands made by an ancestor and may direct the committee to ex- ecute all necessary conveyances and acts (§ 2344a). 438 CODE PRACTICE IN NEW YORK 4. Disposition of Lands of Infant or Incompetent. Under § 2344a just cited, power is given to the court to compel perfoimance of a contract by an incompetent through his committee, in certain cases. Section 2345 provides for an action against, an infant or incompetent to procure a judgment directing a conveyance of real property or of an interest therein: (1) where the infant or incompetent is seized or possessed of such realty or interest by way of mortgage or only in trust for another, or (2) where a vaUd contract for a sale or conveyance has been made but cannot be carried out by reason of the infancy or incompetency of the person in whom title is vested (§ 2345;' see Danahy v. Fagan, 63 Misc. 658). The action may be maintained by a person entitled to the conveyance and also in the second case mentioned, by the executor or administrator of the person who made the contract or of a person who died seized or possessed of the realty or by an heir or devisee of either of those persons, to whom it descended or was devised; also by the committee of the incompetent (§ 2346). A judgment directing such conveyance is not rendered unless the court after hearing the parties, is satisfied that it should be made. It may direct the guardian or committee or a special guardian appointed in the action to execute any conveyance or do any other act necessary to carry the judgment into effect (§ 2347). The court may hkewise direct a sale, conveyance mort- gage, release or lease of the real property or interest belong- ing to an infant or an incompetent, in certain cases such as where the personal property and the income from the real are insufficient for the payment of his debts and for the maintenance and education of himseK and his family, or where his interest will be substantially promoted (§ 2348). Now the Supreme Court, acting as a court of equity, possesses inherent jurisdiction for some purposes SPECIAL PROCEEDINGS INSTITUTED WITHOUT WRIT 439 over the persons and estates of infants, as successor to the court of chancery. But this power of management and disposition exercised by the chancellor came to be regarded as extending only to the personal estate of infants and to the income of their real property. It did not extend to the binding of the inheritance. Hence equity has no inherent power to direct a sale or mortgage of the infant's real property. Its authority in this respect is purely statutory and can only be exercised under such circumstances and in such manner as the statute directs and the prescribed method must be strictly pursued (Losey v. Stanley, 147 N. Y. 560; Warren v. Union Bank of Rochester, 157 N. Y. 259). The procedure is to present a petition by the general guardian or guardian of the property of the infant, or by the committee of the property of the incompetent or by any relative or other person in behalf of either. Where the appUcation is in behalf of an infant of fourteen or up- ward, he must join (§ 2349). The contents of the petition are specified in § 2350 and in Rule LV. The application cannot be granted unless a committee of the incompetent's property has been appointed and in case of an infant, a special guardian. Both committee and guardian must file a bond (§§ 2351-2353; Rule LVIII). Upon the pre- sentation of the petition and filing of the bond, an order is made appointing a referee to take testimony and report (§ 2354). In his report, the referee states whether a sale mortgage or lease of the premises or any part would be beneficial and the particular reason therefor and whether the infant or incompetent is in absolute need of having some and what portion of the proceeds in addition to what he might earn by his own exertions; the value of the property or interest, whether there is any dower right, fife estate or estate for years, the terms and conditions of sale, &c. The facts in relation to value must be 440 CODE PRACTICE IN NEW YORK proven by evidence of at least two disinterested persons in addition to that of the petitioner (Rule LVI). The court if it approves the referee's report, makes a final order of confirmance directing that the estate or interest be mortgaged, let, sold, released or conveyed by the special guardian or committee, giving directions how this shall be done (§ 2355) . The special guardian or committee then enters into an agreement for sale or otherwise and reports it to the court. The court there- upon makes an order confirming it and the proper in- strument is executed (§ 2356). But the property must not be sold, leased or mortgaged contrary to the pro- visions of a will by which it was devised or a convey- ance or other instrument by which it was transferred to the infant or incompetent (§ 2357) . The infant or incompetent has the same interest in the proceeds that he had in the property itself (§ 2359), which proceeds are brought into court and their disposition and in- vestment directed (§§2360, 2361; Rules LVIII, and LIX). 5. Change of Name. Strictly speaking, it is not necessary for an individual to take formal proceedings to change his name. Legally he may name himself, but the "statutory method has some advantages because it is speedy, definite and a matter of record so as to be easily proved, even after the death of all contemporaneous witnesses. In one respect, however, the statute may limit the common law right, in that it provides that on and after the day specified in the order of the court for the change to take effect, the applicant shall 'be known by the name which is thereby authorized to be assumed and by no other name ' (§ 2415). It may well be, therefore, that after a man has acquired a name by judicial decree, he cannot acquire another without SPECIAL PROCEEDINGS INSTITUTED WITHOUT WRIT 441 resorting to the courts" (Smith v. U. S. Casualty Co., 197 N.Y.420, 429). The procedure is to present a petition (§ 2410), speci- fying the grounds of the application, the name, age and residence of the individual whose name is to be changed and the name which he proposes to assume (§ 2412). The following is a form: Supreme Court of New York, County of New York. ' In the Matter of the Application of Andrew Atkins for leave to change his name to Benjamin Beistow. To the Supreme Court of New York, in and for the County of New York: The petition of Andrew Atkins respectfully shows that he is of the age of twenty-five years, and resides at No. street in the Borough of Manhattan, in the City, County, and State of New York. That he desires to assume another name than that now held by him, and that the name that he proposes to assume is Benjamin Bristow. That the grounds for his application for such change of name are as follows (state them) : That your petitioner is unmarried (or married). That he is not now a party to any action or proceeding in the courts; that there are no judgments against him; and that there is no out- standing bond or commercial paper, made, indorsed or accepted by him in the name which he wishes to abandon (or as the case may be). That your petitioner was bom on the day of , 19 , in the Borough of Manhattan, in the City, County and State of New York and the name of his father is Anthony Atkins and the name of his mother is Alice Atkins. No previous application for an order praying for a change of name has been made by your petitioner to this or any other court. Wherefore your petitioner prays the order of this court granting leave to assume the name of Benjamin Bristow in place of that of Andrew Atkins, his present name, pursuant to the provisions of Title 442 CODE PRACTICE IN NEW YORK X of Chapter 17 of the Code of Civil Procedure and for such other and further relief as may be proper. Dated, New York the day of , 19 . Andrew Atkins, Petitioner. (Verification.) Some of the foregoing allegations are not specifically provided for by the Code but were required in Matter of Hamilton (10 Abb. N. C. 79), and this case seems to have been followed in practice. If the petitioner is immarried, it is usual to add an acknowledged consent by the wife or present her concurrent petition. If the petition be to change the name of an infant and is made by the next friend, notice 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 general guardian or guardian of the person. The court may dispense with or make special provision for notice in cases where there is no father or mother or both reside without the state or cannot be found and there is no guardian within the state (§ 2413) . The court may then make an order authorizing the petitioner to assmne the name proposed on a specified day, not less than thirty days after its entry. The order must be entered and the papers on which it was granted, filed within ten days thereafter. It also directs publication within ten days in a designated newspaper at least once (§ 2414). The following is a form of order: SPECIAL PROCEEDINGS INSTITUTED WITHOUT WRIT 443 At a Special Term of the Supreme Court of New York in and for the County of New York, held at Part II thereof, in the County Court Houvse, in the Borough of Manhattan, in the City of New York, on the day of ,19 . Present — ^Hon. Edward Evans, Justice. In the Matter of the Application of Andrew Atkins for Leave to Change his Name to Benjamin Bristow. Upon reading and filing the petition of Andrew Atkins, verified the day of , 19 , praying for leave to assume the name of Benjamin Bristow in place of his present name (in case of an infant where the petition has been made by a next friend, add "with proof of due service of notice of the presentation of said petition at this time and place upon "), and the court being satis- fied that there is no reasonable objection to the petitioner's assuming the name proposed (in case of an infant, insert "and that the interests of [naming infant| will be substantially promoted by said change") and upon motion of Charles Carter, Esq., attorney for said petitioner, it is hereby Ordered that the said Andrew Atkins be and he hereby is authorized to assume the said name of Benjamin Bristow in place of his present name of Andrew Atkins on the day of , 19 , upon his complying with the provisions of § 2414 of the Code of Civil Pro- cedure, viz; that within ten days after the making of this order, he caused it to be entered and together with the papers upon which it was granted, to be filed in the ofiice of the Clerk of the County of New York and that he cause a copy of this order to be published within ten days after this order is entered, in the New York Law Journal, a news- paper published in tl^ County of New York, and that within forty days after the maJdng of this order, he cause to be filed and recorded an affidavit of the publication thereof in the office of the Clerk of the County of New York, and that after said requirements are complied with, the said petitioner shall on and after the day of , 19 , be known by the name which he is hereby authorized to assume and by no other name. Enter, E. E. J. S. G. 444 CODE PRACTICE IN NEW YORK If the order shall be fully complied with and within forty days after its making, an affidavit of publication shall be filed and recorded, the petitioner shall on and after the specified date be known by the name which he is thereby authorized to assume and by no other name (§ 2415). CHAPTER XX PROCEEDINGS IN SURROGATES' COURTS 1. In General. 2. Probate of Wills. 3. Letters of Administration. 4. Administration, Distribution and Accounting. 5. Revocation of Letters. 6. Sale of Decedent's Realty. 7. General Guardians. 8. Probate of Heirship. 1. In General. Surrogates' coxirts deal with the administration of de- cedents' estates and with the persons and property of infants. There" is a surrogate of each county though in those having a population of 40,000 or less, the county judge may also act as surrogate (Const., Art. VI, § 15). Two surrogates sit in New York County and the court is there divided into a trial term where all contested probate proceedings are heard and a term called chambers where are heard all other matters (§ 2506). The court is a court of record (Judiciary Law, § 2). The summons in the surrogate's court is called the citation and proceedings therein must usually be com- menced by the issuance of the citation upon presentation of a petition (§ 2518). The petition is first presented and as prayed for therein, the citation issues, thus reversing the process in the ordinary action where the summons precedes the complaint. The citation is made return- able before the surrogate not more than four months after date (§ 2523), and requires the parties to show cause why the rehef demanded should not be granted (§2522). 445 446 CODE PRACTICE IN NEW YORK Where the names of the persons cited are unknown and cannot be ascertained, they may be designated by fic- titious names and by descriptions and by showing their connection with the decedent and their interest in the property or naatter in question (§ 2524). The service of a citation differs somewhat from the service of a summons. Any person if over eighteen years, although a party to the proceeding, may make service (§ 2529) . A copy must be deUvered to the person cited, and if he is imder the age of fourteen, to his parent, guardian, etc. If he has been judicially declared incom- petent, or is a corporation it is served as prescribed for a summons (§ 2525). If he is an infant or incompetent, an order may be made designating a third party to whom a copy of the citation must likewise be delivered (§ 2530) . The siu-rogate may direct substituted service (§ 2525), and service without the state or by publication (§ 2526). Where it is necessary to cite known creditors and over fifty are residents, service may be made by pubhcation and mailing (§ 2525). Personal service may be made in any county of the state (§ 2522) . If upon a resident or upon a non-resident within the state, it must be made within the coimty or an adjoining county at least eight days before its return; in other counties, ten days; if without the state twenty days (§2529). The issuance and service of a citation may be waived either before or after the filing of the petition "by an in- strument in writing, signed, acknowledged or proved and duly certified" (§2511). Jurisdiction is also acquired without service of the citation where the party appears by attorney. The practice here differs from that in ac- tions at law for the written authority of the attorney to appear, "signed, acknowledged or proved and duly certi- fied shall be filed" (§§ 2511, 2533). PEOCEEDINGS IN SURROGATES' COURTS 447 The surrogate appoints a special guardian to protect the interests of an infant or incompetent party to a pro- ceeding who has no general guardian or cominittee or whose general guardian or committee does not appear or where the interests of the general guardian or committee are adverse to those of the infant or incompetent (§ 2534). A person cannot be appointed who is nominated by any party, but this does not preclude an infant over fourteen from nominating his own special guardian (§ 2534). Pleadings must be in writing and verified (§ 2519). There are no demurrers (Matter of Work, 76 Misc. 403, 404). Formerly the power of the surrogate to direct a jury trial of specific issues was very limited. This has been extended to cases where there are controverted questions of fact in any proceeding as to which there is a consti- tutional right to such method of trial, and in any pro- ceeding for the probate of a will. An order to that effect must be made if any party "seasonably demands the same" and if not demanded, a jury trial may be directed by the surrogate in his discretion. The trial may be had before the surrogate or at a trial term of the Supreme Coxu-t or in the County Court. Either of the Surrogates of the Coimty of New York may in his discretion, make an order transferring any special probate proceeding pend- ing therein to the Supreme Court (§ 2538). References may be ordered by the siurogate in any proceeding except to probate a will; these references may be to take evidence and report upon the facts, or upon a specific question of fact or to examine an account and hear and determine all questions arising upon its settle- ment subject, however,' to confirmation or modification by the surrogate. A referee's report is deemed confirmed as of course after a lapse of ninety days from the time it is submitted to the surrogate for his action, if mean- 448 CODE PRACTICE IN NEW YORK time he has not confirmed, modified or rejected it (§ 2536). "The determination of the rights of the parties to a spe- cial proceeding in a surrogate's court is a decree" (§ 2548). Transcripts may be procured of a decree directing the payment of money, as though the decree were a judgment, and such transcript, when filed and docketed in a county clerk's office has the same force and effect as a judgment (§ 2551). Execution is issued to the sheriff from the sur- rogate's court, and is made returnable to that court (§ 2553) . A surrogate's decree may be enforced by punish- ment for contempt, when it cannot be enforced by execu- tion, or where an execution has been issued and returned unsatisfied, or where the delinquent is an executor, ad- ministrator, guardian or testamentary trustee and the decree relates to the fund or estate in his charge (§ 2554). Costs are generally in the direction of the surrogate, and may be awarded to any party, and may be charged against a party personally or may be made payable out of the estate or fund (§§ 2744, 2745). They include all disbursements which may be taxed ia the Supreme Court (§ 2743). An appeal from a surrogate's decree or order lies to the Appellate Division (§ 2754). 2. Probate of Wills. Primarily the vaUdity of a will devising real property is governed by the law of the site and of personal property by the law of testator's domicile at the time of death (Decedent Estate Law, § 47). But to this rule there are exceptions. Thus : A will of (1) real or personal property, executed as pre- scribed by the laws of the state, or (2) a will of personal property executed without the state and within the United States, the Dominion of Canada or the Kingdom of Great PROCEEDINGS IN SURROGATES' COURTS 449 Britain and Ireland, as prescribed by the laws of the state or country where it is or was executed, or (3) a wiU of per- sonal property, executed by a person not a resident of the state according to the laws of the testator's residence, may be admitted to probate in this state (Decedent Estate L, §23). It is also provided (Code, § 2608) that the will of a citi- zen of the United States dying whUe domiciled or resident within the United Kingdom of Great Britain and Ireland or in any of its dependencies which affects property within the state and which shall have been admitted to probate within the foreign jurisdiction, shall be admitted to pro- bate in any county wherein there shaU be property iiffected thereby. ^ ' ' The right to have a will admitted to probate, the vahd- ity of the execution thereof or of the validity or construc- tion of any provision contained therein, is not affected by a change of the testator's residence made since the execu- tion of the will " (Decedent Estate L., §. 24). It will be noted, therefore, that a will of personal prop- erty may be admitted under the following conditions:' (a) If executed according to the law of New York. (b) If executed within the United States, the Dominion of Canada or the Kingdom of Great Britain and Ireland as prescribed by the laws of the place where it was exe- cuted. (c) If executed by a citizen of the United States dying while domiciled or resident within the Kingdom of Great Britain and Ireland or any of its dependencies and which has there been proven. (d) If executed according to the laws of testator's res- idence. A will of real property may be admitted : (a) If executed according to the law of New York. (b) If executed by a citizen of the United States dying 450 CODE PRACTICE IN NEW YORK while domiciled or resident within the Kingdom of Great Britain and Ireland or any of its dependencies and which has there been proven. Where real property within this state is devised or made subject to a power of disposition by a wiQ executed in conformity with the laws of this state of a person who was at the time of his death resident elsewhere, and such will has been admitted to probate, within the state or foreign coimtry where decedent resided and is filed or recorded there, a copy thereof and of the proofs or records or of their substance duly authenticated, may be recorded in the office of the surrogate of any coimty where real prop- erty is situated and such record shall be presumptive evidence of the will and of the execution thereof in any action or special proceeding relating to such real property (Decedent Estate L., § 44). This does not require that the foreign record show that the will was probated in ac- cordance with New York law, but merely that it was ex- ecuted in accordance therewith. Hence where the record merely shows that on probate, only one of two subscribing witnesses was examined, it is nevertheless presumptive evidence notwithstanding the New York statute requires both witnesses to be examined or that a failure to do so be excused (Bradley v. Krudop, 128 App. Div. 200). The surrogate's court has jurisdiction (1) where dece- dent was at the time of his death a resident of the county whether his death happened there or elsewhere; (2) where being a non-resident of the state he died within that county leaving personal property within the state or- which since his death has come into the state; (3) where being a non- resident of the state, he died without the state leaving personal property within that covmty and no other or which since his death has come into that county and no other; (4) where he was a non-resident and a peti- tion for probate or administration under (2) or (3) has PEOCEEDINGS IN SURROGATES' COURTS 451 not been filed in any surrogate's court but real property is situated within the county and no other (§ 2515). Where personal property is within or comes into two or more counties under the circumstances in (3) or real property is situated in two or more, under the circumstances in (4) the surrogates of these counties have concurrent juris- diction. But where a petition for probate or administra- tion has been filed with one of them his jurisdiction ex- cludes that of the other (§ 2516). A petition for jirobate may be presented by any person designated as executor, devisee, legatee, testamentary trustee or guardian or by a creditor or any other person in- terested in the estate or by any party to an action brought or about to be brought in which the decedent, if Uving, would be a proper party (§ 2609). There must be cited the husband or wife and the person designated as executor, administrator, trustee or guardian of the will in question and of any other will filed in the surrogate's office as well as every beneficiary in such other will; also if the Avill of- fered relates to real property, the heirs of the testator and if to personal property, his next of kin (§ 2610). The peti- tion must set forth the facts on which the jurisdiction of the court depends, the names and addresses of all parties interested and whether any of them are infants or incom- petents, etc., and must contain the usual prayer for relief (§§ 2521, 2609) . The following form is used in New York County: 452 CODE PRACTICE IN NEW YORK PETITION FOR PROBATE Surrogates' Court, County of New York. In the Matter of Proving the\ Last Will and Testament of When all parties waive citation all papers must be filed two days be- fore the day fixed Deceased, \ for the hearing, as a Will of Real and Personal Property To the Surrogates' Court of the County of New York: The petition of residing at No. in the Borough of City of New York, respectfully states That your petitioner execut named in the last will and testament of late of the County of New York, deceased; That said last wiU and testament, herewith presented and hereby offered for probate, relates to both real and personal property, and bears date the day of ,19 , and is signed at the end thereof by the said testa and by as sub- scribing witnesses The petition shall That petitioner does not know of any codi- fiSfe*o/ «*e samefe^ cil to Said last will and testament, nor is there any sZoZe^^ffice'lf to tlie best of h information and belief. New York County. That the said deceased was, at the time of h death, a resident of the County of New York and departed this life in said County, on the day of , 19 . That all the heirs, and all the next of kin of said testa , each person designated in the will herewith presented and hereby offered for probate ' as executor, testamentary trustee or guardian PROCEEDINGS IN SURROGATES' COURTS 453 and their residences and post office addresses are hereinafter mentioned in subdivisions a, b, c, and d hereof, as follows: a. The following named persons who £^re of full age and of sound mind : a of deceased ;,.f,S.''SLSwho resides at 3:^/r/ &^: ^ of deceased the petitton must who rCSldeS at substantially set forth the facts which 9, 01 O0CeasecL show what efforts i • i , have been made to as- WhO reSldeS at certain the same and a general description of the person, show- ing his connection with the decedent and his interest in (Ae matter. infant ^aZt%heth^ ^' "^^^ foUowing named persons who are infants over or not the infant has fourteen vcars of age : o general or testa- „ . . mentary guardian, a 01 deceased whether or not his | . , , father, or, if he be WhO reSldeS at dead, his mother, is living, giving the name and post office address of such per- son, and the name and post office ad- dress of the person vnth whom such in^ fant resides. Sec- tion 2621. inf^f^whith^ ^- '^^^ following named persons who are infants un- oT not the infant has ^q^ fourteen vears of age: a general or testa- ^ a r j j mentary guardian, a of dcceased whether or not his . . , , father, or, if he be who reSldeS at dead, his mother, is living, giving the name and post office address of such per- son, and the name and post office ad- dress of the person with whom, such in- fant resides. Sec- tion2521. 454 CODE PRACTICE IN NEW YORK and'^st'^officTad- d. The following named persons who are of full age trifinl TTt but of unsound mind: SLro^fOt: . a of deceased or insHtution having who resideS at the care or custody of the incompetent; also the facts regard- ing his incompetency arid the name and post office address of a relative or friend having an interest in his welfare. SecHon 25m. That the value of the real property in this State of which the testator died seized is dollars and that the value of the personal property of which said testator died possessed is doUars. Erase unnecessary rpi, j. -j 4. . i rj. 1. ■ • husband, allegations. ihat Said testa left h surviving no . , ' widow, child or children, no adopted child or children, no issue of any deceased child or children, no issue of any de- ceased adopted child or children, no father or mother, no brother or sister of the half or the whole blood, no issue of any deceased brother or sister, no grandfather, no grandmother, no uncle, no aunt, and no issue of any deceased uncle or aunt, except those hereinbefore men- tioned. That no petition for the .probate of the will herewith presented and hereby offered for probate, or for letters of administration on said estate, has been heretofore filed in this or any other Surrogate's Court of this State and that no other will of said testator has been filed in the Surrogates' office of New York County. That there is no person designated in the will here- with presented and hereby offered for probate as executor, testamentary trustee or guardian, except as hereinbefore mentioned. That there is no person named as executor, testa- mentary trustee, guardian, devisee, legatee or bene- ficiary in any other will of the same testator filed in the Surrogates' office of the County of New York. PROCEEDINGS IN SURROGATES COURTS 455 That the names and post office addresses of the de- visees, legatees and other beneficiaries named in the will herewith presented and hereby offered for probate, are as follows : 1. The following named persons have been herein- before mentioned : Name of Legatee, Devisee or Beneficiary- Post Office Address Value of Legacy or Devise 2. The following named persons have not been herein- before mentioned. Name of Legatee, Devisee or Beneficiary Post Office Address Value of Legacy or Devise 456 CODE PRACTICE IN NEW YORK (TO^lr t^Te^hZi "^^^^ ^'^^'■^ ^^^ ^^ persons interested in this proceed- bv the mill to hold, ing other than those hereinbefore mentioned. manage, or invest, ^ property for the ben- Wherefore your petitioner prays efit of another, Ae _,. -j. j • i i - i • , must execute a bond. Ihat a Citation to show cause issue herein to the Code Sections S639 i -uj ii -lj i*iii- and 260B. persons hereinbefore named, described, and mcluded m subdivisions a, b, c and d hereof, citing them to show cause why the last will and testament herewith pre- sented and hereby offered for probate should not be admitted to probate; That an order be granted directing the service of the citation personally without the State or by publication upon the persons hereinbefore named, described and included in subdivisions a, b, c, and d hereof who are not residents of the State of New York, and also upon the persons hereinbefore described and included in those subdivisions who and whose names or residences and post office addresses are unknown and cannot be ascer- tained; and That the last will and testament herewith presented and hereby offered for probate may be admitted to probate as a will of real and personal property and that letters testamentary may be issued to the execut who may qualify thereunder. Dated, New York, , 19 . Petitioner. County and State of New York, ss. : the petitioner named in the fore-, going petition, being duly sworn, depose and say that h ha read the foregoing petition subscribed by h and know the contents thereof; and that the same is true to h own knowledge except as to the mat- ters' therein stated to be alleged on information and belief, and that as to those matters h be- lieve it to be true. Sworn to this day of ,19 Petitioner. N. Y. Co. PROCEEDINGS IN SURROGATES' COURTS 457 The will shaU be filed with the petition unless the surrogate dispenses therewith, in which case it must be filed at least two days before the return day. In all cases, a copy of the wiU must be filed with the petition, accom- panied by an affidavit of two adults that they have com- pared the copy with the original (Rule 4, N. Y. Co.; cf. Rule 5 Kings Co.). A citation then issues as follows: CITATION The People of the State of New York, By the Grace of God, Free and Independent, To the heirs and next of kin of , de- ceased, Send Greeting: Whereas, , who resides at , the City of New York, has lately applied to the Surrogates' Court of our County of New York, to have a certain instru- ment in writing, relating to both real and personal property, duly proved as the last will and testament of ' who was at the time of h death a resi- dent of the County of New York, deceased. Therefore, you and each of you are cited to show cause before the Surrogates' Court of our County of New York, at the Hall of Records, in the County of New York, on the day of , one thousand nine hundred and at half past ten o'clock in the forenoon of that day, why the said will and testament should not be admitted to probate as a will of real and personal property. ' In Testimony Whereof, we have caused the seal of the Surrogates' Court of the said County of New York to be hereunto affixed. Witness, Honorable , a Surrogate ~of our said County of New York, at said county, the [L. S.] day of , in the year of our Lord one thousand nine hundred and Clerk of the Surrogates' Court. Note. — The original citation must be returned to the Probate Clerk before one o'clock P. M. on the day preceding the return day, with sworn proof of service. 458 CODE PRACTICE IN NEW YORK It has already been seen that service of citation may be waived by all parties interested who may consent that the will be admitted to probate. In New York County this is done in the following form; WAIVER OF CITATION Surrogates' Court, County of New York. In the Matter of Proving the Last Will and Testament of _. , ) Waiver of Citation. Deceased, As a Will of Real and Personal Property. To the Surrogates' Court of the County of New York: I, the undersigned, an heir of and next of kin of , deceased, do hereby appear in person and waive the issue and service of a cita- tion in the matter of proving the last will and testament of said de- ceased, bearing date Dated, , 19 . Signed in the presence of (Acknowledgment) Before the will is admitted, two at least of the subscrib- ing witnesses must be produced and examined, if so many are within the state and competent and able to testify (§2611; Matter of Huber, 181 App. Div. 635). If a witness does not attend voluntarily, his attendance may be procured by a subpoena. In cases where there is no contest, the examination is usually an informal pro- ceeding before the clerk. While a legacy or devise is void if given to a subscribing witness without whose testimony the wiU cannot be proved, such legatee or devisee is nevertheless competent and compellable to testify (§ 2545 ; Decedent Estate L., § 27) . It should be noted that there is a forfeiture only when the will cannot be proved without the testimony PROCEEDINGS IN SURROGATES' COURTS 459 of the witness (Caw v. Robertson, 5 N. Y. 125; Cornell V. Wooley, 3 Keyes, 378, 1 Abb. App. Dec. 441). Hence where the will is established upon the testimony of two witnesses, a third witness though examined will not lose his legacy (Matter of Owen, 48 App. Div. 507), and even if his testimony is necessary the witness may receive any share of the estate to which he would have been entitled if the will were not established, provided it does not ex- ceed the value of the devise or bequest (Decedent Est. L., § 27). An attorney is not allowed to disclose a communication made by his cUent to him or his advice given thereon in the course of his professional employment (§ 835), but this does not disqualify him from testifying as to the preparation and execution of a will, in case he is one of the subscribiag witnesses (§ 836). The request which the testator makes to an attorney to sign as a witness constitutes a waiver (Matter of Coleman, 111 N. Y. 220), which extends "to all communications arid transactions had between the testator and his attorney having refer- ence to the paper under consideration" (In re Lumb's WiU, 18 N. Y. Supp. 173, 174). In New York County, the witnesses subscribe and swear to the following depositions: Surrogates' Court, County of New York. In the Matter of Proving the Last Will and Testament of Deceased, As a Will of Real and Personal Property. County and State of New York, ss. : of , being duly sworn as a witness in the above entitled matter, and examined on behalf of the 460 CODE PRACTICE IN NEW YORK applicant to prove said will, says: I was acquainted with now deceased. The subscription of the name of said de- cedent to the instrument now shown to me and offered for probate as h -last will and testament, anii bearing date the day of in the year one thousand nine hundred and was made by the decedent at the City of New York, on the day of in the year one thousand nine hundred and , in the presence of myself and the other subscribing witness. At the time of such subscription the said de- cedent declared the said instrument so subscribed by h to be h last will and testament; and I thereupon signed my name as a witness at the end of said instrument, at the request of said decedent, and in h presence. The said decedent at the time of so executing said instrument, was upwards of the age of twenty-one years, and in my opinion of sound mind, memory and understanding, not under any restraint or in any respect incompetent to make a will. I also saw said , the other subscribing witness , sign h name as witness at the end of said wiU, and know that he did so at the request and in the presence of said decedent. I knew said decedent for j^ears before the execution of said in- strument. ' Witness swOrn and examined before me this i day of 19 J Assistant to the Surrogate, New York County. The death, absence from the state or mcompetency by reason of lunacy or otherwise of a subscribing witness, or the fact that he cannot be found within the state, or that he cannot be examined, by reason of his phys- ical or mental condition, may be shown by affidavit or other competent eAddence and the surrogate may then dispense with his testimony, though if absent merely, his testimony may be taken by commission. If all the subscribing witnesses are dead, incompetent or absent and their testimony has been dispensed with or if a subscribing witness has forgotten the occurrence or tes- tifies against the execution of the will or was not present PEOCEEDINGS IN SURROGATES' COURTS 461 at the execution, the will may nevertheless be estab- Ushed upon proof of the testator's and witnesses' hand- writing, and also of such other circumstances as would be sufficient to prove the wiU upon the trial of an action (§ 2612). In Matter of Burbank (104 App. Div. 312, 320), the Appellate Division indicated three methods by which a witness may be qualified to speak as to hand- writing : ' ' First : By having seen the party write. Second : By having seen letters or docmnents in the handwriting of the party whose signature is sought to be proved, having personally communicated with him respectiag them, or acted upon them as his, the party having known and acquiesced in such act, or by such adoption as in- duces a reasonable presumption of their being his own writing. Third: By comparison of handwritings by an expert." Having inquired "particxilarly into all the facts and circumstances," the surrogate, if satisfied with the gen- uineness of the will, the validity of its execution and the competency of the testator (§ 2614), makes a decree ad- mitting it to probate and directing that letters testament- ary issue to the executor or executors who quahfy. But before such letters are issued, there shall be filed a notice that the wiU has been offered for probate or pro- bated as the case may be, containing the name and ad- dress of the proponent and of each legatee, devisee or other beneficiary who has not been cited or has not appeared or waived citation, with proof of the mailing of a copy of such notice to such beneficiaries (§ 2616) . The object is to give added pubUcity among those who would probably be aware whether a later will or codicil was in existence. One named as executor may renounce his appoint- ment by an instrument in writing duly acknowledged or proved (§ 2628). If willing to serve, he qualifies by 462 CODE PRACTICE IN NEW YOBK taking an oath "that he will well, faithfully and honestly discharge the duties of his office " (§2568). If he fails to qualify or renounce the surrogate must make an order requiring him to qualify within a time specified and di- recting that in default of so doing, he shall be deemed to have renounced (§ 2627). Originally a bond was not required from an executor. This has been changed and now by § 2639, unless the wiU otherwise directs, a trustee or executor required to hold, manage or invest for the benefit of another must execute to the people a bond with sufficient surety or sureties in an amount to be fixed by the surrogate. Also a bond wiU be necessary if ob- jections are filed to his appointment and the surrogate finds that his circumstances are such that they do not afford adequate security to the creditors or persons inter- ested, or that he is a non-resident (§§ 2564, 2567) . Under such circumstances, or if he is about to remove from the state, the surrogate toay revoke his letters (§ 2569, subd. 6) . The surrogate may likewise refuse to grant letters to one who does not file an instrument designating the clerk as a person on whom service of process issuing from the surrogate's court may be made whenever the person so receiving letters cannot be found and served within the- state after due diligence used (§ 2565) . The following form is used in New York Coimty : PROCEEDINGS IN SURROGATES' COURTS 463 Surrogate's Court, County of New York. In the Matter of Proving the Last Will and Testament of , ^, Designation of the Clerk of the Surrogates' Court, as a per- son on whom service of process , may be made. Xyeceased, y c^nrtck Qon+irm o^^^ As a Will of Real and Personal Property. County and State of New York, ss : I, , an execut named in the last will and testament of , a resident of tha County of New York, deceased, do hereby designate the Clerk of the Surrogates' Court of the County of New York, and his successor in ofi&ce, as a person on whom service of any process issuing from the Surrogates' Court of the County of New York may be made, in like manner and with like effect as if it were served per- sonally upon me, whenever I cannot be found and served within the State of New York after due diligence used. I am a resident of No. , New York City. (Acknowledgment.) It has been assumed hitherto that the proceedings were uncontested. If an interested person wishes to attack the wUl, he must file objections at or before the close of the testimony taken before the surrogate on behalf of the proponent or at such subsequent time as the surrogate may direct and if a jury trial is desired, it shall be demanded (§2617). Whenever objections are filed, the proponent is required to file the notice specified in § 2716 already mentioned and serve the same on each of the parties therein named and upon any other persons directed by the surrogate to be notified (§ 2618). The practice here varies. In New York County it is custom- ary to proceed by petition and order as follows : 464 CODE PRACTICE IN NEW YOEK Surrogates' Court, County of New York. In the Matter of Proving the Last Will and Testament of Petition. Deceased. To the Surrogates' Court of the County of New York: The petition of respectfully shows: First. That your petitioner is the execut named in the last Will and Testament of , late of the County of New York, deceased. Second. That said last Will and Testament was duly filed for pro- bate, and that proceedings for the probate of said last Will and Testa- ment have been begun by your petitioner. Third. That objections have been filed to the probate of said last Win and Testament. Fourth. That a notice of probate to the legatees and devisees named in said will as specified in Section 2616 of the Code of Civil Procedure, has been filed in the Surrogates' Court. That said notice has the additional statement endorsed thereon that objections have been filed to the probate of said will as required by Section 2618 of the Code of CivU Procedure. Fifth. That all of the persons named in said notice are of full age and of sound mine except Wherefore, your petitioner prays for an order directing in what manner and within what time such notice shall be served on the per- sons therein named, and that the petitioner may have such other and further relief as the Court may deem proper. ' (Verification.) PROCEEDINGS IN SURROGATES* COURTS 465 At a Surrogates' Court held in and for the County of New York, at the Hall of Records, in the Borough of Manhattan, NeW York City, on the day of , 19 . Present— Honorable , Surrogate. In the Matter of Proving the Last Will and Testament of Order for Notice of Objections Filed. Sees. 2616, 2618. Deceased. On reading and filing the petition of , the petitioner and proponent herein , by which it appears that objections to the probate of said Will have been filed herein. Now, on Motion of , Attorney for the petitioner, the proponent herein, it is Ordered, that the notice of probate filed in this proceeding and the additional statement of objections filed, which statement is endorsed upon said notice, shall be served upon each of the persons named in said .Qotice stating that said objections will be heard at a Trial Term of the Surrogates' Court, of the County of New York, held at the Hall of Records, in said County, on the day of , 19 . It is Further Ordered that said notice and said additional statement shall be served personally on each of the persons therein named who are residents of the State of New York, at least eight (8) days before said day of hearing and that said notice ^and said additional statement shall be served upon each of the persons therein named who are not residents of the State of New York by depositing, at least sixteen (16) days before the said day of hearing, in the post-office at the County of New York, a copy of said notice and additional statement, contained in a securely closed post-paid wrapper, directed to each of them re- spectively, at the places therein designated as their post-oflice ad- 4b6 CODE PRACTICE IN NEW YORK Surrogate's Court, County of New York. In the Matter of Proving the Last , ^r ,■ r ^, ■ ■ ^., , Wm and Testament of ) Notice of Objections Filed and Notice of Probate Sec. 2616 T-, , I Sec. 2618 Deceased. To whose post-office address is whose post office address is whose post office address is the legatees, devisees and other beneficiaries named in the last will and testament of deceased, who have not appeared by attorney. TAKE NOTICE that said last will and testament has been offered for probate, that the name and post office address of the proponent is and that objections have been filed to the probate of said will and that the same will be heard at a Trial Term of the Surrogate's Court of the County of New York, at the Hall of Records, in the Borough of Manhattan, in the County of New York on the day of , 19 , at 10.30 o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard. Dated, New York, , 19 . Attorney for Petitioner. Office and post ofiice address New York City. In New York County, Rule VI prescribes that a copy of the objections must be served upon proponent or his attorney. A notice of trial is served and a note of issue filed as in ordinary actions. The trial as already stated, may be by or without a jury. The surrogate, upon the demand of an interested party, may on probate determine the vaUdity, construction and effect of any disposition of property contained in the will (§ 2510, subd. 8; § 2615). PEOCEEDINGS IN SURROGATES' COURTS 467 A lost or destroyed will can be admitted to probate where it 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 (§ 2613). In such a proceeding it is not enough for proponent to prove the execution of the win. There is no presumption that an ambulatory instrument like a will or codicil continues in existence. If not found after careful search, the presumption arises that the decedent himself destroyed the wiU animo rev- ocandi (Matter of Kennedy, 167 N. Y. 163). Nor is it enough to show that persons interested to establish intes- tacy, had an opportunity to destroy the will. Proponent must go still further and show by facts and circumstances that the will was actually fraudulently destroyed (Collyer V. CoUyer, 110 N. Y. 481). But the presumption of de- struction by the testator is rebutted when it appears that he deposited it with a custodian and did not there- after have it in his possession or have access to it (Schultz V. Schultz, 35 N. Y. 653; Matter of Cosgrove, 31 Misc. ,422). As is elsewhere discussed, an action to establish a ' lost or fraudulently destroyed will may be brought in the Supreme Coiu-t (§ 1861). The judgment estabhshes the win and the proper surrogate issues letters thereon (§§ 1863, 1864). Formerly a decree on probate was not given greater effect in many cases than presumptive evidence. At present, the rule is that every decree is conclusive as to all matters embraced therein as against every person of whom jm-isdiction was obtained (§ 2550). Whenever it appears by the petition of a party claim- ing to be interested that there is reasonable ground to beheve that any person has destroyed, retained or con- cealed any wiU or is conspiring to do so, or has any knowl- 468 CODE PRACTICE IN NEW YORK edge as to such facts, an order may be made requiring him to attend and be examined, on which occasion he may- be required to produce the will (§ 2607). 3. Letters of Administration. If a person dies intestate, a creditor or person interested in his estate, or interested in an action brought or about to be brought in which the intestate, if living, would be a proper party, may present a petition praying for a decree awarding letters of administration either to him or to another person (§ 2589). The following form is used in New York County: Surrogates' Court, County of New York. In the Matter of the AppUcation for Letters of Administration on the Goods, Chattels and Credits of Petition. Deceased. To the Surrogates' Court of the County of New York: The petition of , of , of the County of New York, respectfully shows: That , the above named decedent, was at the time of h death a resident of , in the County of New York, and died at , on the day of , 19 . That your petitioner is of full age and is the of the deceased. . That your petitioner has made diligent search and inquiry for a will of said deceased and has not found any such will, nor has your peti- tioner obtained any information concerning any such will. That a search of the records of this Court shows that no application has ever been made thereto for letters of administration upon the estate of said deceased, or for the probate of a will of said deceased or for letters testamentary thereupon, and your petitioner is informed and verily believes that no such application has ever been made to the Surrogate's Court of any other county of this State. PROCEEDINGS IN SURROGATES' COURTS 469 That the said deceased died possessed of certain personal property in the County and State of New York, and that the value of all the personal property, wherever situated, of which the deceased died pos- sessed, does not exceed the sum of dollars. That the estimated value of the real property in this State, of which said decedent died seized, is dollars. That a right of action exists granted to the administrator of the de- cedent by special provision of law, the probable amount to be recov- ered in which cannot be ascertained and that it is impracticable to give a bond sufficient to cover the probable amount to be recovered in said action. That said deceased left surviving a . ■■ who resides at , and the following only next of kin and heirs at law, whose names, degrees of relationship, post-office addresses and ages are as follows: NAME. RELATIONSHIP. POST-OFFICE ADDRESS AGE. That there are no other persons than those mentioned interested in this proceeding. That all of the above named persons are of sound mind; and all are of fuU age, except That said deceased was in his lifetime a „•, . „„ of the United States. citizen Your petitioner therefore prays a decree awarding letters of admin- istration to your petitioner. Dated, New York, , 19 . Petitioner. (Verification.) OATH OF ADMINISTRATOR County of New York, ss. : I, , do solemnly swear and declare that will well, honestly and faithfully discharge the duties of 470 CODE PRACTICE IN NEW YORK administra of the goods, chattels and credits of deceased, according to law. Sworn before me this day of , 19 . DESIGNATION OF THE CLERK OF THE SURROGATES' COURT AS A PERSON ON WHOM SERVICE OF PROCESS MAY BE MADE PURSUANT TO SECTION 2565, C. C. P. I, , the petitioner herein for letters of ad- ministration on the goods, chattels and credits of , deceased, a resident of , do hereby designate the Clerk of the Surrogates' Court and his successor in office as a per- son on whom service of any process issuing from the Surrogates' Court of the County of New York may be made in like manner and with like effect as if it were served personally upon me, whenever I caimot be found and served within the State of New York after due diligence used. I reside at No. , New York Ctty. (Acknowledgment.) An administrator has nothing to do with the decedent's real property except that in some cases, as will be seen later, he may obtain an order permitting him to collect the rents (§ 2701), or directing a sale for the purpose of paying debts, funeral or administration expenses, or legacies charged upon the property (§§ 2702 et seq.). Section 2588 provides in detail for priority in the issuance of letters. If a husband does not take out letters of adminis- tration on the estate of his deceased wife, he is presumed to have assets in his hands sufficient to satisfy her debts and is liable therefor, but as her duly appointed adminis- trator, he is liable only for the debts of the wife to the extent of the assets received from her estate (Decedent Estate Law, § 103). Every person being a resident of a state and competent who has a right to administration prior or equal to that of the petitioner and who has not renounced, must be PROCEEDINGS IN SURROGATES' COURTS 471 cited and where petitioner is not entitled to share in the distribution, 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 other person iaterested. Where it is not necessary to cite any person, a decree granting letters may be made on presen- tation of the petition. Any person who has a right to administration prior or equal to that of petitioner may renounce, except that a public administrator or county treasurer can only be excused from acting upon his motion and upon an order made and entered by the surrogate (§2590). The administrator must give a bond (§ 2591). The surrogate may refuse to grant letters of administration to one who does not file an instrument designating the clerk as one on whom service of process issuing from the surrogate's court may be made (§ 2565). There are also what are known as temporary adminis- trators, administrators cum testamento annexo, adminis- trators de bonis non, ancillary administrators and limited administrators. A temporary administrator may be appointed when delay necessarily occurs in the granting of letters testa- mentary or letters of administration or in probating a wUl, also where a person has disappeared or is missing, there being reasonable ground to believe either that he is dead, or that he has become a lunatic or that he has been secreted, confined or otherwise unlawfully made away with and the appointment is necessary for the protection of his property and the rights of creditors or parties inter- ested (§ 2596). The temporary administrator has au- thority to collect and preserve the decedent's or absentee's personal property and may by order be authorized to sell such personal property and pay funeral or other ex- penses and legacies or distributive shares (§ 2597). The 472 CODE PRACTICE IN NEW YORK temporary administrator like an administrator in chief, may publish a notice requiring creditors to exhibit their demands (§ 2598), and an order may be made permitting him to pay debts (§ 2599). He may have authority con- ferred upon him to take possession of real property and receive the rents and profits or do other necessary acts and under certain conditions he may be permitted to mortgage, lease or sell (§ 2600) . He may be directed to make provision for the maintenance of a wife or infant cWld (§2601). An administrator with the will annexed, commonly known as an administrator C. T. A. {"cum testamento annexo") may be appointed (§2603), 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 wiU annexed, qualified to act (i. e., if the executor has died, renoimced, failed to qualify or has not been appointed). An application may be made by a creditor of the decedent or a person inter- ested, or one having a lien upon any real property upon which decedent's estate has a lien (§ 2603). A citation must issue unless the renunciation of every person having a prior right is filed and a citation may be directed to every person equally entitled. The proceedings are the same as upon an application for administration on the estate of an intestate (§ 2604). An administrator C. T. A. must qualify and give a bond (§ 2605). An administrator D. B. N. (de bonis non — of goods not yet administered) is appointed when aU the adminis- trators to whom letters have been issued have died or become incapable or their letters are revoked. The pro- ceedings are the same and the same security is required as on an original application, except that the siurogate may, in his discretion, in case the estate has already been partially administered, take into consideration the value PROCEEDINGS IN SURROGATES* COURTS 473 of the assets remaining unadministered in determining the amount of the bond (§ 2606). Ancillary letters of administration, with or without the will annexed, may be issued in order to permit the holder to collect property within the state which belonged to a deceased non-resident whose estate is being administered elsewhere (§§ 2629, 2630). Unless otherwise directed, an ancillary administrator must transmit the money or other personal property collected to the state or comitry where the principal letters were granted (§2634), but the surrogates' court or any coxu-t having jurisdiction of an action to procure an accounting or a judgment con- struing the will, may direct him first to pay debts due to resident creditors or to make distribution among the legatees or next of kin or otherwise dispose of the amounts collected as justice requires (§ 2635). It should be noted here that a foreign executor or ad- ministrator is nevertheless permitted to sue or be sued as such, even though ancillary letters have not been is- sued to him. Within twenty days after he shall com- mence or appear in an action or proceeding or after he shall be required to appear therein, there shaU be filed a copy of the letters testamentary or letters of adminis- tration duly authenticated, in default whereof aU pro- ceedings may be stayed until such copy shall be filed (§ 1836a). Thus a husband appointed administrator of his wife's estate in New Jersey, may maintain an action under section 1902 to recover damages sustained by her death through defendant's negligence, though he has not obtained ancillary letters in this state (Provost v. Inter- national Giant Safety Coaster Co., 152 App. Div. 83). Limited letters of administration are issued where a right of action is granted to an executor or administrator by special provision of law or a cause of action existed in behalf of decedent and it appears impracticable to give 474 CODE PRACTICE IN NEW YORK a bond sufficient to cover the probable amount of recovery. The surrogate may dispense with a bond or fix the penalty at such sum as he deems sufficient. The letters are lim- ited to the prosecution of the action and the administra- tor cannot compromise, nor can he enforce any judgment until the further order of the surrogate made upon sat- isfactory security (§§2592, 2559). Thus limited letters may be issued to prosecute an action to recover real property and damages for withholding possession, pending at decedent's death (Matter of Belotti, 87 Misc. 81). 4. Administration, Distribution and Accounting. The executor or administrator, as has been said, takes control only of personal property and § 2672 declares what shall be deemed such. It iacludes leases for years, and from year to year and estates for the life of another, trade fixtm-es, crops and every kind of produce raised annually by labor and cultivation except growing grass and fruit ungathered. Certain articles are not deemed assets and must be set off to the widow, husband or minor child or children. These include housekeeping utensils, furniture, etc., not exceeding ia value $500, a family Hbrary not exceeding in value $50, domestic ani- mals with their necessary food for sixty days not exceeding in value $150 and money and other personal property not exceeding $150 (§ 2670). If the executor or admia- istrator fail to set apart this property, he may be cited to show cause why a decree should not be made requiring him to do so (§ 2671). The mere fact that one is named executor in a will does not operate as a discharge of any claim which testator had against him. Nor is the dis- charge or bequest of a debt or demand vaUd as against creditors of the deceased and it must if necessary be applied to the payment of testator's debts (§2673). Rents, annuities, dividends, etc., are apportioned so PBOCKEDINGS IN SURROGATES' COURTS 475 that the executor or administrator will take the part which is due up to the time of death (§ 2674). Whenever an executor or administrator knows or has reason to believe that money or other personal property belonging to the estate is being withheld, he may present a petition asking that the person who has possession or control or who has knowledge or information concerning it, may be ordered to appear and be examined. The surrogate then makes an order accordingly (§ 2675) . If it appears on examination that the petitioner is en- titled to the possession of the property, a decree is made directing deUvery to him. If an answer is interposed alleging title or a right to possession, the surrogate de- termines the issue and decrees accordingly (§ 2676). Another method of determining the extent and value of the assets is by an inventory and appraisal. On the appUcation of an executor or administrator, an order is entered appointing two disinterested appraisers of per- sonal property. The executor or administrator after five days ' notice to the legatees or next of kin residing in the coimty, given personally or by mail and by posting a notice in three pubhc places, specifying the time and place at which an appraisement must be made, makes "a true and perfect inventory." The appraisers in the presence of such parties interested as attend, estimate and appraise the property and set down each article separately with the value (§ 2665). If personal property not mentioned in the inventory come to the possession or knowledge of an executor or administrator he must cause an appraisal thereof to be made (§ 2666). Dupli- cates of the inventory must be made and signed by the appraisers. One should be retained by the executor or administrator and the other filed in the svirrogate's office (§ 2668). If an inventory is not returned, the smrogate may make an order on the petition of a creditor, co-ex- 476 CODE PRACTICE IN NEW YORK ecutor or co-administrator or person interested, requiring the delinquent to return it or in default, show cause why he should not be removed or punished. If he contiaue recalcitrant, his letters may be revoked or a warrant of arrest issue (§ 2669) . The executor or administrator may sell personal prop- erty for the payment of debts or legacies or for miaking distribution. The sale may be public or private and may be on credit not exceeding one year with approved se- curity (§ 2684; cf. Matter of Woodbury, 13 Misc. 474). He may apply to the surrogate for permission to compro- mise any claim held by the estate, and the sale of any uncollectible, stale or doubtful claim may be authorized (§ 2683) .' If the assets consist of real property which the executor is authorized to sell, or of personal property which it is necessary or proper to seU, and the value is uncertain or dependent upon the time and manner of sale, the executor or administrator may apply for advice and direction as to the propriety, price, manner and time of sale (§ 2685). This last section does not restrict the executor's or administrator's power of sale. It merely allows him to obtain the advice and direction of the court. Before its passage "on a falling market; in real or personal property, particularly when dealing with collateral loans, representatives have been between the devil and the deep sea" (Jessup-Redfield 's Law & Practice, 1017). An executor or administrator may apply for an order designating a newspaper or newspapers printed in the county, in which to insert a notice once per week for six months requiring all persons having claims against the deceased to exhibit the same, with the vouchers at a place specified in the notice on or before a day named which must be at least six months from the date of the first publication (§ 2677). Such a notice is not required, it is merely for the protection of the personal representa- PROCEEDINGS IN SURROGATES' COURTS 477 tive and there is no absolute legal obligation to give it at all (Fliess v. Buckley, 90 N. Y. 286, citing Bullock v. Bogardus, 1 Den. 276) . If a claim is not presented within six months from the first publication of the notice, or if no notice be published, within one year from the date of issue of letters, the personal representative is not charge- able for assets or moneys paid in satisfaction of lawful claims or legacies, or in making distribution to the next of kin before such claim -is presented (§ 2678). This means that he shall not be chargeable as executor or admin- istrator nor required to account to a creditor. It does not mean that the debt against the estate shaU not be Hquidated by formal judgment (Mayor v. Gorman, 26 App. Div. 191, 197 giving a history of this legislation). But if the personal representative knows of the claim, he is not relieved from liability by reason of the claimant 's failure to make presentation pursuant to the statutory notice. He is only protected when he acts in good faith (Matter of Gill, 199 N. Y. 155). The executor or ad- ministrator may require satisfactory vouchers in support of any claim and an affidavit of the claimant that it is justly due, that no payments have been made and that there are no offsets to claimant's knowledge (§2677). The object of requiring the creditor's affidavit is not to prove the existence of the debt, but to prevent the ex- hibition of fictitious claims and the allowance of claims against which there exists a legal offset only known to the claimant (Osborne v. Parker, 66 App. Div. 277). If the executor or administrator doubts the justice or validity of any claim, he must serve a notice in writing upon the claimant that he rejects it or some part of it. Unless the claimant commences an action within three months after rejection or if no part of the debt is then due, within two months after a part becomes due, such ^claimant is barred from maintaining it and the claim must 478 CODE PRACTICE IN NEW YORK be tried upon the judicial settlement (§ 2681). The effect of this is to provide for a short period of limitation in cases where the claim has been presented. If the creditor fails to present, he may sue, but his judgment against the ex- ecutor or administrator will be good only as against the assets then in the hands of the personal representative (cf. Matter of MuUon, 145 N. Y. 98). If the claim is re- jected, then the claimant must either sue within the time specified or must have his claim determined on the judicial settlement of the account. If the representative after reasonable opportunity for examination, neither allows nor disputes the claim but remains silent, it would seem that his mere silence will not preclude hun from thereafter con- testing its vaUdity, although if no objection to its allow- ance is taken on the accounting, then the surrogate may be authorized to treat it as an admitted claim and direct payment (Matter of Callahan, 152 N. Y. 320). Indeed, if the claim is barred by the statute of limitations at the time of decedent's death, the executor is bound to plead the statute (Schutz v. Morette, 146 N. Y. 137, § 2706). If the representative admits any claim other than his own, either on the accounting or prior thereto, such claim is estabUshed except that in such event or where a judgment has been obtained whether paid or not, any party ad- versely affected may file objections and show that the claim was fraudulently or negUgently allowed or paid or that the judgment was obtained by fraud, neghgence or collusion (§ 2680). The surrogate may authorize the compromise of any claim against the estate (§ 2683) ; Matter of Gihnan, 92 App. Div. 462, afiimd., 178 N. Y. 606). In cases where the personal representative has a claim against the estate he may prove it on the accounting (§ 2679). He shall not satisfy it out of the property of the deceased until proved and allowed by the surrogate and it is not entitled to a preference (§ 2682). PROCEEDINGS IN SURROGATES' COURTS 479 The personal representative must pay reasonable funeral expenses which are preferred over all classes of debts. If not paid within sixty days after the granting of letters, the claimant may present a petition praying that the exec- utor or administrator be citied to show cause why he should not be required to make such payment. If, on the return, it appears that the executor or administrator has received moneys appUcable to the payment of the claim, and he admits its validity and reasonableness, an order may be made directing pajrment; if the claim is disputed, the surrogate may direct that it be heard on the judicial settlement. If it appears that no money has come into the hands of the executor or administrator, the proceeding is dismissed without costs and without prejudice to a further application (§ 2686). Strictly speaking, funeral expenses are not treated as a debt against the estate, but as a charge the same as the necessary expenses of adminis- tration (Patterson v. Patterson, 59 N. Y. 574, 585). The amount, of course, must be reasonable and here each case is a law unto itself (authorities collected in Jessup- Red- field's Law & Prac, §992). Decedent's debts must be paid in the following order: (a) Debts entitled to a preference under laws of the United States and of New York (Matter of Niederstein, 154 App. Div. 238, holding entitled to priority a claim in favor of the state for moneys received by decedent when County Clerk, as taxes paid on the recording of mortgages) ; (b) taxes due prior to death; (c) judgments and decrees ac- cording to their priority; (d) other debts. Debts not due may be paid after deducting a rebate of interest for the unexpired term. Preference may be given to rents due or accruing on leases held by the deceased, over debts of the fourth class, if it appears to the surrogate's satis- faction that such preference will benefit the estate (§ 2682). 480 CODE PRACTICE IN NEW YORK Legacies are not payable before the completion of the pubUcation of notice to creditors, if such notice has been pubUshed, or if none has been pubhshed, before the expi- ration of one year from the time letters were granted, unless they are directed by the will or by a decree on accoimting to be sooner paid. Bequests of specific articles of property other than securities may be deUvered at any time in the executor's discretion. Whenever a legacy is directed by the will to be sooner paid or specific property is bequeathed, the executor or administrator may require a bond condi- tioned for the refunding of the sum paid or the value of the articles delivered or a proportionate amount thereof if the assets prove insufficient to pay debts or other legacies or if the will is denied probate on appeal or otherwise (§2688). A legatee may have his legacy paid in advance on giving security if he is in actual need of the same or of some part thereof for his support or education or the support or edu- cation of his family. He appUes by petition, a citation is issued and it must appear on the return that the amoimt of assets exceeds by at least one-third, the amoimt of all known debts and claims, of all legacies entitled to priority over petitioner's claim and all of legacies or distributive shares in the same class (§ 2691). Where the personal representative has not begun the pubHcation of a notice and three months have elapsed since probate or grant of letters, or where such pubHcation has been completed, any creditor having a claim which has not been rejected or any legatee or any one entitled to a distributive share may present a petition praying that the executor or administrator be citied to show cause why payment should not be made. The surrogate on its return may direct payment in whole or in part or upon receiving a bond (§2687). A testamentary trustee may Ukewise be directed to make payment or delivery. This is also by PROCEEDINGS IN SURROGATES' COURTS 481 means of a special proceeding on petition. All interested persons must be cited (§§ 2689, 2690). The Code provides for a settlement by act of the parties, i. e., if all are sui juris, they may avoid the trouble and expense of accounting proceedings by recording an instru- ment settUng the account in whole or in part (§ 2719). So where limited letters have been granted, a judgment or compromise has been obtained, and the proceeds are ready to be paid over, such recovery not being a part of the estate and going by special provision of law to designated persons or classes (e. g., a recovery for death due to wrongful act or neglect), the personal representative may file a petition for a settlement of his account relating to such fund and upon the return of a citation or a waiver of all parties interested, the surrogate may settle such account and di- rect payment (§ 2720). Usually, however, the personal representative desires to account formally for his entire proceedings and to cite 3,11 parties interested, so as to allow him to proceed to a decree. Accounts are either intermediate or what are usually termed, final. An intermediate account may be filed for the purpose of disclosing the acts of the person accoimting and the condition of the estate or fund and without being made the subject of a judicial settlement (§ 2768, subd. 9). The term "final account " is not found in the Code. It is filed for the purpose of concluding all parties interested and then said account is said to be "judicially settled" (§ 2768, subdiv. 8). "Intermediate accoimts are merely 'land marks along the Kne of the execution of the trust' for the information of the bene- ficiaries and not of the trustees, while judicial settlements of accounts had on notice to all parties interested, con- template a trial resulting in a judgment conclusive on such parties" (Twy effort on New York Estates and Surrogates, 349). Intermediate and final accountings 482 CODE PRACTICE IN NEW YORK may be either voluntary or compulsory and both may be judicially settled. The personal representative at any time may volun- tarily file an intermediate account with his vouchers, or he may be required to file it by an order made on the petition of any person interested (§ 2721). No judicial settlement need here be sought, though, if he desires, any time after one year has expired since letters were issued and not oftener than annually thereafter, he may file an intermediate account with a petition for its judicial settlement (§ 2723). So, an involuntary intermediate account may be compelled and settled (§ 2724). A judicial settlement of a final account may likewise be either voluntary or compulsory. If voluntary, the personal representative, guardian or trustee takes the initiative. He presents a petition and asks that aU necessary and proper parties be cited. In the case of an executor or administrator, this may be done when notice to creditors to present claims has been published and the time for presentation has expired or where one year has elapsed since letters were issued or where letters have been revoked (§ 2729) . There must be cited all creditors whose claims have not been paid and all parties inter- ested including sureties on the official bond (§ 2730). The following forms are used in New York County : PROCEEDINGS IN SURROGATES' COURTS 483 Surrogates' Court, County of New York. In the Matter of the Judicial Settlement of the Account of Proceedings of Petition. as administra of Deceased. To the Surrogates' Court of the County of New York: The petition of residing at respectfully states : That letters of administration upon the goods, chat- tels and credits of deceased, who at the time of h death was a resident of were granted to your petitioner by the Surrogates' Court of New York County, New York, on the day of , 19 . That more than . ^ ,, has elapsed since the SIX months issuance of said letters of administration and that the time for presentation of claims as fixed by a notice duly pubHshed has expired. where it appears that That the names and post-office addresses of all cred- t?iere is no heir oi ., i - ■ x i tj_ r xt. i j j. law or next of kin, itors or persons claunmg to be creditors of the decedent w ^a^it "S" ^i (except such as by vouchers filed with the account ap- m^^f^swv "t'P^^'" to have been paid), of the sureties on the official when all the parties _ ^ widow interested are non- bond of your petitioner , of the , , , of the dece- resident aliens, the ^ ^ nUSDana sued to the attorney- dent, of all the next of kin of the decedent, and of all (1^524). ' '^ other necessary and proper parties, are as follows: 484 CODE PRACTICE IN. NEW YORK NAME NATURE OF INTEREST POST-OFFICE ADDRESS // any persons, or their names, resi- dences and post-office addresses he un- known, the petition must substantiaUy set forth the facts which show what efforts have been made to ascertain the same and a gen- eral description of the parties, showing their connection with ihs decedent and t their irvterest in the matter (§ B521). nofmin^MsZ That there are no other persons than those above general or testamen- mentioned interested in this proceeding, and that all of tary guardian, *^ j • j whether or not Ais said above mentioned persons are of sound mind; and father, or, if he be f e m j. dead his mother, is all are 01 lull age, oxcept living, giving the post-office addresses of such persons, and the Tiame and post-- office address of the person with whom such infant resides Erase unnecessary who infant over the age of fourteen allegations. n(^ied ""be an^ad- ^ho uifant uuder the age of fourteen judged, or an at- ygarS. leged, incompetent, ^ slate the facts regard- ing his incompet- ency, and the name and post-office ad- ti^lti^^^aniZ That the estate herein amounts to ^^^ than five terest in his welfare; leoo SXSrU"/ thousand dollars. the commitiee, if any, and the name and poat-office ad- dress of the person „,, . .... j . r or institution having That your petitioner desirous of ren- '^