(Jorn^U IGauj ^rl^onl iCtbrarg Cornell University Library KFN5995.A85 A handbook of practice under the Civil P 3 1924 022 789 113 Cornell University Library The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022789113 A HANDBOOK OF PRACTICE UNDER THE CIVIL PRACTICE ACT OF NEW YORK PREPARED PRIMARILY FOR THE USE OF STUDENTS, AND PRESENTING IN BRIEF FORM, AND IN SIMPLIFIED AND ORDERLY MANNER, THE PORTIONS ESSENTIAL FOR THEIR CONSIDERATION. BY CAKLOS C. 4JLDEN, LL.M., J.D., OF THE NEW YORK BAR, DEAN OF THE LAW DEPARTMENT OP THE UNIVERSITY OP BUPPALO, AUTHOR OP HANDBOOK OP THE CODE OP CIVIL PROCEDURE, ABBOTT'S PORMS OP PLEADING, 2nD ED., ABBOTT'S PRACTICE AND PORMS, 2nd ED., ETC. NEW YORK BAKER, VOORHIS & COMPANY 1921 copyeight 1921, By Baker, Voorhis and Company. PREFACE. A study of the new Civil Practice Act and the new Rules of Court will not, without guidance, lead to a working knowledge of our practice. They were not written for students' use; they (and their predecessors since 1850) have not attempted the creation of a new system but only to effect needed changes in a previously existing system. Therefore, to the student, the Practice Act and the Court Rules will present an extensive collection of confused and appar- ently arbitrary provisions, that no reasonable amount of study can convert into any coordi- nated and articulating system of remedial pro- cedure. The present volume has been designed to offer him some needed assistance in acquir- ing fundamentals of practice, leaving the fuller development of his knowledge as needs arise. The object of the volume will be accomplished, if through its use the student within the limit of reasonable effort may secure that fair general comprehension which will enable him to appreciate, and thus to live in terms of amity and accord with, our rather highly developed modern system of civil practice. CARLOS C. ALDEN. Buffalo, N. T., October, 1921. [iii] TABLE OF CONTENTS. CHAPTER PAGE I. Development and Scope of the Civil Practice Act 1 II. Organization and Jurisdiction or Civil Courts 5 III. Judges; Ministerial Officers; Attorneys 14 IV. Methods for Enforcement of Eights, and Redress or Preven- tion OF Wrongs 21 V. Limitations Upon Prosecution of Civil Actions 23 VI. Procedure in the Course of a Civil Action in a Court of Record : 1. Parties 33 2. Obtaining Jurisdiction of Defendant 41 3. Raising of the Issues .... 58 4. Provisional or Collateral Remedies 101 5. Other Matters Prior to Trial; Bringing on the Trial 123 6. The Trial 158 7. Costs 179 8. Judgment and its Enforce- ment 182 9. Affeals 200 [V] VI CONTENTS. CHAPTER PAGE yil. Procedxjke in Courts Not of Record 213 VIII. Procedure in Special Proceedings 218 IX. Surrogate's Courts: 1. Proceedings Generally. . . 220 2. Probate of Will 227 3. Administrators 233 4. Administration and Dis- tribution OF Estate, and Accounting Therefor. . . 236 5. Sale of Decedent 's Realty TO Pay Debts 243 6. General Guardian 244 X. Proceedings of Habeas Corpus, Mandamus, Certiorari and Pro- hibition 248 XI. Other Special Proceedings 264 XII. Special Provisions Relating to Particular Actions : 1. Actions Affecting Real Property 279 2. Matrimonial Actions 295 3. Judgment Creditors ' Suits 306 4. Decedents ' Estates 308 5. Joint Debtors 311 6. Action to Recover a Chattel 312 7. Other Miscellaneous Causes of Action 315 CHAPTER I. DEVELOPMENT AND SCOPE OF THE CIVIL PEACTICE ACT. The present Civil Practice Act represents a gradual moulding and progressive develop- ment of practice and procedure within this State during a period of over three-quarters of a century. Long before the Constitution of 1846 marked its radical changes upon the State's judicial system, it was felt to be inade- quate as well as unfitted to meet the needs of the rapidly increasing population and commer- cial interests, and to be cumbered with much that was clearly antiquated and a clog on the effective administration of justice. There were at that time separate courts of chancery and of common law jurisdiction, each with a distinct system of practice and procedure, while the latter courts retained much of the early forms and practice of the English courts. In 1837 the Legislature took the first step toward the creation of a unified system of practice, by au- thorizing the appointment of commissioners to report a system embodj'ing practice both at law and in equity. By the Constitution of 1846, the then existing Court of Chancery was abolished ; its jurisdiction in equity was vested in the Su- preme Court, which was thereafter to have "general jurisdiction in law and equity;" com- missioners were directed to be appointed "to [1] Z A HANDBOOK OF CIVIL PEACTICE. revise, reform and simplify the rules of prac- tice, pleadings, forms and proceedings of the courts of record of the State." The labors of the commissioners (Messrs. David Graham, Aphaxid Loomis and David Dudley Field) re- sulted in the "Code of Procedure," which was adopted in 1848, and continued in force until the enactment of the first half of the Code of Civil Procedure, in 1877. The Code of Civil Procedure retained, either practically verbatim, or in a somewhat modified form, most of the provisions of its predecessor necessitated by the merging of legal and equit- able jurisdiction into one court, and the estab- lishing of but one species of civil action, in place of the two separate courts of chancery and of common law, with their separate systems of practice. The commissioners who reported the Code of Civil Procedure were Montgomery H. Throop, Jacob Werner and Charles Stebbins ; they were appointed in 1873, to revise, simplify, arrange and consolidate all the State statutes, and to in- clude a Penal Code, a Code of Criminal Pro- cedure and a Code of Civil Procedure. These three Codes were subsequently reported to the Legislature, and adopted. The first thirteen chapters of the Code of Civil Procedure took effect in 1877 ; this portion of the Code, after treating generally of courts, their jurisdiction and organization, and the limitation of actions, followed pretty closely the SCOPE OF CIVIL PRACTICE ACT. 6 procedure during the course of a civil action, taking up in succession: the summons, and its service, parties to an action, pleadings, pro- visional remedies, miscellaneous intermediate proceedings, trial, judgment, appeal, enforce- ment of judgment (§§ 416-1495). Chapters fourteen to twenty-two were adopted and went into effect in 1880. While continuing the general purpose of a code of civil procedure, this latter part contained many- matters of substantive law, in the shape of rights of action. For example, the right of ac- tion for negligently causing death (§§ 1902, etc.), though treating of the right, rather than the remedy, was to be found among the Code sections. This portion of the Code contained provisions regulating particular actions and special proceedings, the jurisdiction of and pro- cedure in surrogates' courts and courts of jus- tices of the peace, taken in great part from the Revised Statutes, and about the only provisions relating generally to all actions dealt with costs and fees, and the rules of construction ap- plicable throughout the Code. In 1890, titles I and II of chapter twenty- three were added, covering proceedings for the condemnation of real property (by exercise of right of eminent domain, and for the sale and mortgaging of corporate realty. In 1897, titles III and rV were added to the chapter, and treated of the foreclosure of mechanics' liens and liens on vessels. 4 A HANDBOOK OF CIVIL. PKACTICE. The present Civil Practice Act was adopted in 1920, and will go into effect October 1st, 1921. It is substantially a re-enactment of much of the former Code of Civil Procedure, in re- arranged form. There have been excluded many sections of the former Code which dealt with Surrogates' Courts and Justices' Courts; these sections now constitute a separate Surro- gate Court Act, and a separate Justice Court Act. Other sections have been eliminated and placed in a separate Court of Claims Act, and a separate New York City Court Act. Many other sections of the former Code have been transferred to various consolidated laws, or have been repealed and form the subject of court rules. By these methods of elimination the present Civil Practice Act contains a total of fifteen hundred and forty sections, while the former Code of Civil Procedure contained at the time of its repeal nearly double that number. By Ch. 902 of the Laws of 1920, a convention representing the judiciary and the bar was au- thorized to consider and adopt rules of civil practice not inconsistent with the judiciary law and the civil practice act. These rules \nll be known as the "Kules of Civil Practice," and will supersede the former " General Kules of Practice." These rules are binding upon all courts of record, except the Court of Appeals. They supplement, but cannot supersede or over- rule the provisions of the Civil Practice Act. CHAPTER II. ORGANIZATION AND JURISDICTION OF THE CIVIL COURTS. The present State Constitution of 1894 deals directly, and of course with supreme authority, with the more important of the State courts (Art. VI), and jurisdiction conferred by it can- not be altered or impaired by legislative enact- ment. All courts are either "Courts of Eecord," or "Courts not of Record." All of the most im- portant courts are courts of record; the dis- tinction is not of present value. Courts held by justices of the peace, and the lesser civil courts established in the various large cities of the State, are courts not of record (Judiciary Law, §§ 2, 3). The Legislature has authority to create courts not of record only, which courts shall not possess any equity jurisdiction, or any greater jurisdiction than is possessed by the county courts (Const., Art. VI, § 18). The Court of Appeals has jurisdiction of an exclusively appellate character, except that the court regulates by rules the admission of attor- neys and counsellors at law to practice in courts of record (Judiciary Law, § 51). Appeals in civil cases may be taken to it only from deter- minations of the Appellate Division of the Su- [5] b A HANDBOOK OF CIVIL PRACTICE. preme Court. Its decisions are final, unless a question is involved under the constitution, treaties or statutes of the United States, in which case the United States Supreme Court has power of review (U. S. Judicial Code, § 237). The Court of Appeals has power to review questions of law only (Const., Art. VI, § 9; Civil Practice Act, § 589). The Court con- sists of seven judges, five of whom form a quorum, and the concurrence of four is neces- sary to a decision (Const., Art. VI, § 7). When the Court needs aid to dispose of its calendar, the Governor may designate not more than four justices of the Supreme Court to serve tem- porarily as associate judges of the Court of Appeals (id.). The jurisdiction of the court is hereafter specially treated, under Chapter VI. The Supreme Court has general jurisdiction in law and equity (Const., Art. VI, § 1). This general jurisdiction includes all the jurisdic- tion possessed by the Supreme Court of the Colony of New York at any time, and by the Court of Chancery in England on July 4th, 1776 (Practice Act, § 64). The Supreme Court is divided into what may be called its "trial divisions," for the original hearing and decision of litigated matters, and its "appellate divisions," for the decision of appeals from determinations of its trial divi- sions and of other courts. The State is divided into four judicial de- CIVIL COURTS AND THEIR JURISDICTION. 7 partments, the first department consisting of the County of New York and the other three containing various counties of the State of as equal population as may be (Const., Art. VI, § 2). Each of the four judicial departments has an Appellate Division, consisting of seven justices in the first, and five justices in each of the other three departments, designated for a term of five years by the governor from all the supreme court justices (Const., Art. VI, § 2). The governor also designates the presiding jus- tice. At least four, but not more than five, jus- tices hear each appeal, and the concurrence of three is necessary to a decision {id. ; Judiciary Law, § 71). The jurisdiction of the appellate divisions is practically exclusively appellate, and will be considered hereafter in Chapter VI. The "trial divisions" of the Supreme Court are themselves divided into "Terms," with re- gard to the character of the matters to be heard and disposed of thereat. The terms are known as "Trial Terms," where cases are tried, and "Special Terms," where are heard the many intermediate matters that may arise for deter- mination during the course of a civil action. In counties where the quantity of litigation makes it desirable to separate common law issues triable by juries from issues in equity triable by courts without the aid of juries, other "Special Terms" are held, where equity cases alone are heard and decided. The Special and Trial Terms are held in each county at times 8 A HANDBOOK OF CIVIL PEACTICE. fixed by the Appellate Division of the judicial department embracing that county (Judiciary Law, § 84). Prior to January 1st, 1896, there existed what were called "Superior City Courts" as follows: The Court of Common Pleas of the City of New York, the Superior Court of the City of New York, the Superior Court of Buffalo, and the City Court of Brooklyn. These Courts had, with some limitations not necessary to discuss, concurrent jurisdiction with the Supreme Court. They were abolished by the Constitu- tion of 1894 (Art. VI, § 5), their records were deposited with the County Clerks of the respec- tive counties (Judiciary Law, § 30), pending actions were transferred to the Supreme Court, and their judges were made justices of the Su- preme Court for the remainder of their respec- tive terms. The number of the Supreme Court justices was thus increased to meet the in- creased demands upon the court (Const., Art. VI, § 1). A County Court exists in each county of the State, except in New York County. This Court is intended to aid the Supreme Court in the determination of actions of a local character. Its jurisdiction is made dependent upon the presence of the subject of the action, or the residence of all of the defendants, in its county. A County Court has general jurisdiction over CIVIL COURTS AND THEIR JURISDICTION. 9 actions affecting real estate in its county, and over actions affecting chattels therein where the aggregate value of the chattels or the lien asserted upon them does not exceed one thou- sand dollars. Where the defendant, or all "of the several defendants, reside within the county, it has general jurisdiction of all other kinds of civil actions brought to recover not more than two thousand dollars. A domestic corporation is deemed such a resident when its principal place of business is established or is actually located within the county (Const., Art. VI, § 14; Practice Act, §§ 67,68). The custody of the person and the care of the property of an incompetent resident of the county, and the sale or other disposition of the real property within the county of an incom- petent wherever resident, or of an infant, or of a domestic religious corporation, are also within the Court's jurisdiction (§ 67). The County Judge is also Surrogate of the County, except where there is a separate Surro- gate; the Legislature may provide for a sepa- rate Surrogate in counties of over forty thou- sand inhabitants (Const., Art. VI, § 15). The process of this court runs to any county in the State (§72). The Surrogfate's Court, prior to 1896, was a statutory court, that is, a court of Legislative creation; it has now become a court of consti- tutional recognition (Art. VI, § 15). The Court 10 A HANDBOOK OF CIVIL PRACTICE. still remains under the control of the Legisla- ture, being continued by the Constitution with its existing jurisdiction and powers, until otherwise provided by the Legislature. The Court has general jurisdiction respect- ing the administration of estates of deceased persons and of infants. All proceedings re- lating to the probate of wills, granting of let- ters testamentary and of administration, pay- ment of decedent's debts, distribution of his property to those entitled thereto under his will, or under the laws of intestate succession, etc., are cognizable by this Court (Surrogate's Court Act, §§ 40-47). The procedure differs from other courts of record, and is treated hereafter under "Special Proceedings" and "Surrogate's Courts." The mandates of the Surrogate's Court run to any county throughout the State (§ 52). The City Court of the City of New York has jurisdiction over actions brought (1) to re- • cover money only a where the sum demanded does not exceed fews© thousand dollars, except that in an action for damages for breach of promise to marry the amount claimed may be unlimited; (2) to recover the possession of chattels of an aggregate value of not more than two thousand dollars; (3) to foreclose a me- chanic's lien on real property in the City of New Yprk; (4) to foreclose a lien for not more than twto thousand dollars on chattels; (5) to CIVIL COURTS AND THEIR JURISDICTION. 11 recover seamen's wages and damages for as- sault, battery or false imprisonment on the high seas (New York City Court Act, §§ 18-20). The Court is composed of ten justices, one of whom is designated by them to be chief justice. The Court's mandate can be enforced only within the Borough of Manhattan, except that an execution upon a judgment may be issued to any county where the judgment has been docketed, a subpoena may be served and a wit- ness apprehended for failure to obey it in any of the counties adjoining the County of New York, and an order requiring the performance of an act by a party to an action or to show cause why the person named therein should not be punished for a contempt may 'be served in any part of the State ( § 37 ) . The Court is divided into Special and Trial Terms. An appeal lies from judgments or orders of the City Court to the Appellate Term of the Supreme Court, which consists of not less than three justices of the Supreme Court assigned by the Appellate Division in the First Depart- ment to hear such appeals (Civil Practice Act, § 627). No further appeal lies as of right, but may be taken by permission to the Appellate Division (New York City Court Act, § 74). The Trial Terms of the City Court are de- voted to the trial of jury causes; the justice holding Special Term passes upon the miscel- 12 A HANDBOOK OF CIVIL PRACTICE. laneous applications made during the pendency of actions. The Municipal Courts of the City of New York were created at the time of the consolida- tion of New York City and the several sur- rounding cities, and the provisions regarding those courts are to be found in the New York City Municipal Court Code enacted in 1915. They are a continuation of the former District Courts of New York City and Justices' Courts of Brooklyn, but with increased jurisdiction. Municipal Courts are now courts of record; they have jurisdiction of actions against nat- ural persons, domestic corporations and for- eign corporations, wherein the sum clairned does not exceed one thousand dollars, tand of a character (stated generally) as follows: (1) all actions upon contract other than a contract to marry; (2) actions of tort except assault, bat- tery, malicious prosecution, false imprison- ment, libel, slander, criminal conversation, seduction and enticement; (3) to recover fines or penalties; (4) to recover chattels of not more than the aggregate value of one thousand dollars; (5) summary proceedings to recover possession of real property (without limit as to value) within the City; (6) the foreclosure of mechanic's liens; (7) all other civil actions or proceedings of which the former Municipal Courts had jurisdiction (Munic. Ct. Code, §6). CIVIL COURTS AND THEIR JURISDICTION. 13 These courts are divided into districts within the -several boroughs (§ 5). Actions must be "brought in the district where one of the plain- tiffs, 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. A person or corporation is deemed a resident for the pur- pose of fixing the district if he or it has a place therein for the regular transaction of business (§ 17). An action may be tried in any district, unless it is transferred upon the defendant's demand made upon or before putting in his answer {id.)-. The process of the court runs to all portions of the greater city (§ 14). The court is held by a single justice, and no jury is present unless demanded at the time the an- swer is filed or within three days thereafter (§ 118). Justices' Courts throughout the State are given jurisdiction in the main similar to the Municipal Courts of the City of New York, but the limitation upon the amount involved is two hundred dollars (Justice Court Act, § 3). The justice hears and determines actions according to law and equity, and for that purpose is vested with all the necessary powers possessed by the Supreme Court {id., § 18). CHAPTER III. JUDGES ; MINISTEEIAL OFFICEES ; ATTORNEYS. The functions of a judge or a justice of a court of record are exercised by him either at times when he is holding a stated term of court, or at times when no term of court is in actual session to which he is assigned. With regard to the situation under which he acts, the judge is said to be either "in" or "out of" court. When "out of" court he is entitled to exercise those powers that attach to a judge of that par- ticular court by virtue of his office or by statu- tory provision. When "in" court he is vested with the additional powers attaching to the term of court which he is then holding (Civil Practice Act, § 65). When an order may be made by a judge (which means it may be made out of court and without notice), any judge of the court may make the order in any part of the State (§ 130) ; a court order, however, is the act of the particular judge holding that court. Sometimes the distinction is essential to be observed, as, when in a statutory proceed- ing the power to do an act is vested in a judge, it may not be exercised by the court. (Peo. ex rel. Ward v. Hegeman, 168 App. Div. 419). In the Supreme Court the distinction between orders by a justice or by the court is prac- [14] / judges; ministerial officers; attorneys. 15 tically abolished (§§ 128-9). A judge may ad- journ a term of court to which he was not as- signed (Judiciary Law, § 7). A judge ''out of" court may make an ex parte order (i. e., an order made without notice to the adversary) appointing a guardian ad litem, except in an action for partition (Civil Practice Act, § 202), or where the application is not made by the in- fant or his general or testamentary guardian (§ 204). So, he may grant an order of arrest (§ 817), an injunction order {id.), warrant of attachment (id.), stay proceedings in an action for not more than twenty days (§ 169), extend the time within which a proceeding in an action must be taken, provided the time has not already expired (§ 98), grant an order in sup- plementary proceedings (§ 778) for security for costs (§: 1486), etc. Neither a judge nor the court is authorized to extend the time fixed by law within which to commence an action or take an appeal, or to allow an action to be begun or an appeal to be taken after the expiration of the time fixed by law (§ 99). The ministerial officers connected with the or- ganization of the courts are: sheriff; clerk; stenographer ; interpreter ; attendants ; reporter (Judiciary Law, §§ 230-455). The sheriff of each county enforces the com- mands of the courts therein (Civil Practice Act, § 102), and in so doing may call to his aid the 16 a HANDBOOK OF CIVIL PRACTICE. military organization as well as the citizens of the county (Judiciary Law^ § 400). If further aid be required, the Governor may send any necessary portion of the State militia (Mili- tary Law, § 115). The sheriff has custody of all civil prisoners; they must be kept separate from criminal prisoners (Prison Law, § 345). A civil prisoner upon giving security that he will not go beyond the jail liberties must be ad- mitted to them {id.,^% 364). Jail liberties are fixed territorial limits beyond the walls of the county jail ; in New York County the jail liber- ties are the whole of that county {id., § 357). The sheriff notifies persons drawn as trial jurors to attend (Judiciary Law, § 536). He executes orders for the attachment of property (Civil Practice Act, § 912), for the arrest of a defendant (§ 840), for the replevying of a chattel (§ 1100) ; an execution issued for the enforcement of a judgment against the prop- erty or person of the judgment debtor is di- rected to and enforced by him (§§ 636-647). When a dispute is raised as to the ownership of property seized by him by virtue of a man- date, such as an execution, or warrant of attach- ment, the sheriff may empanel and preside over a jury to try the question (§ 103). Deputy sheriffs are appointed by the sheriff and per- mitted to act for him in the performance of the various duties enjoined upon him by law. The functions of the sheriff for courts, of record are in the main performed by the city judges; ministeeial officers; attoeneys. 17 marshals for the municipal courts of the City of New York (N. Y. City Munic. Court Code, § 151), and by the constables for justices of the peace (Justice Court Act, § 466). The clerk of the court has the care and cus- tody of its seal and records; he enters — i.e., signs and files — and records all judgments of the court (Court Rule 201). The clerk of each county is clerk of the supreme court and the county court of that county. He is empowered to appoint deputies who act for him in per- forming the various functions of his oflfice. If a judge designated to hold a term of court fails to appear, the clerk is empowered to adjourn it (Judiciary Law, § 6). Notices of appeal from judgments or orders are filed with the clerk be- sides being served upon the attorney for the successful party (Civil Practice Act, § 562). In some cases of defendant's default the clerk may enter the judgment without direction from the court (§§ 486-7). The stenographer is a court officer (Judiciary Law, § 290). It is his duty to take full steno- graphic notes of the testimony and rulings upon the trial and record every exception taken ; upon request of any party, he must fully note every remark or comment of the judge presiding over a jury trial (§ 295). He shall furnish a copy of the minutes of the trial to any party upon payment of his fees (§ 301). 18 A HANDBOOK OF CIVIL PEACTICE. The reporter publishes such decisions of the court as it directs, or as he deems it for the public interest to have reported (Judiciary Law, §§ 431, 437). The reporter for the Court of Appeals is called the State Eeporter (§ 430). No present distinction exists in this State be- tween attorneys and counselors at law; they are alike officers of the court. The Judiciary Law in part regulates the admission of attorneys to practice (§§ 460-470), but the Court of Appeals prescribes rules for the study of law, and for a uniform system of examination binding upon the State Board of Law Examiners {id., § 53).* An attorney may be censured, suspended or removed by the Appellate Division for miscon- duct (Judiciary Law, § 88). While a party to a civil action is permitted to appear in person, he may if he so desire ap- pear by a regularly admitted attorney, and if an attorney is retained, the party himself can- not appear to act in person ( Civil Practice Act, § 236). The attorney for a party has a statutory lien for his services on his client's interest in the action; the lien attaches from the time of the commencement of the action, or the service of an answer containing his client's counterclaim, fastens upon Ms client's recovery, and is not affected by a settlement between the parties (Judiciary Law, § 475). Notice of the lien is not necessary (Peri v. N. Y._.C. R. Co., 152 N. Y. judges; ministerial officers; attorneys. 19 521). Notwithstanding the existence of the lien, the client remains in complete ownership and control of the cause of action, and may settle the action with the adversary; upon any such settlement the lien fastens Upon the amount of the settlement, and the attorney may thereafter enforce his lien through an action in which the court will adjudge that if satisfaction is not obtainable from his client the one settling in disregard of the attorney's lien must satisfy it (Fisher Hansen v. Brooklyn Heights R. Co., 173 N. Y. 492). In addition to this statu- tory lien, an attorney has a common law re- taining lien on all papers, securities or moneys of his client (Matter of Heinsheimer, 214 N. Y. 361). The client may terminate his attorney's em- ployment at will; such termination of the rela- tion abrogates any existing agreement as to compensation and leaves the client liable only for the actual value of services theretofore rendered (Martin v. Camp, 219 N. Y. 170). If the attorney is employed on a contingent fee basis, the rule is the same (Andrews v. Haas, 214 id. 255). An agreement for a percentage of the recovery is valid unless, all circum- stances considered, it may be held unfair and unconscionable ( Morehouse v. Brooklyn Heights R Co., 185 id. 520) ; it is subject to the court's approval if made between an attorney and a guardian for an infant (Judiciary Law, § 474), An attorney is prohibited from buying a right 20 A HANDBOOK OF CIVIL PRACTICE. of action for the purpose of bringing an action on it, and from giving or promising a valuable consideration to any person as an inducement to the placing in his hands of a demand of any- kind for the purpose of suit (Penal Lavf, § 274; Matter of Clark, 184 N. Y. 222). The attorney of record for a party to an ac- tion subscribes the various papers in the ac- tion, such as the summons (Court Eule 45), notice of appearance (Civil Practice Act, § 237), the pleadings (Court Rule 91). Stipulations between attorneys are required to be in writ- ing (Court Eule 4), but no oral stipulation can be ethically repudiated. The attorney for a party is personally responsible for the pres- ence of scandalous matter in a pleading (Civil Practice Act, § 1450), and is under the court's summary control. ^ The attorney of record has general control of the conduct of the litigation on behalf of his client; he may collect a judgment, and may satisfy it on the record within two years from its recovery (Civil Practice Act, § 530), but may not compromise a claim or satisfy a judg- ment for less than its full amount, except upon express authority from the client (Mandeville V. Reynolds, 68 N. Y. 528; Bush v. O'Brien, 164 id. 205). CHAPTER IV. METHODS FOR ENFORCEMENT OF RIGHTS, AND RE- DRESS OR PREVENTION OF WRONGS. A CIVIL right must be enforced, redressed or protected from wrongful invasion by one of the following methods: (1) By civil action; by which, when used in the Civil Practice Act, is meant an ordinary prosecution in a court of justice ( Civil Practice Act, § 4). There is no distinction in form between actions at law and suits in equity (§ 8). Where the violation of a right admits of a civil and also of a criminal prosecution, the one is not merged in the other (§9). (2) By special proceeding; in which is in- cluded every other civil prosecution by a party (§ 5). Under this head are to be classed all matters entertained by the Surrogate's Court, and various proceedings of statutory regula- tion all hereafter considered. (3) By submission to arbitration; by which is meant an agreement by parties to a contro- versy, who are all sui juris, that certain per- sons named shall hear and determine it (§§ 1410-11). When the statutory requirements are complied with the determination of the arbitrators may be enforced like a judgment [21] 22 A HANDBOOK OF CIVIL PEACTICE. of the court (§: 1425). The Arbitration Law (L. 1920, c. 275) is designed to compel the specific performance of agreements between parties to a contract to submit their differences to an arbitration ; upon motion in a proper case one of the parties may secure an order direct- ing the adversary to proceed to an arbitration. (4) By submission of controversy on agreed statement of facts; where the facts are undis- puted between them, the parties may present them in writing and submit their rights thereon to the determination of any court of record which would have jurisdiction of an action brought for the same cause; if to the supreme court the submission must be made j;o the appel- late division (§§ 546-8). CHAPTER V. LIMITATIONS UPON THE PROSECUTION OF CIVIL, ACTIONS. Certain arbitrary time limitations have been established by law, during which a civil right once accrued must be enforced. These time periods differ greatly with regard to different species of rights of action. The sections of the Civil Practice Act establishing these time periods constitute what is commonly called the "Statute of Limitations." This statute is often considered, not as an enactment which deprives, a party of his right, but as a statute of repose, which is based upon the principle that if a party has, while under no legal re- straint or disability, permitted the one liable to remain in peace a certain fixed period without asserting his right against him, no subsequent resort to an action will be permitted. But, al- though an action on a contract debt would therefore not lie, the debt itself is not extin- guished and may be enforced against any prop- erty in the creditor's possession pledged as security for its payment. If, however, the creditor's right is not per- mitted to lie entirely dormant, but the debtor has meantime given a new promise to pay, or an acknowledgment of the debt, in writing, the [23] 24 A HANDBOOK OF CIVIL PRACTICE. statute period runs only from the date of the new promise, or the acknowledgment (Civil Practice Act, § 59). Such a writing is good though made after the running of the statutory period (Willis v. Wileman, 53 Misc. 462), and although failing to specifically describe the debt in character or amount (Zinn v. Stamm, 152 App. Div. 76, 78 Misc. 567). If the promise is conditional on some event, the condition must be shown to have been fulfilled (Francis v. Ey croft, 148 App; Div. 65). So if part payment is made, of principal or interest, the statutory period runs from the last such payment (Mur- dock V. Waterman, 145 N. T. 55) ; the payment must be shown made under such circumstances as to establish an acknowledgment that it was only a payment of a part (Van Name v. Barber, 115 App. Div. 593 ; Crow v. Gleason, 141 N. Y. 489). Certain time is excluded from the computa- tion of these periods of limitation, based upon the fact that some reason exists during the ex- cluded period why the person entitled to the right fails to assert it. If when the right ac- crues to him (§ 28), the person is an infant, or insane, or imprisoned on a criminal charge for less than life, the usual period of limitation is extended, but the statutory provisions vary with respect to character of disability as well as character of action. If the right of action is for the recover}^ of real property, an infant is given the full statu- STATUTE OF LIMITATIONS. 25 IS- tory period of te»e«et-y years after reaching ma- turity, whenever he was eleven years of age or over when his right of action accrued ; for each additional year of infancy beyond the above maximum of ten, a year is taken from the twenty year period after arriving at maturity. For example, if he is 10 years when his right accrues he can sue until nineteen years after he becomes of age; if 5 years old, until four- teen years after maturity. If his right accrued at his birth his action would not be barred until ten years after maturity. ( See § 43 ; Howell v. Leavitt, 95 N. Y. 617). If the right of action originally accrues to a competent adult, his death and' the passing of the right of action to an infant heir will not permit the latter to avail himself of any extension by reason of his in- fancy (Scallon V. Manh. Ry. Co., 185 N. Y. 359). An insane person may sue to recover real prop- erty within ten years after becoming sane, and an actiop. may be brought by those entitled within %#n years after his death if he continued insane (§ 43). The statute (§ 60) regarding the effect of these disabilities on actions other than to re- cover real property, excludes or extends the period of disability, but also provides that the action must be brought within one year after the disability ceases. But its purpose is to add to and not to lessen the usual statutory periods applicable to adults, and it will therefore not be applied when the result would be harmful; for 26 A HANDBOOK OF CIVIL PRACTICE. example, a minor of twenty years of age, having a right of action to which a three year period would apply if he were an adult, may have this three year period, whereas if he invoked his dis- ability he would have but one year of infancy and one year of maturity (Hyland v. N. Y. Cen- tral R. Co., 24 App. Div. 417). Continuing in- sanity of the person entitled to sue extends the usual period five years only, when the bar be- comes complete (§ 60). If the party liable is outside of the State when the action accrues the statute does not run in his favor until he returns, or designates some person within the State upon whom ser- vice of a summons may be made (§19). If after it accrues, he leaves the State and remains continuously absent a year or more, the period of such absence is excluded unless he has made a similar designation (§ 19). After removing to another State, his return into the State for visits will not prevent his being continuously absent within the statute (Lawrence v. Hogue, 105 App. Div. 247). A person residing in an- other State, but having his office in New York is not absent from this State (Costello v. Downs, 19 App. Div. 434). If the defendant iS a foreign corporation, the statute does not run in its favor until it has designated a person within the State for service of the summons (Olcott v. Tioga R. Co., 20' N. Y. 210; § 229). If the party entitled to enforce a right dies, the action may be brought within one year from his death, although the usual period of limitation STATUTE OF LIMITATIONS. 27 would have expired before that time (§ 20). If a person liable dies within the State, an ex- tension of eighteen months is given beyond the statutory period within which to sue his repre- sentatives (§21). If he dies without the State, the period between his death and eighteen months after letters on his estate are issued within this State is excluded from the statu- tory period (§ 12). Where the commencement of an action to enforce the right has been pre- vented by an injunction, the time during which the person is so prevented is excluded (§ 24). The usual statutory provision prohibiting an action against a municipality until a specified number of days after notice of claim extends the time within which to commence the action a similar number of days (Dickinson v. Mayor, 92 N. Y. 584). If a right exists but no action may be brought upon it until demand has been made, the time period runs against it from the day when the right to make the demand was complete ; except where an agent or other fiduciary receives or detains_ money or property -the time period runs only from the day when the person hav- ing the right to make the demand for the money or property has actual knowledge of the facts upon which his right depends ; and except where there was a deposit of money or property- with- out a fixed time of repayment or return, the time period runs from the actual demand (§15). This section in terms is made applicable only to cases where a demand is an essential pre- 28 A HANDBOOK OF CIVIL PRACTICE. requisite to a right of action; it cannot be in- voked, therefore, as against an agent gnilty of wrongdoing, for the sole object of a demand is to convert an otherwise lawful possession into an unlawful one (Glover v. Nat. Bank of Com- merce, 156 App. Div. 247). The running of the statute is not usually pre- vented by the fact that a person has no knowl- edge of his right; specific provisions exist in case of a claim founded on fraud (§ 48), and a claim against an agent (discussed, supra) post- poning the commencement until knowledge of one's right. Instances of the bar of the statute being raised despite plaintiff's ignorance of his right; Riley v. Riley, 141 N. Y. 409; N. Y. etc. Express Co. v. Carroll, 170 App. Div. 197 (implied obligation to pay over money received for plaintiff) ; Lightfoot v. Davis, 132 App. Div. 452, 198 N. Y. 261 (conversion). Even where, as upon a claim for fraud, the statute runs only from discovery of the facts consti- tuting the fraud, such discovery results when facts are known sufficient to put one on an in- quiry which if made would have led to a dis- covery (Coffin V. Barber, 115 App. Div. 713). The defendant must specifically claim by an- swer that the statute period has elapsed before the commencement of the action; otherwise he cannot claim the protection of the statute (§30). The defense should be separately stated (§ 262) and should allege the facts which show that the defense exists; for example, "That the alleged STATUTE OF LIMITATIONS. 29 cause of action set forth in the complaint ac- crued more than — years prior to the com- mencement of this action." If plaintiff has a new promise or acknowledgment on which he relies to meet the defense, or if plaintiff's dis- ability or defendant's absence has extended the statutory period, plaintiff may prove this avoidance at the trial without having pleaded it in his complaint (Esselstyn v. Weeks, 12 N. Y. 635). A court or judge is not authorized to extend the statute period (§ 99). An action is deemed commenced when the summons is served on a defendant, or on a co-defendant who is a joint obligor or contractor with him (§ 16), but de- livery of the summons to the proper sheriff with intent that it shall be actually served ex- tends the time for the commencement of the ac- tion sixty days beyond the time limited pro- vided that within that time personal service is made or service by publication commenced (§ 17). The more important time periods during which actions of the different species must be commenced are as follows (§§ 34, 44, 47-53, 56) : To recover possession of real" . praperty : Upon a judgment of a court of „ , ^ T * >-Twenty years, record : Upon an instrument under seal: 30 A HANDBOOK OF CIVIL PRACTICE. Upon a contract, express or " implied, not under seal: Statutory liability, except pen- alty or forfeiture: Damages or other relief founded on fraud, the time period running from the discovery of the facts con- stituting the fraud: Damages for other tortious injury to property, or to person (except for negli- gence and intentional or malicious personal tort) : To recover a chattel (rep- levin) : On a judgment of a court not of record: Upon a^ current, mutual and"" open account; by which is meant that each party has cross claims against the other. Items on one side and payments on the other side do not constitute the mutual account (Green v. Disbrow, 79 N. Y. 1; Miller v. Longshore, 147 App. Div. 214; Sanger v. Duncan, 196 id. 55). Six years. Six years from last item on either side. STATUTE OF LIMITATIONS. 31 Against sheriff or other court officer for moneys collected on execution: For statutory penalty or for- feiture : Personal injury resulting from negligence: Damages for intentional or malicious personal tort, such as libel, slander, assault and battery, etc. ~ By the executor or administra- tor of a decedent, for caus- ing death by negligence, etc., the period running from de- cedent's death (Dec. Est. Law, § 130). Against sheriff, or coroner, for liability other than moneys collected: Against any other officer for escape of a civil prisoner: Against executor or adminis- trator on a rejected claim (Surr. Ct. Act, § 211) : Three years. Two years. ^One year. Three months after rejec- tion, but such claim can thereafter be tried and de- termined by the surro- gate. 32 A HANDBOOK OF CIVIL PRACTICE. Where no other limitation is prescribed, which includes, in the main, actions of an equitable character: Ten years. Municipalities are protected from the asser- tions of stale claims by provisions in charters or general laws requiring prompt notice of claim to be filed as a condition of bringing an action ; these provisions operate as short statutes of limitation, to which are applied judicial exemp- tions based upon physical or mental inability to comply therewith (for example, immature in- fancy of the one injured ; Murphy v. Village of Fort Edward, 213 N. Y. 397). If the cause of action arose outside of the State, the period of limitation fixed by the law of the place where it arose is applicable unless it originally accrued in favor of a resident of this State (§13). If any cause of action (other than affecting real property within this State) accrues against a non-resident, no action will lie against him in New York after the expira- tion of the period of limitation provided by the laws of his residence, except that if such period be less than provided in New York, the period fixed by the laws of this State shall apply (§ 55). CHAPTER VI. PROCEDURE IN" THE ORDINARY COURSE OF A CIVIL ACTION IN A COURT OF RECORD. I. Parties. II. Obtaining jurisdiction of defendant. III. Raising of issues. IV. Provisional and collateral remedies. V. Other matters prior to trial. VI. Trial. VII. Costs. VIII. Judgment and its enforcement. IX. Appeals. I. Parties. The party prosecuting the action is styled the plaintiff; the adversary is the defendant (§ 191). All persons may be joined in one action as plaintiffs, in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist whether jointly, severally or in the alternative, where if such persons brought separate actions any com- mon question of law or fact would arise; to prevent embarrassment or delay the court may order separate trials; judgment may be given for such one or more plaintiff's as may be found 3 [33] 34 A HANDBOOK OF CIVIL PRACTICE. entitled to relief, and for such relief (§ 209). If the consent of a person who should be joined as a plaintiff cannot be obtained he may be made a defendant, the reason therefor being alleged in the complaint (§ 194). The real party in interest must be the plaintiff, except that an executor or administrator, or the trustee of an express trust, may sue without joining the bene- ficiary (§ 210). A person with whom or in whose name a contract is made for the benefit of another is expressly given authority to sue (id.) ; thus, an agent for a disclosed or for an undisclosed principal may sue upon the con- tract provisions inuring to the benefit of the principal, but to be performed through the agent (Ludwig v. Gillespie, 105 N. T. 653; Middleton v. Wohlgemuth, 141 App. Div. 678). The section is merely permissive and the prin- cipal, whether disclosed or undisclosed, may bring the action (NicoU v. Burke, 78 N. Y. 580; Moore v. Vulcanite Co., 121 App. Div. 667). An assignee must sue in his own name for he is the real party in interest; this is so even if the assignment passes only the legal title and the assignee must account to the assignor for any recovery collected (Sheridan v. Mayor, 68 N. T. 30; Friedman v. Schulman, 46 Misc. 572). Any claim or demand may be assigned, unless forbidden or made void by statute, or founded on a breach of promise of marriage, or to re- cover damages for a personal injury (Personal Prop. Law, § 41; Meech v. Stoner, 19 N. Y. 26). PROCEDURE IN AN ACTION. 35 A deed by one whose real property is at the time adversely held is absolutely void (Keal Prop. Law, § 260), but the grantee therein is expressly authorized to sue in the name of the grantor (Civil Pract. Act, § 994). All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative, and judgment may be given against such one or more of the defendants as may be found liable, according to their respective lia- bilities (§211). A husband is never to be joined in an action founded solely upon a right or a liability of the wife (§ 200). An action lies against a person who maliciously and without permission brings an action in the name of another person (Civil Eights Law, § 70). A person having a right of action, and worth less than one hundred dollars exclusive of such right, may petition in the form prescribed (Court Eule 35) to be allowed to sue as a poor person; if so allowed the court will assign an attorney to conduct the action (§ 196) who must act therein without compensation (Kule 36) ; he is not liable for costs, and need pay no fees of court (§ 1455). Infancy of a plaintiff does not disable him from suing (§ 201). An infant party prose- cutes or defends by guardian ad litem, who is appointed by the court or judge (§ 202), and appears on behalf of the infant, and whose duty 36 A HANDBOOK OF CIVIL PRACTICE. it is to acquaint himself with the circumstances and protect the infant's rights (Court Eule, 42). The person appointed should be fully competent to understand and protect the rights of the infant, should have no interest adverse to his ward, and of sufficient financial ability to answer for any damage sustained by his negli- gence or misconduct (Court Eule 40). If the infant is fourteen or over the application for the appointment of the guardian ad litem is made by him; if he is under that age the appli- cation is made by his general or testamentary guardian, or by a relative or friend (§ 203). If an infant defendant, or a person entitled to apply therefor as representing the infant, has not procured the appointinent of a guardian within, twenty days after, service of the sum- mons on the infant, then the plaintiff or any other party may have the appointment made on notice (§§ 203-4;, Court Eule 39). The guardian ad litem is not permitted to re- ceive money or property until he has given se- curity (Court Eule 41). He is not liable for costs unless specially charged therewith by the court (§ 205). Judgment by default against an infant defendant cannot be taken until twenty days after the appointment of a guar- dian ad litem (§ 492). Omission of the appoint- ment of the guardian ad litem is, however, a mere irregularity and does not prevent the court, having jurisdiction over the infant's rights involved in the action (Frankel v. Eubin, PROCEDURE IN AN ACTION. 37 115 Misc. 566) ; so, upon infancy of a party ap- pearing at the trial, the court may appoint a guardian ad litem, nunc pro tunc as of the time of the commencement of the action (Rima v. Rossie Iron Works, 120 N. Y. 433). An infant against whom an adverse judgment has been rendered in an action wherein no guardian ad litem was appointed for him may apply to open the judgment within the period limited by statute for assailing a judgment for irregu- larity (§§ 521-2, 528; Frankel v. Rubin, supra). If a party has been judicially declared an in- competent, the committee which the court ap- points to preserve his property interests sues or is sued upon any right or liability of the in- competent (§ 1377). Since, however, the com- mittee is the court's representative, a person desiring to sue him must apply to the court ap- pointing the committee for permission to sue. The court may appoint a special guardian ad litem for an incompetent defendant to the ex- clusion of the committee when cause exists (§ 208). An executor or administrator, including such a representative appointed outside of this State, sues or is sued in his representative capacity upon a right or liability of the de- cedent (Civ. Pract. Act, § 210; Dec. Est. Law, §§ 140, 160). In the ease of a copartnership obligation, all the individual members are named as parties. 38 A HANDBOOK OF CIVIL PRACTICE. If a partner has died the action is brought by the surviving partners without joining the representatives of the deceased partner (Mat- hews V. Stetz, 5 N. T. Civ. Pro. Eep. 235), and no action will lie against the representatives of the deceased partner without alleging and proving the insolvency of the survivors (Potts V. Bounce, 173 N. Y. 335). A corporation sues or is sued in its exact and full corporate name. A mistake in stating its name is waived unless specially set up in the answer (Court Eule 93). A foreign corporation may be sued by a resi- dent of this State or by a domestic corporation for any cause of action; it may be sued by a non-resident or another foreign corporation only to recover damages on a contract made in the State or relating to property therein, or to recover real property in the State or a chattel replevied therein, or where the cause of action not affecting realty arose within the State, or where a foreign corporation is doing business in the State (Gen. Corp. Law, §§ 46, 47) ; no foreign stock corporation doing business in the State may sue on any contract made by it in the State unless it has prior to making the contract procured a certificate of authority to do busi- ness in the State {id., § 15). An unincorporated association of seven or more persons may sue or be sued in the name of its president or treasurer (Gen. Assoc. Law, PROCEDURE IN AN ACTION. 39 §§ 12, 13), upon a claim possessed by or against all the members (Doscher v. Vanderbilt, 177 App. Div. 813). In suing upon contract obligations, an obliga- tion running to two or more is possessed by them jointly and all should sue to enforce it; any joint obligee refusing to join as a plaintifp may be made a defendant (§ 194). The specifi- cation in a contract that two or more of the par- ties bind themselves jointly, or severally, or jointly and severally, affects procedure in suing them, but does not affect the amount of their liability. If contracting jointly, then all the obligors who are alive and within the juris- diction of the court, must be made defendants, although the action may proceed to judgment against those whom plaintiff is able to serve (§§ 1197-1200) ; if contracting severally, or jointly and severally, then one, or more, or all of them may be sued (§ 216). A guarantor of an obligation, making himself such by an inde- pendent writing, may not be sued with the prin- cipal debtor; they are not joint obligors, nor are they severally liable on the same written in- strument under § 216, even though the guaran- tor's undertaking is written on the same paper with his principal's agreement (DeRidder v. Schermerhorn, 10 Barb. 638). The various parties obligated on a promissory note or bill of exchange may all or any be sued as the holder may desire (§ 216). 40 A HANDBOOK OF CIVIL PRACTICE. Joint tort feasors may be sued together or separately, including the members of a co-part- nership (Eoberts v. Johnson, 58 N. Y. 613). Full recovery may be had against any one of them, but if collected no further recovery may be had against the others on the principle that the law will prevent a double recovery. A -re- lease (operating as a covenant not to sue) may be given to a joint tort feasor, and not be a bar to a full recovery against the others. A person may sue on behalf of himself and others when the question involved is one of a common or general interest of many persons (§ 195). For example, such a representative action may be brought by a holder of a re- ceiver's certificate of indebtedness to establish the priority of such certificates, and the require- ment of "many" persons is satisfied if there be three in all (Hilton Bridge Co. v. Foster, 26 Misc. 338). Of course the others may apply to be joined as parties plaintiff and participate in the conduct of the action. The common law rule is that plaintiff may not be compelled to bring in additional persons as defendants; a defendant may object on the ground of the omission of a person as a co-de- fendant and if his objection is good the plain- tiff himself sho'uld obtain leave to add such person or the court will direct such joinder (§ 192). But a defendant sued at common law cannot himself apply to have another person joined as a party (Bauer v. Dewey, 166 N. Y. PROCEDURE IN AN ACTION. 41 402). By statute where a person not a party has an interest in the subject thereof, he may apply to be joined (§ 193). Defects or errors in including or omitting persons as parties shall not now result in defeating an action, but the court at any stage of the action may make any necessary changes in the parties (§ 192). If a plaintiff having the option to name all joint tort feasors as defendants does not do so, the court may afterward permit him to join_those omitted (Gittleman v. Feltman, 191 N. Y. 205). AVTiere plaintiff is in doubt as to the person from whom he is entitled. to redress, he may join two or more defendants to the intent that the question which if any is liable, and to what extent, may be determined between them (§ 213). If a necessary person has been omitted so that a complete determination of the contro- versy cannot be had without his presence, the court must direct that he be made a party (§ 193). This statutory provision is limited in its application to actions in equity (Chapman V. Forbes, 123 N. Y. 532). i II Obtaining Jurisdiction Over Defendant. A formal written notice cf the beginning of the action must be served upon the defendant. This notice is termed the summons; it contains the names of all the parties, plaintiffs and de- fendants, with the name of the court in which 42 A HANDBOOK OF CIVIL PRACTICE. plaintiff has chosen to lay his action, and if he has chosen the Supreme Court, the name of the particular county in which he desires the trial. The plaintiff's attorney subscribes the summons with his name, and office and post-office ad- dress (or the plaintiff in person may so sub- scribe it; Court Eule 11; Horter v. DeMesa, 196 App. Div. 462) ; it informs the defendant that he must answer the complaint in the action, and that if he fails to appear or answer judgment ■vy'ill be taken against him for the relief which the plaintiff demands in his com- plaint (Court Rule 45). A mistake in a summons which has been served may be corrected by an application to the court for its amendment (§ 105). If a new defendant has been ordered brought in and the order is not made on his application, the court must direct a supplemental summons to issue, directed to him, and substantially in the form of the original summons (§ 219; Court Rule 48). A copy of the complaint may be served with the summons. If not so served, a copy of the , complaint must be served within twenty days from the demand of defendant's attorney there- for, and if not so served defendant may apply for a dismissal of the complaint (§ 257). In matrimonial actions a summons served without an accompanying copy of the complaint must contain an inscription upon its face stating the particular character of the action, as "Action for a divorce" (Court Rule 47). PKOCEDUKE IN AN ACTION. 43 If no personal claim is made against a de- fendant in an action affecting real property (as, for example, where a judgment creditor is made a party defendant in a foreclosure action merely to cut off the lien of his judgment on the mortgaged premises), a notice may be served with the summons stating the general object of the action, a brief description of the property affected by it, and that no personal claim is made against that defendant; if not- withstanding this notice such defendant un- reasonably defends, costs may be awarded against him (§ 1440). In na.ming' the parties in the summons the plaintiffs and defendants are divided, and grouped together, as: John Jones and Thomas Fox, Plaintiffs, against Robert Smith and Acme Manu- FACTUEING CoMPANY, Defendants: The summons, complaint and final judgment • must contain the names of all the parties plain- tiff and defendant (Court Rule 45; § 255). In other papers in the action the title may be shortened, in case of numerous parties, so as to name only the first plaintiff, or first defendant, with the additional statement "and others," or "et al." 44 A HANDBOOK OF CIVIL PRACTICE. A party is designated by his full legal name, viz., his Christian and surname; his middle name is not ordinarily a part of his legal name, but if more commonly used by him may be properly given in place of his first name. The use of a middle initial is proper, and affords further identification, but a mistake therein is immaterial. An infant defendant is named as though he were an adult, but the designation of an infant plaintiff includes his guardian ad litem previously appointed, as, "John Jones, an infant, by Peter Fox, his guardian ad litem, plaintiff." A co-partnership sues or is sued in the names of its individual members ; in naming a corporation its exact legal name should be given in full. If a person sues or is sued in a representa- tive capacity it is essential that this fact be shown. For example, "John Jones, as execu- tor of the last will and testament of Frank Fox, deceased," clearly shows that the right asserted is only by, or against Jones in his capacity of executor. To omit the word "as" changes the words which follow to mere descrip- tion of the individual (Genet v. DeGraaf, 27 App. Div. 238). Sometimes in an action a party will be named in a dual capacity, as, "John Jones, individually, and as executor (etc.)." A mistake in spelling a defendant's name is considered immaterial where the pronunciation would be similar, as, if spelled Irwin for Ermn. PEOCEDXJEE IN AN ACTION. 45 If the person upon whom the summons is served has been designated therein by a wrong name, the better course for his protection is for his attorney to serve a notice of appear- ance so worded as to reveal the mistake, as, "Take notice the defendant William Jones, sued herein as Thomas Jones, appears herein, ' ' etc. This will inform plaintiff's attorney that he has either served the wrong person, or a mistake has been made in the name (Lederer Amusement Co. v. Pollard, 71 App. Div. 35). If the person served has been incorrectly named in the summons, but the complaint served with the summons contains statements regarding him so that he must have been ap- prised that he was the person intended to be served, he has been brought into court and must defend; the court will thereafter on plaintiff's application correct the mistake in the name (Stuyvesant v. Weil, 167 I{. Y. 421; Holman v. Goslin, 63 App. Div. 204). If plaintiff does not know defendant's name, he may designate the defendant by a fictitious name, adding a description which will identify him; for example, "John Doe, such name being fictitious, the person intended being a partner with the defendant Thomas Fox in the firm of Fox & Co., doing business as druggists at 100 Broadway, New York City" (§ 215). If part of defendant's name. is unknown, a similar course is followed, as, "Mary Jones, the name Mary being fictitious, the person in- 46 A HANDBOOK OF CIVIL PRACTICE. tended being the wife of the defendant Thomas Jones." When the true name is discovered plaintiff's attorney secures an order that the proceedings already taken be deemed amended by the insertion of the true name and subse- quent proceedings be taken under the true name (§ 215). So, a class of persons, all of whose names are unknown may be named under ap- propriate description, as, "the heirs-at-law of Thomas Fox, deceased." The requirement of service of the summons may be satisfied in either of three ways, viz.: (a) personal service, (b) substituted service, (c) waiver of service by voluntary appearance. (a) Personal service is effected by delivering a copy of the summons to an adult defendant, or to the person designated by him for such service during his absence from the State (§§ 225, 227). If the defendant is an infant the copy of the summons must be delivered to his parent or guardian, or if none within the State, to the person having care and control of him or with whom he resides, or his employer, and if the infant is fourteen, or over, another copy must be delivered to him; in addition, the court may in its discretion require a copy of the summons to be also delivered to a person designated and that service shall not be deemed complete until so delivered (§ 225). PROCEDURE IN AN ACTION. 47 If the defendant is an incompetent and has a committee, appointed for him, a copy must be served on the incompetent and an additional copy must be delivered to the committee; 43ut if the lunatic's malady will be aggravated by delivery of a copy of the summons to him, this may be dispensed with (§ 225). If no com-, mittee has been appointed, or the committee has an interest adverse to the incompetent the court , may direct service on a person designated (§226). If the defendant is a domestic corporation, a copy of the summons must be delivered to its president or other head, or its secretary, cashier, treasurer, director or managing agent (§ 228) ; if a foreign corporation, to the presi- dent, vice-president, treasurer, assistant treas- urer, secretary, assistant secretary, or if it lack either then to the officer performing correspond- ing functions under another name, or to a per- son designated by the corporation for the pur- pose of such service, or if no such officer or person designated can be found with due dili- gence, then to its cashier, or a director or man- aging agent within the State (§ 229). If the foreign corporation is not doing business within! the State, service within the State on one of its officers is ineffective (Robert Dollar Co. v. Canadian Car, etc. Co., 220 N. Y. 270). The "managing agent" intended by the statute is a person of some general local authority, not a 48 A HANDBOOK OF CIVIL PRACTICE. mere clerk or soliciting agent (Josephy v. Kansas City, etc. Ey., 180 App. Div. 313; Beck V. North Packing & Prov. Co., 159 id. 418). Such personal service of the summons in an action in a court of record may be made by any person other than a party (§ 220) ; proof of such service is made by the certificate of the sheriff, or an affidavit of the person making the ser- vice, or by a properly acknowledged or certified admission of service by an adult defendant, each of which must state time, manner and place of service (Court Eule 53). Service of the summons in an action in the municipal courts of the City of New York is made by a city marshal, or by any other per- son not a party and over eighteen years of age (N. Y. City Munic. Ct. Code, § 22). Service of the summons on Sunday is void (Scott Shoe Mach. Co. v. Dancel, 63 App. Div. 172), but on a holiday is valid (Didsbury v. Van Tassel, 56 Hun, 423). The object of all service of process is to give notice to the party on whom service is made, that he may be aware of and may resist what is sought of him, and it is a general rule that any service must be deemed sufficient which renders it reasonably probable that the party proceeded against will be apprised of what is going on against him and have an opportunity to defend. Personal delivery to defendant is of course the desideratum; but if defendant re- fuses to take the paper, no attempt to force it PEOCEDTJEE IN AN ACTION. 49 upon or touch his person with it is necessary, but it may be left in his immediate presence with a statement of its character and that ser- vice of it is being made on him (Correll V. Grranguet, 12 Misc. 209) ; if placed in de- fendant's pocket it is effective delivery (Heller V. Levinson, 166 App. Div. 673), or if he pre- vents or does not permit the process server's approach it may be thrown towards him (Wright V. Bennett, 30 Abb. N. C. 65, note). A summons dropped in defendant's presence without explanation is not properly served (Anderson v. Abeel, 96 App. Div. 370). De- livery to a wrong person is noi; made effective by the latter subsequently handing it to the de- fendant (O'Connell v. Gallagher, 104 App. Div. 492). Enticement of a non-resident within the jurisdiction for the purpose of serving him is improper and the service will be set aside (Olean St. Ey. Co. v. Fairmount Constr. Co., 55 App. Div. 292). A non-resident is privileged from being served when attending a judicial proceeding within the State, as a party or witness (Powell V. Pangborn, 161 App. Div. 452; Roberts v. Thompson, 149 id. 438). A defendant who wishes to have the at- tempted service of a summons set aside, and who does not wish to submit himself to the jurisdiction of the court, may either appear specially for the purpose of the motion and 50 A HANDBOOK OF CIVIL PEACTICB. make a motion to vacate the sel-vice, or he may await the plaintiff's entering of a default judg- ment and then move to vacate the judgment; but any irregularity or defect in the service of a summons is waived when a defendant ap- pears generally by attorney either through the putting in of a notice of general appearance or by the service of an answer (McClure News- paper Synd. V. Times Printing Co., 164 App. Div. 108). (■. "- '^_^ (b) Substituted service is allowed only when previously authorized by a court or a judge's order (Avith one exception hereafter stated) and is so authorized only when a satisfactory showing is made that personal service cannot be obtained; it is of different character and effect when made upon a resident, or upon a non-resident, of the State. The general rule in regard to the service of process is that it must be served personally within the jurisdic- tion of the court upon the person to be affected thereby, that substituted service when pro- vided by statute is in derogation of such gen- eral rule, and consequently the directions thereof must be strictly construed and fully carried out to confer any jurisdiction upon the court (Erickson v. Macy, 231 N. Y. 90). Against a resident of the State, a domestic corporation, or a voluntary association with a resident president or treasurer, the order per- mitting substituted service may be obtained on PROCEDURE IN AN ACTION. 51 an affidavit showing plaintiff has been or will be unable to find the defendant after diligent effort (§ 230). The order directs that the sub- stituted service be made by leaving a copy of the summons and the order, if defendant is a domestic corporation, or association, at its principal office or place of business, or if a natural person at the defendant's residence, >' 'with some person of proper age who will re- ceive it, or if admittance cannot be obtained and such a person cannot be found at defend- ant's place of business or residence, by affix- ing a copy of the summons and order on the door of the defendant's place of business or residence/ and mailing another set of copies to it or him (§ 231). If the defendant's residence cannot be found, service may be made in any other manner which the court may direct (§ 231). Service must be made within ten days after the order is granted, and the service is complete on filing proof of service (Court Kule 49): This substituted service is in its effect substantially equivalent to personal service. Against a non-resident of the State, or a foreign corporation, the order permitting sub- stituted service is granted on a verified com- plaint,, and an affidavit showing the non-resi- dence of the defendant and inability to effect personal service (§ 232). Similar substituted service will be ordered against a domestic cor- poration, no officer of which can be found, or 52 A HANDBOOK OF CIVIL PEACTICE. against a resident whose whereabouts are un- known, or who has left the State, or is in hid- ing to avoid service or defraud his creditors, or who has been absent from the State more than six months without designating a person upon whom a summons could be served in his behalf (§ 232). If the complaint seeks a judg- ment for a sum of money only, it must also be shown that an order of attachment of defend- ant's property has been previously granted and has been levied on some of defendant's property within the State (id.). This last re- quirement has been held not to app ly to an ac- tion for money only against a non-resident or foreign corporation, but to merely extend the right to an order of publication so as to include _ any action wherein an attachment has been ob- tained and a levy thereunder made, provided defendant cannot be served with diligent effort (Del Piotta v. Mendoza, 195 App. Div. 833). But before a final judgment may be entered against a non-resident or foreign corporation in an action to recover a sum of money only, it is necessary to show that an attachment has been issu-ed and property of defendant attached if defendant has not appeared or defended; this is essential, in order that the coiirt may ob- tain any jurisdiction against a non-resident in this species of transitory action, mider the de- cision in Pennoyer v. Neff, .95 U. S. 714; the jurisdiction so obtained is limited, operating only against property attached before judg- PEOCEDURE IN AN ACTION. 53 ment taken on defendant's default (§§ 493, 645; Haas v. Mich. Steel Boat Co., 148 App. Div. 298). Service within the State or a volun- tary appearance constitutes the essentials of due process of law for a money judgment (Baylies v. Baylies, 196 App. Div. 677), in order that it can have anv force or validity against property not attached before judgment. If the complaint demands judgment exclud- ing defendant from an interest in or a lien on specific real or personal property in the State, or that plaintiff's lien thereon be enforced^ or otherwise affecting the title to such property, provision is made for service of the summons without the State without securing an order of court, and in the same manner as service is made within the State excep t tha ,L-a_J3opy of the complaint- must be annexed to and served with the summons (§ 235). The summons may be served by publication in matrimonial actions (§ 232, subd. 5). If the matrimonial domicile of the parties is within the State, the judgment in the action will be valid in other states although the service was by publication and defendant did not appear to defend (Atherton v. Atherton, 181 U. S. 155). But if the action has been brought against a non-resident, who suffered a default judgment, and the matrimonial domicile was not within this State, the judgment rendered by our court will not be recognized in such other states at least as follow our State doctrine re- 54 A HANDBOOK OF CIVIL PRACTICE. garding foreign judgments granted under simi- lar conditions (Williams v. Williams, 130 N. Y. 193; Haddock v. Haddock, 201 U. S. 562). The summons is directed to be served, by publication of the summons, and a subjoined notice (the form for which is given in Court Eule 52) once a week for six successive weeks in two newspapers designated in the order, and by mailing in a post-office or post-office box a copy each of the summons, complaint and order directed to the defendant at a place specified in the order (unless the judge be satisfied that no address can be ascertained and dispenses with this requirement of mailing [Court Eule 50]). If the action affects real property the nature of the action and a brief description of the property must be included in the notice (Court Eule 52). The summons, complaint, affidavits and order of publication must be filed with the clerk of the court on or before the day of first publication (Court Eule 52). Publica- tion must be commenced within three months after obtaining the order {id. 51). Service is complete on the forty-second day after the first publication. (Court Eule 51). Although the order directs service of the summons by publication, plaintiff's attorney may at his option secure its personal service without the State, which is equivalent to the publication and mailing (§ 233). In such case the complaint and the notice required by Court PEOCEDUEE IN AN ACTION. 55 Eule 52 must be served with the summons (id.). Sac-viee-is complete ten days af-te-r-the-fflin'g; of ] proof thereof (Court Rule ^D-^'^'^Ji^ iyjJ>-?*<<^ If the summons is served by publication (but not if served personally without the State) the defendant must be allowed for cause shown to defend the action at any time before judgment taken; or after final judgment by default within one year after personal service of written notice, or in default of such notice within seven years after its entry (§ 217). Restitution may be enforced in favor of a successful defendant, but title to property purchased at a sale under a judgment is not affected (id.). (c) A voluntary general appearajice by the defendant is equivalent to the personal service of the summons upon him (§ 237). Thereby the defendant consents to the exercise of such jurisdiction over him as the court possesses, but such consent cannot confer jurisdiction of the subject matter; the latter must come from the law under which the court exists (Weidman V. Sibley, 16 App. Div. 616). An appearance in order to entitle the defendant to notice of further proceedings in the action is made by the defendant's attorney serving upon plain- tiff's attorney, within twenty days after the service of the summons exclusive of the day of service, an answer, or a notice of motion rais- ing an objection to the complaint in point of 56 A HANDBOOK OF CIVIL PRACTICE. law, or a written notice stating that the de- fendant appears in the action and that the at- torney appears for him therein. If a copy of the complaint is not served with the summons, the appearance can only be made by means of the formal notice; the defendant's right to re- ceive a copy of the complaint will depend upon his having included a demand for its service with his notice of appearance (§§ 237-8). If the action affects real property an attor- ney retained by a non-resident defendant must obtain written authority from his client, which must be acknowledged and filed with the clerk of the court and notice of filing or a copy of the authority served on plaintiff's attorney with the notice of appearance or within twenty days thereafter (Court Rule 55). In such ac- tion affecting real property a defendant may before answering procure an order requiring plaintiff's attorney to produce evidence of his authority to begin the action ; a written request or ratification by the plaintiff will suffice (id.). The following is a form for the notice of appearance : (Name of Court and Title of Action). Please take notice that the defendant, John Jones, hereby appears in this action, and that I am retained by and appear for him therein, and hereby demand that a copy of the (com- plaint and all other) papers in this action be PROCEDURE IN AN ACTION. 57 served on me at my office, Marine Trust Co. Building, Buffalo, N. Y. Dated, Yours, etc., THOMAS FOX, Attorney for Defendant. Office and Post-Office Address, Marine Trust Co. Building, Buffalo, N. Y. To Ralph Brown, Esq., attorney for plaintiff. The "voluntary general appearance" which is referred to in § 237 does not mean the formal notice of appearance only; the voluntary sub- mission to jurisdiction may be made in various ways (Peo. v. Cowan, 146 N. Y. 348, holding that such a submission results from signing a recognizance under statutes providing for judg- ment thereon without further process against the signer; Ayres v. West. R. R. Co., 48 Barb. 132). Proof of service of the summons is regulated by Court Rule 53. Personal service within or without the State is proven by the affidavit of the one making the service, or a certificate by the sheriff if served by him. The affidavit must state the time, particular place and manner of the service. The usual form is as follows: (Title of Court and Action). State of New York, County of (Kings), ss. : James Brown, being duly sworn, says that he is over the age of twenty-one years; that on 58 A HANDBOOK OF CIVIL PRACTICE. the 1st day of October, 1921, at No. 100 Fulton Avenue in the Borough of Brooklyn, County of Kings and State of New York, he served the annexed summons (and complaint) on John Jones, the defendant therein named, by deliver- ing to and leaving with said defendant then and there a true copy thereof; that deponent knew the person so served to be the said John Jones, the person mentioned and described in said summons as the defendant therein. JAMES BEOWN. Sworn to before me October 2nd, 1921, Egbert Smith, Notary Public, Kings Co., N. Y. Certif. No. 1175. In matrimonial actions the affidavit of ser- vice must further state what knowledge the affiant had of the identity of the person served and how he acquired such knowledge, and if the complaint was not served with the sum- mons the affidavit must also show that the copy of the summons delivered to defendant con- tained the notice required in § 1167 (Court Eule 53). III. Presenting the Contentions of the Parties in Form for Judicial Disposition. This must be done in writing, in order that a permanent record of the character of the controversy may be placed on the files of the PEOCEDUBE IN AN ACTION. 59 court, and in order that each party may know in an authoritative way and in advance of the trial what charge or defense he must be pre- pared to meet. The statements by the respec- tive parties are called the "pleadings," and are hereafter considered. Prior to 1848 com- mon law rules of pleading, developed to a highly technical system, were applied in courts of com- mon law, and equity rules of pleading were ap- plied in the courts of chancery; by the, consti- tution taking effect in that year, jurisdiction at common law and equity was combined in one supreme court, and a statutory system of plead- ing and practice was enacted. Our statutes have never attempted to provide a complete system of pleading, but merely to make altera- tions in the common law rules which continue to exist except as so altered. The complaint contains the plaintiff's plain and concise statement of the material facts which constitute his cause of action, or the two or more causes of action which he desires to bring together (§ 241). The complaint follows the summons in stating the names of all the parties to the action, plaintiff and defendant, the court which the plaintiff has chosen (and if the supreme court the particular county) (§ 255), and is subscribed by the attorney (Court Eule 91). It also contains a demand for the judgment to which plaintiff supposes 60 A HANDBOOK OF CIVIL PRACTICE. himself entitled by reason of the facts which he has already stated (§ 255). The plaintiff may join two' or more causes of action in the same complaint if he so desire, whether they are such as were formerly denomi- nated legal or equitable, but he is required to separately state and number them, dividing them into paragraphs numbered consecutively, each as nearly as may be containing a separate allegation (Court Rule 90). In, order to per- mit of such joinder, however, these separate causes of action must be consistent with each other, must not require different places of trial, and, unless arising out of the same transaction or transactions connected with the same sub- ject of action, must be all of a character in- cluded within one of the following subdivisions (§ 258) : 1. Contract, express or implied. 2. Personal injuries, except libel, slander, criminal conversation or seduction. 3. Libel, slander. 4. Injuries to real property. 5. Ejectment with or without damages for its withholding. 6. Injuries to personal property. 7. Replevin with or without damages for the taking or detention thereof. 8. Against a trustee upon contract or by operation of law. 9. Penalties incurred under one of several public statutes. PROCEDUKB IN AN ACTION. 61 If a copy of the complaint was not delivered to the defendant with the summons, the de- fendant's attorney when he serves a notice of appearance may therein demand service of the complaint, and a copy thereof must be served upon him within twenty days thereafter (§ 257) ; should plaintiff's attorney fail to com- ply with this demand defendant may have the complaint dismissed {id.). Some general rules and illustrations of plead- ing, with particular reference to alleging the cause of action in the complaint: (a) Facts, not conclusions of law, nor the evi- dence of the facts, must he alleged. For illus- tration, if plaintiff in his complaint, merely said, "the defendant owes me $100," he has stated no fact, but merely his conclusion, rested upon some. undisclosed facts, that the defend- ant is his debtor in a certain amount (Melenky V. Helen, 189 App. Div. 342) ; but clearly this is a question for the court to decide as a matter " of law, after the facts constituting the transac- tion between the parties have been shown. If the .plaintiff should state in his complaint the correspondence or conversations between the parties wherein the defendant sought and plaintiff agreed to a loan, he would be pleading the evidence ) which is improper (See Hall & Lyon Furn. Co. v. Torrey, 196 App. Div. 804). But a statement that on a day named "plain- tiff loaned to defendant $100, which defendant 62 A HANDBOOK OF CIVIL PEACTICE. agreed to return within one month, but which, defendant has failed to do" reveals and prop- erly sets forth the facts required by the science of pleading (Stabilimento, etc. v. Joseph, 189 App. Div. 173; Williamsen v. Wager, 90 App. Div. 186; White v. Drake, 3 Abb. N. C. 133; Wallaeh v. Dryfoos, 140 App. Div. 438). (b) All facts necessary to make a complete cause of action, or a complete defense, must he alleged (Bailey v. Eyder, 10 N. Y. 363). A necessary fact not alleged is presumed not to exist; e.g., if a cause of action does not arise until after a demand, and plaintiff fails to al- lege that he made a demand, it will be presumed that none was made. But whatever fact is pre- sumed in law in the first instance need not be alleged ; many such presumptions exist, as, that the parties are adults and of sound mind; if a party desires to assert a fact contrary to such a presumption (assuming it to be a rebuttable and not a conclusive presumption) he must set forth the fact. The facts of which a court takes judicial notice need not be alleged (IngersoU- Rand Co. v. U. S. Shipping Board, 195 App. Div. 838). (c) Pleadings must he liberally construed (§ 275). At common law the rule of strict con- struction was applied, against the pleading. Under the present statute, defects in substance cannot be overlooked or omissions supplied PROCEDUEE IN AN AOTION. 63 (Speer v. Downing, 34 Barb. 522; Farrell v. Amberg, 8 Misc. 220), but a pleading is to be aided by whatever may be fairly implied from the language employed (McCarthy v. Heisel- man, 140 App. Div. 240). (d) Time and place of every traversable fact should be stated. This is merely because the adversary is entitled to that amount of cer- tainty with respect to the facts alleged. Omis- sion to obey this rule is waived unless proper objection is made to this lack of definiteness. Wrong dates, or places, become material only when the adversary has been misled thereby. The usual method of alleging the time of the transaction is "on or about" the date named, which is sufficiently specific to comply with the rule. Naming the city wherein the transaction occurred is also sufficiently definite. (e) The allegations control the proofs, and the proofs must support the allegations. An objection at the trial that evidence that is offered is "inadmissible under the pleadings" must be sustained and the evidence excluded, unless it tends to support the position of the party offering it, as revealed by what his plead- ing contains. Judicial inquiry and determina- tion are limited to the matters placed in con- troversy by means of the respective pleadings. The formal part of a complaint may be sub- stantially as follows: 64 A HANDBOOK OF CIVIL PRACTICE. SUPREME COUET, County of New York. Names of all Plaintiffs, Plaintiffs, against Names of all Defendants, Defendants.. Plaintiffs for their complaint allege : {Here follow, in the form of separate and consecutively numbered paragraphs, the facts constituting each cause of action, each cause of action being numbered, as "For a first cause of action) . Wherefore^ plaintiffs demand judgment against defendants {etc., stating the relief sought; if for money only, continue:) for the sum of dollars, with interest from and the costs of this action. JOHN JONES, Attorney for Plaintiffs. Office and Post-Office Address, 100 Broadway, Albany, N. Y. {Verification, as treated hereafter.) The limits of this volume will not permit the inclusion of more than a few illustrations of complaints in the different species of ac- tion, omitting in each instance the formal parts. PROCEDURE IN AN ACTION. 65 Goods Sold and Delivered: I. That at Buffalo, N. Y., and between the .... day of , 19 . . , and the .... day of , 19 . . , plaintiff sold and delivered to the defendant groceries whereof a schedule is annexed marked A and made part of this complaint. II. That defendant agreed to pay, and said groceries were of the reasonable value of, the amounts set forth in said Schedule A. III. That no part of the sum of dol- lars, as shown by said Schedule A has been paid, except the sum of dollars. [Note to Form: Every action on contract involves (a) the making of the contract, (b) consideration, (c) performance by plaintiff, (d) breach by defendant, and (e) resulting damages. Under the rule of liberal construc- tion these essential elements are all to be found in the above form (See Heilbron v. Herzog, 165 N. Y. 98; Sparks v. Ducas, 123 App. Div. 507; Eubin V. Cohen, 129 id. 395; Weiner v. Yale Knitting Mills, 138 id. 533).] Promissory Note, Payee Against Maker: I. That at i and on or about the .... day of '. .Mh-. . ., 19. ., defendant made and de- livered to plaintiff his promissory note dated on said day wherein and whereby he promised to pay to the order of plaintiff fifty dollars two months after date. 66 A HANDBOOK OF CIVIL PRACTICE. II. That no part of said note has been paid. {Note: Herein the contract has been pleaded by legal effect, which consists in setting forth so much of the terms of the contract as reveal defendant's obligation thereunder, the consid- eration, and any condition to be performed by plaintiff which precedes the defendant's obli- gation. No consideration is here alleged, since a negotiable instrument imports a considera- tion and renders a particular allegation un- necessary (See First Nat. Bank v. Stallo, 160 App. Div. 702; Abrahamson v. Steele, 176 id. 865 ; Breimer v. Eing, 146 id. 724; Ahr v. Marx, 44 id. 391).] The Same, Indorsee Against Payee and Maker: I. That at and on or about defendant, Y. Z., made and delivered to defend- ant, W. X., his promissory note of which the following is a copy: (complete copy of note). II. That thereafter and before the maturity thereof defendant, W. X., indorsed and de- livered said note to plaintiff. Illi That at the maturity thereof said note was duly presented for payment at the said bank where it was made payable and payment thereof " demanded and refused, of all of Avhich due notice was given to said defendant, W. X. PROCEDURE IBT AN ACTION. 67 IV. That no part of said note has been paid. [Note: Payee and maker are properly sued together (§ 216). In this form the note has been pleaded by copy (Enle 94). A pleader may allege a contract either by copy or by its legal effect (Thayer v. Gile, 42 Hun, 268). The allegations in paragraph III are material only against the payee on his conditional agreement as indorser (See Cohu v. Husson, 113 N. Y. 662 ; Cook v. Warren, 88 N. Y. 37 ; Hammil v. Washburn, 49 App. Div. 119).] On a Written Agreement of Whatever Char- acter: I. That at and on or about plaintiff and defendant entered into an agree- ment, a copy whereof is hereto annexed marked A and made a part of this complaint {or plead agreement hy its legal effect). II. That plaintiff duly performed the condi- tions of said agreement on his part. III. {Allege defendant's breach, hut if con- current or contemporaneous conditions exist plaintiff must also allege tender or offer and Ms own readiness to perform). IV. {Damage resulting from defendant's breach). [Note: The allegation in paragraph II is un- der express permission (Rule 92) and covers 68 A HANDBOOK OF CIVIL PRACTICE. conditions precedent only. To omit the word "duly" renders such allegation worthless (Siss- kin V. Workmen's Circle, 179 App. Div. 645; Eosenthal v. Eubin, 148 App. Div. 44) ; facts excusing non-performance, or waiver of per- formance, cannot be established under such an allegation (Granger Co. v. Brown Iron Works, 204 N. Y. 218).] Action for Tort; Negligence: I. That at and on or about the .... day of , 19 . . , plaintiff was crossing a public highway in the city of , known as Main Street, at the crosswalk at Third Street. II. That then and there defendant so care- lessly and negligently drove an automobile be- longing to him and at a rate of speed in viola- tion of the traffic ordinances of said city, that the same struck plaintiff and knocked him down. III. That plaintiff at said time was exercis- ing due care. IV. {Allege resulting injuries). [Note: In tort as in contract the pleader must set forth facts showing the existence of all the essential elements of the action. In negligence, the elements are: (a) legal duty of care resting on defendant; (b) negligent breach of duty; (c) resulting injury to plaintiff; (d) PROCEDURE IN AN ACTION. 69 plaintiff's freedom from contributory negli- gence (See Pagnillo v. Mack Paving Co., 142 App. Div. 491; Lee v. Troy Gas Light Co., 98 N. Y. 115; Mandy v. Schleicher Co., 142 App. Div. 23 ; Kleiner v. Third Ave. E. Co., 162 N. Y. 193).] Libel: I. That at and on or about the day of , 19.., defendant maliciously published of and concerning plaintiff the fol- lowing false and defamatory matter: {here must he set forth an exact copy of the alleged libel). II. That by reason aforesaid plaintiff has been damaged in the sum of dollars. [Note: This form is sufficient only when the charge against plaintiff is actionable per se, i.e., of such a character that damages to repu- tation are presumed; a false charge not action- able per se sustains an action only when special damages involving pecuniary loss result, and this fact the complaint must show (Eeporter's Assoc. V. Sun Assoc, 186 N. Y. 437). At com- mon law plaintiff must allege all extrinsic facts necessary to show that the libelous or slander- ous matter referred to plaintiff; under Court Eule 96, an allegation that the matter was pub- lished or spoken concerning him suffices, unless he himself alleges facts which show the con- trary (Fleischman v. Bennett, 87 N. Y. 231). The 70 A HANDBOOK OF CIVIL PEACTICE. words of the libel or slander must be set out in the complaint (Crowell v. Schneider, 165 App. Div. 690). If the words are ambiguous, and capable of an innocent as well as an actionable construction, defendant's intent to use them in their actionable meaning must be alleged as a fact (Hemmens v. Nelson, 138 N. Y. 517; O'Con- nell V. Press Pub. Co., 214 N. Y. 352). If some fact in addition to the libel or slander is essen- tial to establish an actionable significance to the words used, that fact must also be alleged .(Caldwell v. Raymond, 2 Abb. Pr. 193).] Further illustration of complaints would ex- tend the size of this volume beyond desirable limits; the student is referred to Abbotts' Forms of Pleadings, second edition, by the present author, for precedents and authorities on forms of pleadings in all species of actions. Raising Objections to Complaint in Point of Law: While the plaintiff is forbidden to allege con- clusions of law in the complaint, he necessarily is in the position of maintaining that the facts he has alleged show an enforceable right of ac- tion in him ; defendant may assail this position. Formerly this was done by the defendant serv- ing a pleading called a demurrer; the new Practice Act abolishes the demurrer and sub- stitutes therefor a motion for judgment dis- missing the complaint (§ 277; Court Rule 106). Such motion may be made by a defendant to PROCEDTJKE IN AN ACTION. 71 raise for judicial determination an objection in point of law which he believes sufficiently ap- pears on the face of the complaint, that is, from the facts that plaintiff has stated as constitut- ing his right of action. The motion may be di- i rected to a specified cause of action if the com- plaint contains more than one (§ 281). The grounds upon which the Court Rules permit such a motion to be made are (Court Eule 106): 1. That the court has not jurisdiction of the defendant's person, in cases where- jurisdiction may be acquired by his consent. 2. That the court has not jurisdiction of the subject of the action. 3. That the plaintiff has not legal capacity to sue. 4. That another action is pending between the same parties for the same cause. 5. That the complaint does not state facts sufficient to constitute a cause of action.^ Such a motion indicates the particular ground upon which defendant is relying, and the con- tention on the point of law thus raised is heard and decided upon the complaint alone. The de- fendant, if his objection is not sustained, may thereafter serve an answer as matter of right unless the court decides that his objection -was frivolous (§ 283). If sustained, the court may permit the plaintiff to plead anew (§ 105). A notice of motion to raise an objection in 72 A HANDBOOK OF CIVIL PRACTICE. law to the complaint may be in substantially the following form: {Title of Court and action). Please take notice that the defendant will move this court, at a Special Term thereof to be held at {specify place) on {date) at .... o'clock in the . . . .noon of said day, or as soon thereafter as counsel can be heard, for judg- ment dismissing the complaint, on the ground that it does not state facts sufficient to consti- tute a cause of action. Dated, Yours, etc., THOMAS FOX, Attorney for Defendant. Office and Post-Office Address, 100 Main Street, Albany, N. T. To John Jones, Esq., Attorney for Plaintiff. If any one of these grounds of objection .(save the objections to the court's jurisdiction and the sufficiency of the complaint), or the further objections of misjoinder of parties plaintiff, a defect of parties plaintiff or defend- ant, or misjoinder of causes of action, appears on the face of the complaint, the objection must be raised by motion or is waived (§§ 278-9) ; no one of these objections so waived goes strictly ,to the merits of the action^ If after making such a motion and before its determination de- PROCEDUEE IN AN ACTION. 73 fendant serves an answer this_46nstitutes an abandonment of the motion <(% ?Sa}. If the de- fendant's motion is denied, h^-will be given an opportunity to answer (Asphalt Constr. Co. v. Boulier, 127 App. Div. 730), in which event no prejudice results to him from having made the motion (See McCargo v. Jergens, 206 N. Y. 363, under former practice of interposing a .demurrer). If the grounds of objection do not appear on the face of the complaint, but defend- ant believes one or more of them exists, he may take the objections by answer. By Court Rule 107, defendant may make a motion for judgment, when the defect does not appear on face of complaint. Within twenty days after the service of the complaint, the de- fendant may serve notice of motion for judg- ment dismissing the complaint, or one or more causes of action stated therein, on the com- plaint and affidavit stating facts tending to show : 1. That the court has not jurisdiction of the person of the defendant. 2. That the court has not jurisdiction of the subject of the action. 3. That the plaintiff has not legal capacity to sue. 4. That there is another action pending be- tween the same parties for the same cause. 5. That there is an existing final judgment or decree of a court of competent jurisdiction 74 A HANDBOOK OF CIVIL PKACTICE. rendered on the merits, determining the same cause of action between the parties. 6. That the cause of action did not accrue within the time limited by law for the com- mencement of an action thereon. 7. That the claim or demand set forth in the .complaint has been released. 8. That the contract on which the action is founded is unenforceable under the provisions of the statute of frauds. 9. That the cause of action did not accrue against the defendant because of his infancy or other disability. By Court Eule 108, regulating the determin- ation of the motion, if the plaintiff on the ^hearing of a motion specified in Rule 107 shall present affidavits denying the facts alleged by the defendant, or shall state facts tending to obviate the objection, the court may hear and determine the same and grant the motion, and in its discretion allow the plaintiff to amend the complaint upon such terms as are just; or it may direct that the questions of fact, which shall be clearly and succinctly stated in the order, be tried by a jury or referee, the findings of which shall be reported to the court for its action; or it may overrule the objections, and in its discretion may allow the same facts to be alleged in the answer as a defense. If the ob- jections be made to some of the causes of ac- tion, and not to all, the action may be severed as provided in § 96 of the Civil Practice Act, PKOCEDXJKE IN AN ACTION. 75 or the other issues may be tried subsequently and judgment entered under Kule 195. An answer by the defendant is necessary to enable him: (a) To contest the truth of the plaintiff's facts, as stated in the complaint; (b) to present other facts in avoidance of his apparent liability; and (c) to extinguish the lia- bility by offsetting a cross claim against plain- tiff, or to secure an affirmative judgment against him. As stated in the Civil Practice Act, an answer must contain (§ 261) : (a) A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge, or information sufficient to form a belief; (b) a statement of any new matter constituting a defense or counterclaim in plain and concise language without unneces- sary repetition. Whatever material fact has been alleged in the complaint which defendant fails to deny in his answer is taken as true (§ 243;. "Walsh V. Barrett, 154 App. Div. 461) ; the denial which he interposes may be couched in general terms or specify what it denies, or he may in general or specific terms deny any knowledge or infor- mation sufficient to form a belief as to the truth of any allegation in the complaint. In no other way can a defendant call upon a plaintiff to prove at the trial a material fact which the lat- ter has alleged in his complaint, or raise an issue as to its truth; allegations in the answer 76 A HANDBOOK OF CIVIL PRACTICE. of facts inconsistent with the allegations of the complaint will not suffice (DeWitt v. N. Y. Herald Co., 196 App. Div. 417; Hall & Lyon Furn. Co. v. Torrey, id. 804). A denial of an allegation of the corporate capacity of a party is unavailing ; the only way defendant may raise an issue on that fact is by specifically alleg- ing in his verified answer that the party is not a corporation (Court Eule 93). The following are illustrations of forms of denials : General Denial: Defendant denies each and every allegation contained in paragraph num- bered one of the complaint. Specific Denial: Defendant denies that at the time and place alleged in the complaint, or at any other time or place, plaintiff demanded of defendant the return of the said horse. Denial of Knowledge or Information: De- fendant denies that he has any knowledge or information sufficient to form a belief as to {continue in either the general or specific form of statement as to what is included). A denial o:^ an immaterial fact raises no issue for trial; for example, since a negotiable in- strument imports a consideration, the plain- tiff's allegation of a consideration is imma- terial, and no issue arises iipon its denial (Sprague v. Sprague, 80 Hun, 285). PEOCEDTTRE IN AN ACTION. 77 A denial of an allegation of a conclusion of law is ineffective; for example, an allegation that defendant is indebted to plaintiff (Harden- bnrgh v. Fish, 61 App. Div. 333 ; Post Pub. Co. V. Bennett, 164 id. 633). A general or specific denial may be made upon information or belief, as well as on knowl- edge (Lazarus v. Wiernicki, 195 App. Div. 830). But if the transaction as alleged in the complaint was personal with the defendant, a denial of this kind may be challenged as frivol- ous (Lazarus v. Wiernicki, supra). To deny only knowledge sufficient to form a belief is wholly bad ; defendant must deny both knowledge or information sufficient to form a belief (Steinbaek v. Diepenbock, 52 App. Div. 437). This latter form of denial is not per- mitted to an allegation of a matter of public record, or of a transaction necessarily personal with defendant (Dahlstrom v. Gemunder, 198 N. Y. 449; City of N. Y. v. Matthews, 180 id. 41). What is called a negative pregnant results from a specific denial which includes within its application the details of time, place, or par- ticular circumstances of the transaction; for defendant to deny the transaction as of a specified time, or at a specified place, or in its exact character, is pregnant with suggestion that he is hiding behind immaterial inaccura- cies in plaintiff's statement of the transaction 78 A HANDBOOK OF CIVIL PBACTICE. (Hall & Lyon Furn. Co. v. Torrey, 196 App. Div. 804; Kelly v. Sammis, 25 Misc. 6; MeClave v. Gibb, 11 Misc. 44). For a full discussion of the construction and framing of denials the student is referred to Abbott's Forms of Pleadings, second edition. A general denial puts in issue and enables defendant to controvert whatever plaintiff is required to establish in order to recover (Grif- fin v. Long Isl. R. Co., 101 N. Y. 349). For de- fendant to allege affirmatively as a defense facts which would be admissible under a gen- eral denial is held to be an effective method of pleading in Morgan Munitions Co. v. Stude- baker Co., 226 N. Y. 94. If defendant desires to introduce new facts, which do not go to con- trovert what the plaintiff has established, but will enable him to avoid the liability, defendant is required to affirmatively plead such facts as an affirmative defense; if he fails to affirma- tively plead them, his proof will be rejected as inadmissible under the pleadings. As "new matter constituting a defense," de- fendant pleads such defenses as the statute of limitations (§§ 30, 44), no such corporation (Court Eule 93), misnomer of corporation {id.), and the numerous other defenses which are required by judicial decision to be affirma- tively pleaded by the defendant to be available to him, [for example, payment (Conkling v. Weatherwax, 181 N. Y. 258), statute of frauds PEOCEDUEE IN AN ACTION. 79 (Crane v. Powell, 139 id. 379), subsequent modi- fication of contract (Wallace v. Blake, 128 id. 676), no consideration for negotiable instru- ment sued -on (Sprague v. Sprague, 80 Hun, 285), illegality of contract, not appearing on its face or in plaintiff's proof (Millbank v. Jones, 127 N. Y. 370), truth of alleged libel (Mayer v. Chamberlain, 178 App. Div. 326), condonation in action for divorce (Lowenthal V. Lowenthal, 157 N. Y. 236)]. A section of the Practice Act (242) states the principle involved and makes specific direction that certain de- fenses must be pleaded; it is, however, not a comprehensive regulation, and seems merely declaratory of well recognized judicial require- ments. In pleading affirmative defenses, denials should not be repeated therein; a fact once denied shall be deemed denied for all purposes of the pleading (Court Eule 90) ; such affirma- tive defenses need no denials to make them com- plete, unless there is some fact alleged in the complaint which if admitted would defeat the defense, in which case such fact should be denied in the answer (Bulova v. Barnett, Inc., 193 App. Div. 161; Hitching v. Eobinson, 196 id. 366). Defendant may set up as many of these affir- mative defenses as he has, legal or equitable, stating and numbering them separately (§ 262). Such defenses do not have to be consistent with each other (Putnam v. Interior Metal Mfg. Co., 169 App. Div. 248). Matter in mitigation of 80 A HANDBOOK OF CIVIL PRACTICE. damages, or any other partial defense, may be interposed, but should show that it is claimed to be a partial defense only (§ 262). As "new matter constituting a coimterclaim," a defendant sued on a contract liability may interpose any cause of action on a contract existing in his favor against the plaintiff, or his assignor, when defendant was served with the summons (§ 266). When the ^tion or th e counterclaim is in tort, defendant's counter- clai m must h ave arisen out of the transaction set forth in the complaint^ or^be^comiected-with- the subject 0? the action (§ 266; Udovichky v . Kacheff, 195 App. Div. 860). Defendant may use the counterclaim as a set-off, in whole or in part, against plaintiff's claim, or in connec- tion with defenses to plaintiff's action defend- ,ant may use the counterclaim if on a cause of \\ \ action against him as the basis of an affirma- tive judgment against plaintiff (§§ 270, 477). If the Statute of Limitations is a bar to a claim it cannot be effectually interposed as a counter- claim (§ 61). The statutory counterclaim includes recoup- ment (arising out of the transaction with plain- tiff) and also independent causes of action (Seibert v. Dunn, 216 N. Y. 237) ; the only limi- tation on their use is that they must tend to diminish or defeat plaintiff's recovery (§ 266; Lipman v. Jackson Arch. Iron Works, 128 N. Y. 58). If the action is on an assigned claim, an PKOCEDXJEE IN AN ACTION. 81 offset founded upon a claim against plaintiff's assignor must have existed in favor of defend- ant before notice of the assignment,, (§ 267). Defendant may interpose a counterclaim which raises questions between himself and the plain- tiff along with other persons ; in such event he must name all the persons who would be de- fendants if such counterclaim were to be en- forced by cross-action, and such persons shall be summoned to appear by being served with a copy of the answer, and thereby each becomes a defendant as though he had been served with the summons; such person may reply to the counterclaim (§ 271). Whereas formerly in an action on an assigned claim, a claim existing in favor of defendant against plaintiff's assignor could only be interposed to the extent of off- setting plaintiff's claim and the excess recov- ered by separate action against the assignor, defendant may now if he chooses join the as- signor as a party under § 271 and obtain relief upon the entire counterclaim. By Court Rule 109, within ten days after service of an answer, plaintiff may serve a notice of motion to dismiss a counterclaim, or strike out a defense consisting of new matter, contained therein, where one or more of the following defects appear on the face thereof: 1. That the court has not jurisdiction of the subject of the counterclaim. 6 82 A HANDBOOK OF CIVIL PRACTICE. 2. That the defendant has not legal capacity to recover on the connterclaim. 3. That there is another action pending be- tween the same parties for the same cause. 4. That the counterclaim is not one which may be prop^erly interposed in the action.- 5. That the counterclaim does not state facts sufficient to constitute a cause of action. 6. That the defense consisting of new mat- ter is insufficient in law. By Court Eule 110, plaintiff may within the same time, when the defect does not appear on the face of the answer, move for judgment dis- missing a counterclaim on the pleadings and an affidavit tending to show: 1. That the court has not jurisdiction of the subject of the counterclaim. 2. That there is another action pending be- tween the same parties for the same cause. 3. That there is an existing final judgment or decree of a court of competent jurisdiction rendered on the merits determining the same cause of action between the parties. 4. That the claim or demand set forth in the counterclaim has been released. 5. That the contract on which the cause of action alleged in the counterclaim depends is unenforceable under the provisions of the statute of frauds. PROCEDUKE IN AN ACTION. 83 The motion is to be heard and determined in like manner as when defendant moves against the complaint under Court Eule 108. If the action is in a debt or a liquidated demand arising on a contract express or im- plied, or on a judgment, the answer may be struck out and summary judgment entered on plaintiff's motion founded on an affidavit veri- fying the cause of action and stating his belief that there is no defense, unless defendant pre- sents an affidavit. showing facts which the judge shall deem sufficient to entitle him to defend (Court Rule 113). Plaintiff's reply is virtually an answer to the new issues tendered by the defendant's an- swer. A reply may be required to be served by plaintiff, on the defendant's application, to the new matter set up by the defendant as con- stituting a defense by way of avoidance; such a reply cannot be served by plaintiff as of right, but only in obedience to an order of the court therefor made upon the defendant's applica- tion. An allegation of such new matter in the answer to which a reply has not been required is deemed controverted by the plaintiff, by traverse {i.e., denial) or avoidance, as the case requires; it is to plaintiff's disadvantage, there- fore, to require a reply, for if one is required then each material allegation of new matter in the answer not denied in the reply must be taken as true for the purposes of the action 84 A HANDBOOK OF CIVIL PRACTICE. (§ 243). The modern tendency of the courts is toward requiring a reply to be served to an affirmative defense when it will tend to narrow the issues and prevent surprise at the trial, or relieve defendant from great difficulty in ob- taining his evidence (See Writting v. N. Y., etc. Co., 91 Misc. 231 ; Hungarian Gen. Bank v. Titus, 175 App. Div. 504). The plaintiff must interpose a reply to each counterclaim which the defendant has included in his answer (§ 272). Should plaintiff fail to reply or move against such counterclaim, it stands admitted (§ 243; Anglo, etc. Bank v. Jacobson Co., 196 App. Div. 51), and the de- fendant has the right upon default to apply for judgment and the procedure is practically the same as though default were made in interpos- ing an answer to the complaint (§ 494). The reply may contain denials and new mat- ter constituting a defense by way of avoidance, in the same way as the defendant's answer (§ 272). The defendant may within ten days after service of the reply move to strike it out, or to strike out a separate defense therein, on the ground that it is insufficient in law upon its face (Court Eule 111). This completes the raising of the issues by the acts of the parties as shown by their re- spective pleadings. Issues are also raised by statute as follows : an allegation of new matter in the answer to which a reply has not been re- PEOCEDUEE IN AN ACTION. 85 quired by court order (that is, new matter con- stituting a defense by way of avoidance), and an allegation of new matter in a reply, is deemed controverted by the adverse party by denial or avoidance as may be necessary in order to admit the evidence proffered by him (§ 243). A verification upon a pleading is the oath of the party to the truth of the statements therein made. When a pleading is verified, all subse- quent pleadings, except the general answer of an infant by his guardian ad litem, must be properly verified or at the election of the par- ties entitled to the verified pleadings they may be treated as nullities upon prompt notice being given and the unverified pleading being promptly returned (§ 253; Boyce v. Demars, 114 App. Div. 284). The statements made in the pleading are taken to be made by the person verifying (§ 276) ; he makes oath that the pleading is true to his knowledge, except as to the matters therein stated to be alleged on in- formation and belief, and that as to those, mat- ters he believes it to be true (Court Rule 100). Plaintiff's attorney will usually elect to have the complaint verified, since it requires the verification of the answer and will often narrow the issues raised thereby; default judgment may be more easily entered in contract actions if the complaint is verified. Plaintiff's com- plaint must be verified when application is made 86 A HANDBOOK OF CIVIL PRACTICE. for service of the summons by publication (§ 232), and defendant must verify the answer in order to raise the issue of- the corporate existence of a party (Court Eule 93). When- ever a party desires to use his pleading as an affidavit to establish some facts on a motion, it must of course have been verified. The verification must be made by the party (or by at least one of two or more parties united in interest who is acquainted with the facts), except (1) that where a domestic cor- poration is the party, it must be made by an officer; (2) where the people, or a public officer on behalf of the people, is the party it may be made by any person acquainted with the facts ; (3) where the party is a foreign corporation, or (4) the party is not within the county where the attorney has his office, or (5) where the ac- tion or defense is founded on a written instru- ment for the payment of money only, which is in the possession of the attorney or agent; or (6) where all the material allegations of the pleading are within his personal knowledge, the affidavit of verification may be made by the party's attorney or agent (Court Eule 99). If the person verifying is not the party, he must set forth in his affidavit the grounds of his belief as to all matters not stated upon his knowledge; he must also add the reason why the verification is not made by the party ( Court Eule 100). PBOCEDUEE IN AN ACTION. 87 The following is a form of verification: {Venue, as,) State of New York, County of Erie, ss. : John Jones, being duly sworn, says that he is (attorney for) the plaintiff in this action; that he has read the foregoing (complaint) and knows the contents thereof, that the same is true of his own knowledge, except as to the matters therein stated to be alleged on infor- mation and belief, and that as to those matters he believes it to be true. (If made by attorney or agent:) That the grounds of deponent's belief as to all matters not therein stated upon knowledge are {set forth briefly, as) facts stated in letters from the plaintiff. That the reason why this verification is not made by the (plaintiff) is {show one of the permitted reasons to exist, as) that said (plaintiff) is not within the County of Erie, wherein deponent has his office. JOHN JONES. Sworn to before me this .... day of , 19 . . {Signature and title of officer talcing the oath). A party's oath to the verification, or, in fact, taking affidavit, must not be taken by his attor- ney (Vreeland v. Penn. Tanning Co., 130 App. Div. 405), but if so taken it is a mere irregu- 88 A HANDBOOK OF CIVIL PRACTICE. larity and the party at fault may be allowed to cure it (Heidelberger v. Heidelberger, 196 App. Div. 626). The person verifying must take the responsibility attaching to his oath, and should not verify any allegation based upon knowledge unless he could stand the test of proving it as a witness ; nor should he verify upon information and belief unless he has ac- tual grounds for such belief, and his affidavit should show that these grounds are based on information from an authoritative source (Nelson v. Baruch, 60 Misc. 357; Davidson v. Penn.-Virginia Coal & Coke Corp., 109 id. 130). The court may reject a verification made upon knowledge where it is apparent no such knowl- edge was possessed by the affiant (Moran v. Helf, 52 App. Div. 481, where verification was. by the attorney). The verification may be omitted whenever a party would be privileged from testifying as a witness concerning an allegation or denial therein (§ 248). An unverified answer may be served in an action for a libel of a criminal character (Goff v. Star Printing Co., 21 Abb. N. C. 211), fraud amounting to a criminal offense (Kellogg v. Match Supply Co., 165 App. Div. 885), absolute divorce, except a counter- claim for divorce must be verified Avhen com- plaint is verified (§ 1148). A pleading served with a copy of a defective verification may be treated as an unverified pleading (§253). PROCEDURE IN AN ACTION. 89 There is no restriction upon the amendment of a pleading within a certain fixed time period, except that the pleading must not be amended solely for the purpose of delay, and if thereby the adverse party will be unable to have the case tried at the next term (§ 244). Within twenty days (six days in the N. Y. City Court) after a pleading, or the answer or reply thereto, has been served, or within twenty days after a i notice of motion addressed to the pleading has ( been served, a party may once amend it ofi course, that is, Avithout applying to the court oirf a judge for permission (id.). The amendedp pleading supersedes the original, and default in meeting it by answer or reply, when neces-i sary, has the same effect as though it were the original pleading (Court Eule 101). The right to amend as of course permits the substitution or addition of new causes of action ' or defenses. The right is exhausted when the' complaint, or the answer thereto, has been once amended (Mussinan v. Hatton, 31 Abb. N. C. 254). The pleading so served should show its character, as, "Defendant for his amended an- swer to the amended complaint, denies," etc. If a pleading is served by mail the adverse party's time within which to amend will be in- creased three days (§ 164). At any time before trial, the court on motion may permit an amendment of the pleading; it has power to permit any amendment in fur- therance of justice (Thileman v. Mayor, 71 90 A HANDBOOK OF CIVIL PEACTICE. App. Div. 595 ; Davis v. Lake Erie E. Co., 110 N. Y. 646). When necessary it may direct the addition or substitution of parties, or strike out unnecessary parties; while the court may not direct the substitution of another person in place of a single defendant (N. Y. State, etc. Assoc. V. Eemington Agric. Works, 89 N. Y. 22), yet if a party is sued in a representative capacity the court may order his substitution in his individual capacity, or vice versa (Boyd v. U. S. Mortgage & Trust Co., 187 N. Y. 262), or if sued as a corporation-, the true capacity as a voluntary association or co-partnership may be substituted (Munziger v. Courier Co., 82 Hun, 575; DeWitt v. Abraham Bros. Co., 170 App. Div. 610). At the trial, the court may permit a pleading to be amended which is objected to for failure to state a cause of action, or defense, or other- wise (Court Rule 166). But the trial court may not permit the substitution or addition of a different cause of action or defense, over a proper objection (Walrath v. Hanover Ins. Co., 216 N. Y. 220; Reed v. McConnell, 133 id. 425 ; Cruver Mfg. Co. v. Spooner, 147 App. Div. 471), and if a party discovers a defect in his pleading before the trial in time to make a mo- tion at special term to amend it, he should do so (Danzig v. Baroody, 140 App. Div. 542). The adverse party should be properly protected by the imposition of adequate terms and the PBOCEDUBE IN AN ACTION. 91 allowing of ample opportunity to meet the changed situation (id.). If at the trial a plead- ing is found defective to an extent requiring the changing of the issues to the prejudice of the adversary, the trial court will not allow an amendment, but give leave to the party in fault to make a motion at special term for leave to amend (Steffe v. Heinzer, 156 App. Div. 575). A mistake in the remedy asked for may be cor- rected by amendment (§ 111). It not infrequently happens that a variance appears at the trial between the allegations in a party's pleading and the evidence he offers to sustain them. An immaterial variance between the pleading and proof, viz., a variance which has not actually misled the adverse party, may be ignored, or an immediate amendment made to obviate it (§ 434). If the variance is ma- terial, i.e., is shown by the adverse party to have misled him to his prejudice, the trial court should impose such conditions upon allowing an amendment of the pleading as will fully pro- tect such adverse party, including usually an adjournment of the trial (Danzig v. Baroody, 140 App. Div. 542). A failure to prove a ma- terial allegation in its entire scope and mean- ing is not a variance, however, but a failure of proof, and is not within the power of the court to obviate by amendment (§ 434; Fangar v. Cospey, 87 App. Div. 417; Lynch v. Cronk, 91 Misc. 422). 92 A HANDBOOK OF CIVIL PRACTICE. Irrelevant, redundant, sham, frivolous, repe- titious, unnecessary, impertinent or scandalous matter in a pleading or any matter that may tend to prejudice, embarrass or delay the fair trial of the action, may be stricken out (Court Kule 103). No allegation can be considered scandalous unless it has no possible relevancy to the controversy (Persch v. Weideman, 106 App. Div. 553; Hilton v. Carr, 40 App. Div. 490). The attorney interposing a pleading con- taining scandalous matter may be compelled to pay costs awarded upon its being expunged (§ 1450). An irrelevant allegation is one which has no substantial relation to the controversy and which cannot affect the court's decision (Wayte v. Bowker Chemical Co., 196 App. Div. 665). An indefinite, obscure or uncertain denial or allegation may be ordered made definite and certain when its precise meaning or application is not apparent (Court Rule 102; Stabilimento V. Joseph, 189 App. Div. 173). The motion is founded on the pleadings only, the moving party being under the burden of establishing that the allegations to which the motion is directed are not sufficiently definite and certain to comply with the rules of pleading. For example : when the date of a transaction is omitted (Cerro de Pasco Co. V. Haggin, 106 App. Div. 95) ; when complaint does not show whether contract was oral or written (First Presb. Church v. Ken- PROCEDURE IN AN ACTIOIT, 93 nedy, 72 App. Div. 82) ; when defendant denies each and every material allegation of the com- plaint. If the motion is granted the party at fault will be directed to serve an amended pleading, made more definite and certain in the specified particulars (See, further. Bill of Particulars, post). A frivolous answer or reply is one that is plainly insufficient in law to constitute a de- fense; such a pleading should not bar the ad- verse party from the relief he seeks, and upon proper motion the court, if the pleading is held to be frivolous, may treat the pleading as a nullity and give judgment accordingly, or allow a new pleading to be served on terms (Court Eule 104). T-he frivolous character of the pleading must appear on mere inspection (Bed- low V. Stilwell, 45 App. Div. 557) ; no affidavits are available or necessary on the motion (Dan- eel v. Goodyear Co., 67 id. 498). A sham answer or reply is one that is clearly shown to be false in the facts it alleges ; such a pleading may also be treated as a nullity by the court upon motion (Court Eule 104). It is "beyond the power of the court to strike out as sham a defense consisting of properly framed verified denials of the allegations of the adverse party (Wayland v. Tysen, 45 N.' Y. 281 ; Schles- inger v. McDonald, 106 App. Div. 570). An attack on a pleading as sham must be founded 94 A HANDBOOK OF CIVIL PRACTICE. on affidavits establishing the falsity of the facts pleaded beyond a reasonable doubt (Zimmer- man V. Meyrowitz, 77 App. Div. 329). A supplemental pleading adds some facts oc- curring after service of the party's former pleading, or of which he was ignorant at that time. Such a pleading may be served only upon leave of court first obtained ; such a plead- ing may constitute an addition to the former pleading or take its place (§ 245). Facts oc- curring after action brought which may be the basis of an independent action may not be set up by supplemental complaint (Park & Sons v. Hubbard, 198 N. Y. 136 ; Faas v. Faas, 57 App. Div. 611, subsequent acts of adultery in action for divorce). Where such subsequent facts merely aid the original action, they may be set forth (Smith v. Smith, 99 App. Div. 283, subse- quent acts of cruelty in action for separation), but not so as to cure a defect in an action when commenced (Holly v. Graf, 29 Hun, 443, goods sold, answer an unexpired credit, application denied for leave to serve a supplemental com- plaint alleging its expiration after action be- gun ; Lafayette Trust Co. v. Peck, 133 App. Div. 370). A defense, such as release of claim (O'Brien v. Met. St. Ry. Co., 27 App. Div. 1), subsequent adjudication of the controversy (§ 245) should be pleaded by supplemental an- swer. The supplemental pleading need not be self sufficient; it is to be considered with the PROCEDURE IN AN ACTION. 95 pleading to which it is a supplement (Mulligan V. O'Brien, 119 App. Div. 355). A bill of particulars of the claim of either party may be ordered by the court to be de- livered to the adverse party (§ 247). The office of the bill of particulars is to set forth par- ticular facts in addition to those required by the rules of pleading to be alleged, and is awarded to the party showing himself fairly entitled thereto in order to enable him to prop- erly prepare against the claim or defense (Dwyer v. Slattery, 118 App. Div. 345). The party seeking such further particulars from his i adversary must show the necessity therefor by; affidavit of the party, not the attorney (Van Olinda v. Hall, 82 Hun, 357). An application by defendant before answer is usually prema- ture, for he will rarely need the bill in order to frame his answer (Schultz v. Rubsam, 104 App. Div. 20). It is not always easy to determine whether the proper application should be for a bill of particulars, or to compel the adversary's pleading made more definite and certain (Mul- len V. Hall, 51 Misc. 59) ; the motion, however, may be framed to apply for either, in the alter- native (§ 117). The bill of particulars, when served, limits the proofs to the matters em- braced within its scope. It may be granted to furnish a party information either (a) of the facts of the charge or defense, or (b) what his adversary claims the facts to be. Particulars 96 A HANDBOOK OF CIVIL PRACTICE, with respect to plaintiff's items of special dam- age are usually directed (See Boyle v. Goodwin, 98 App. Div. 95). The practice with reference to obtaining a bill of particulars is usually to serve a demand therefor, and if not furnished in compliance therewith to make a motion for an order directing its service; the court in di- recting the service of a bill of particulars may award costs of the motion to the moving party if a demand for the bill had been previously made (Court Eule 115). If a bill of particulars has been ordered served, but the order has, not been obeyed, an order must be secured from the court, on motion in advance of the trial, pre- cluding the party in default from giving evi- dence of the matters of which particulars have not been delivered (§ 247 ; Posner v. Rosenberg, 149 App. Div. 270). If a bill of particulars served is defective the court may order a fur- ther bill to be served. If the pleading, as to which the particulars have been directed is verified, the bill must also be verified, to the effect that the party believes it to be true (Court Eule 116). The order directing service of the bill may properly direct that if the party is ignorant of particular facts he shall so state under oath (Ziadi v. Inter. Ry. Co., 97 App. Div. 137). The complaint in an action upon an account need not set forth the items composing it (§ 246) though it is better practice to do so (Liebman Co. v. Cody, 21 App. Div. 235). The PROCEDURE IN AN ACTION. 97 defendant has the right to a verified bill of such items within ten days after demand therefor; upon failure to serve the bill of items, the court will on motion made before trial preclude plain- tiff from giving evidence of the account (Geb- hard v. Parker, 120 N. Y. 33; McKenna v. Horwitz, 163 App. Div. 541), or direct a further bill if the one served is defective (§ 246). The following speciaJ provisions affecting the frame of the pleadings either change some com- mon law rule of pleading or create new rules : A private statute is sufficiently pleaded by designating its chapter, year of passage and title without setting forth any portion of its contents (Court Rule 98). Courts take judicial notice of public statutes and they are not to be pleaded (Parson v. McDonald, 88 App. Div. 552). Municipal charters are private statutes and provisions thereof must be pleaded (not so in the case of New York City charter, Edwards V. Law, 63 App. Div. 451), and municipal or- dinances must be pleaded and proved (Porter V. Waring, 69 N. Y. 250), unless otherwise pro- vided by statute or the court itself is the court of the city whose ordinance is sought to be en- forced (Buffalo V. Stevenson, 145 App. Div. 117). A judgment or order of a court of special jurisdiction is sufficiently pleaded by alleging it to have been duly given or made (Court Rule 7 98 A HANDBOOK OF CIVIL PRACTICE. 95) ; a denial of this allegation will require the facts conferring jurisdiction to be established at the trial. If the court was one of general jurisdiction the common law rule of pleading, which raises a presumption of jurisdiction and regularity, continues in force and authorizes a general allegation of the giving of the judg- ment. The court rule applies to pleading de- terminations of foreign courts of special juris- diction. The word "duly" is of the substance of the allegation, and its omission is fatal (Tut- tle V. Eobinson, 91 Hun, 187). Performance of a condition precedent in a contract is sufficiently pleaded by alleging that the party "duly performed all the conditions on his part" (Court Eule 92) ; a denial of this allegation will require that such performance be established in detail on the trial. Of course, such an allegation will be unavailable if the party has also alleged specifically what he did which shows a failure to perform (Weintraub v. F. M. B. Eealty Co., 196 App. Div. 525). Proof of waiver of performance is not admis- sible under such an allegation (LaChicotte v. Richmond Co., 15 App. Div. 380; Jankowitz v. Manh. Swiss Emb. Co., 196 id. 22). An instrument for the payment of money only may be pleaded by setting forth a copy and stating that there is due on it a specified sum which the party claims (Court Eule 94). See form of complaint on p"i-omissory note, supra. PROCEDUKE IN AN ACTION. 99 In libel and slander plaintiff may allege that the defamatory matter Avas published or spoken concerning him without alleging any extrinsic fact from which its application to plaintiff Avould appear (Court Rule 96). See form of complaint on libel, supra. The defendant in such an action and in other actions for tort may allege and prove mitigating circumstances not- withstanding he has already pleaded a justi- fication such as the truth of the charge (§§ 338-9). If a party is a corporation, the complaint must so allege, and whether it is foreign or domestic; if the former, the State, country or government by or under whose laws it was created must also be alleged (Court Rule 93). Omission to so allege does not make the com- plaint insufficient on its face; the remedy is by motion to make more definite and certain (Harman v. Vanderbilt Hotel Co., 79 Hun, 392). The corporate capacity of a party is not put in issue by a denial; in order to compel plain- tiff to prove that fact the answer must be veri- fied and must contain a specific allegation that the party is not a corporation ( Court Rule ^3). This rule applies to a foreign corporation (Vulcan V. Myers, 58 Hun, 161). Misnomer of the corporation is waived un- less specially claimed by the answer (Court Rule 93). 100 A HANDBOOK OF CIVIL PKACTICE. A corporation's answer to a complaint founded upon its unpaid note or other instru- ment for the payment of money only, is ineffec- tive unless verified (§ 252). The time within which pleadings must be served is twenty days in courts of record (§§ 257, 263, 273). If the last day for such ser- vice falls on Sunday or other holiday, the plead- ing may be served on the next secular day (G-en. Constr. Law, § 20; Gilbert v. Johnson, 169 App. Div. 840). This period may be en- larged by a court or judge (§ 98) ; the enlarge- ment may be ordered on good cause shown, although application be not made until the time has expired (id.). Motions addressed to a pleading (such as, to make it more definite and certain) must be noticed before service of an answer or reply thereto, and made within twenty days after service of such pleading (Court Eule 105). An extension of such time may be obtained from the court only upon two days' notice to the ad- versary (id.). A stipulation between attorneys extending the time to plead or make such a motion may be as follows: (Title) The time of the defendant to answer the complaint herein, or to make such motion with reference thereto as he may be advised, is PROCEDURE IN AN ACTION, IQl hereby extended to and including the . "^ . day • of ,19.. r- ,^ Dated, , (Signatures of Attorneys). An application may be made to the court or judge without notice to adverse party for an order extending time to plead, except that if additional time has already been obtained by stipulation or order, or if the action is founded on a promissory note or other instrument for the payment of money only, two days' notice of the application must be given (Court Eules 86-7). No extension will be granted to a de- fendant to answer, or to a plaintiff to reply to a counterclaim, unless he presents an affidavit showing merits in support of such extension {id. 88). Each pleading, as well as the summons, must be filed with the clerk of the court by the party serving it within five days after notice from the adverse party requiring such filing; upon default in so filing, the court or a judge may order that it be deemed abandoned, absolutely or upon failure to file within a time specified in the order (§ 100). IV. Provisional and Collateral Remedies. For the more effectual preservation or pro- tection of his rights during the pendency of the action, plaintiff may, at the outset of the litigation or at any time prior to the trial, in- 102 A HANDBOOK OF CIVIL PRACTICE. voke what are called provisional remedies; they are (1) arrest of the defendant; (2) in- junction restraining specified acts; (3) attach- ment of defendant's property; (4) temporary receiver (Practice Act, Arts. 46-61). These same remedies are available to a defendant who interposes a counterclaim upon which he demands an affirmative judgment (§ 824). An election between these remedies may be com- pelled in a case where plaintiff applies for more than one in the same action (§ 823). Another remedy of somewhat similar char- acter and purpose is the writ of replevin. These remedies will be separately consid- ered in detail : (a) The order of arrest may be obtained in any of the following actions (§§ 826-7) : To recover a fine or penalty; Damages for a tortious injury to person or property including fraud and deceit; Breach of a promise to marry; Malpractice and misconduct or neglect in office or professional employment; Eeplevin, where the complaint charges that the chattel is concealed, removed or disposed of; Embezzlement or misappropriation of money or property by a defendant who is alleged to have received the money or property as the attorney, agent, broker or other fiduciary; PROCEDURE IN AN ACTION. 103 Embezzlement of public money or the mis- appropriation of public property; In any action upon contract, where the com- plaint charges defendant with fraud in incur- ring the liability, or with fraudulent disposition of his property (such fraud must then be proven as a material part of the cause of ac- tion) ; however, if defendant has not been ar- rested in the action, the allegations of fraud may be treated as surplusage and stricken out by the trial court or disregarded (McGuire v. Barber, 52 App. Div. 276) ; In any action (but this would be an action in equity only) where the judgment demanded re- quires the defendant's performance of some act, neglect or refusal to perform which would be punishable as a contempt of court, and the defendant is a non-resident, or, if a resident, is about to depart. S"J /- The recovery of a foreign judgment for the same cause of action, or if the action is founded on fraud or deceit the recovery of such a judg- ment for the price or value of the property ob- tained thereby, will not affect the right to an arrest (§ 828). Without this special provision the cause of action would be merged in the for- eign judgment, and only an action thereon would lie; such an action would not permit an order, of arrest, without the aid of this statu- tory provision, but it is immaterial whether the action in which the arrest is obtained is founded 104 A HANDBOOK OF CIVIL PRACTICE. on the foreign judgment or the original cause of action (78 Hun, 614). A woman may be arrested in such an equity action, or for a wilful injury only (§ 829). Knowingly receiving stolen property or repre- senting worthless securities as good constitutes a wilful injury (12 Abb. N. C. 305; 2 id. 193). The order of arrest is granted by a judge of the court, or any county judge, except that the ^gourt^ must grant the order where the ground of arrest is defendant's non-residence or in- tended departure (§§ 817, 827) ; application for the order is made upon a verified complaint, or affidavit, showing a sufficient cause of action of a character above specified, affidavit showing facts pertinent to the amount of bail which should be required (Court Rule 81), and plain- tiff must furnish an undertaking in at least one-tenth the amount of bail required, and at least the sum of $250 (§§ 833-5), except that it may be dispensed with when the arrest is pro- cured in an equity action under § 827. The affidavits presented on procuring the order of arrest must be filed within ten days after the arrest or the order may be vacated (Court Eule 80). The sheriff in arresting defendant must serve him with copies of the papers (§ 839). The order must be subscribed by the plain- tiff's attorney, and also (unless granted by the court) by the judge, and requires the sheriff to arrest the defendant if found within his county and to hold him to bail in a specified sum ( Court PROCEDURE IN AN ACTION. 105 Rule 82). Plaintiff must show by affidavit facts and circumstances from which the amount of bail required may be determined {id. 81). A defendant -at any time before final judg- ment (except in such equity action when the application must be made within twenty days after arrest) may apply to vacate the order, reduce the amount of bail, or increase the se- curity given by plaintiff; if made upon the plaintiff's papers only, and the order of arrest was granted by a judge out of court, the appli- cation may be made to the same judge with or without notice to plaintiff, or to the court upon notice; if made on affidavits submitted by de- fendant the application may be made to any judge of the court or to the court, on notice, and may be opposed by new proofs submitted by plaintiff (§§ 844-5). If the complaint is in- sufficient the court or judge hearing the motion to vacate may permit plaintiff to amend the complaint to sustain the order (§ 843). The defendant after arrest is given reason- able opportunity to procure bail, and upon giv- ing bail or depositing its amount in money, he must be discharged (§ 847). He is entitled to jail liberties upon giving the required under- taking (Prison Law, § 362) and may elect to give bail for the jail liberties only (§ 848). Unless discharged upon giving bail, the sheriff must keep the defendant in his custody until discharged according to law (§ 840), which will be after six months ' imprisonment under a 106 A HANDBOOK OF CIVIL PRACTICE. body execution upon a judgment in the action in favor of plaintiff for $500 or over, and three months upon a judgment for a lesser sum (Civil Eights Law, § 72). This remedy of arrest is not commonly used in a common law action, and is not an efficaci- ous one therein. To be released on bail the se- curity is conditioned on defendant being amen- able to a mandate to enforce final judgment in the action (§ 849), which means that he will surrender himself to the sheriff when a body execution is issued upon the judgment. When held under, a body execution the defendant may give security that he will not go beyond the jail liberties during the three or six months (Prison Law, §§ 362, 364) ; the jail liberties are liberal, for example in New York county the whole of that county, in Erie county the limits of the city of Buffalo (Prison Law, §§ 357-8). But the remedy when obtainable in an equity action under § 827 is most efficient. Defendant must remain in custody until final judgment, unless he gives bail to the effect that he \\t11 obey the directions of the court in the action or in default of so doing will surrender himself for punishment (§ 849). So in replevin a de- fendant must remain in custody until he gives an undertaking that he will deliver the chattel to plaintiff if the judgment so provides, and pay the amount of money awarded plaintiff therein {id.) ; when obtainable in a replevin ac- PKOCEDURE IN AN ACTION. 107 tion the remedy therefore is an efficient one, but plaintiff has to allege and prove defendant's concealment or disposition of the chattel (§ 826). (b) An injunction order may be issued re- straining specified acts of the defendant until the trial (called, variously, a temporary injunc- tion, or injunction pendente lite) (§ 876). Such an injunction order may be granted only under statutory authority (Bachman v. Harrington, 184 N. Y. 458) and may be obtained (§§ 877-8) : 1. Where the complaint demands and its allegations show that plaintiff is entitled to a permanent injunction restraining the commis- sion or continuance of the acts now sought to be enjoined pending trial; 2. Where defendant is doing or is about to do some act which will impair plaintiff's rights respecting the subject of the action; 3. Where defendant threatens or is about to fraudulently dispose of or remove his property. The order is granted by the court or a judge thereof, or any county judge (§ 817), and un- der subd. 1, supra, a verified complaint is essen- tial (Huntington v. Cortland Home Tel. Co., 62 App. Div. 517), as well as affidavits showing the continuance of the acts by defendant and resultant injury to plaintiff ; under subds. 2 and 3, the complaint is not essential, but if not pre- sented the affidavits must show a complete 108 A HANDBOOK OF CIVIL PRACTICE. cause of action in plaintiff's favor, as well as establishing the extrinsic facts upon which the right to the restraining order depends. A verified complaint, or other pleading, is capable of being used as an affidavit (§ 7) ; nevertheless, while an allegation therein on in- formation and belief is effective when it is being used as a pleading, the allegation is worthless when the pleading is used as an affidavit (See Clark V. King, etc. Co., 40 App. Div. 405). Plaintiff's papers upon the application for the order must include an undertaking for such sum as shall be specified, and providing for plaintiff's payment of damages sustained if the court finally decides that plaintiff was not entitled to the injunction (§ 893) ; particular re- quirements as to character of security in vari- ous actions are found in §§ 884-890. The order may be granted to accompany the summons, or at any time before final judgment ; it may be granted without notice, unless de- fendant has previously answered; it is dis- cretionary, however, with the court or judge to require notice in any case (§§ 818, 882). The order briefly recites the grounds for the injunction; if a court order, a certified copy thereof must be delivered to the defendant, but if a judge's order, the original must be shown and a copy delivered to him; in each case copies of the papers upon which the order was granted must also be delivered (§§ 821, 883). An injunction to restrain a State officer or PEOCEDTJBE IN AN ACTION. 109 board, or his or its employee, from the perform- ance of a statutory duty may be granted only by the supreme court, and upon notice (§ 879). An order granted without notice may be va- cated or modified without notice upon defend- ant's application, on the papers on which it was granted, and by the judge (or, in ease of his absence or disability and consequent injury from delay being shown, by any other judge) or by the court granting it, or by the Appellate Division (§ 897) ; upon this ex -parte applica- tion the court or judge may permit plaintiff to subsequently supply new proof, and may per- mit the recitals in the order to be amended, thus obviating the necessity of a vacatur upon a mere showing of amendable defects (§ 822). Defendant may apply upon notice to vacate the order upon affidavits on his behalf, which ap- plication may be made to the judge granting the order, or to a proper term of the court, and plaintiff may oppose such an application by new proof (§ 898). Upon a motion made on notice to vacate or modify the injunction order, the court or judge may require a new undertaking in the same or a different sum; or if the damages are capable of being adequately compensated in money, the injunction order may be vacated upon defend- ant's giving the required security (§ 900). The damages suffered by the defendant by reason of the improvident granting of such an injunction order may be summarily determined llO A HANDBOOK OF CIVIL PEACTICte. by the court, or upon a reference, or a writ of inquiry; the amount of damages so ascertained is conclusive upon the plaintiff and his sure- ties (§§ 894-6). (c) A warrant of attachment is the most commonly used provisional remedy; by means thereof a specified amount of defendant's prop- erty pending the litigation may be seized, where the action is brought to recover a sum of money only, for (§ 902) : 1. Breach of contract, express or implied, other than a contract to marry; 2. Wrongful conversion of personal prop- erty; 3. An injury to person or property in conse- quence of negligence, fraud or other wrongful act; 4. A wrongful act, neglect or default caus- ing the death of a person, when the cause of action therefor has arisen in the State. Since the action must be brought "to recover a sum of money only," no attachment can be obtained in equity actions for specific relief. Plaintiff must show by verified complaint, or affidavit, or both, that one of the above causes of action exists (Makepeace v. Dilltown Coal Co., 179 App. Div. 662), and either (§ 903) : 1. That defendant is a non-resident or a for- eign corporation; 2. Or, being a resident, that he has departed PROCEDXJEE IN AN ACTION. Ill from the State with intent to defraud his credi- tors or avoid service, or keeps himself con- cealed with the like intent, or, being a natural person or a domestic corporation, has removed or intends to remove property from the State with intent to defraud creditors, or has as- signed, disposed of or secreted, or is about to assign, dispose of or secrete, property with like intent, or, being a natural person, has made and signed, or caused to be signed, a false statement in writing as to his financial respon- sibility, for the purpose of procuring or ex- tending his credit, or, being an adult and a resi- dent of the State, has been continuously absent from the State for more than the preceeding six months, and has not designated a person upon whom a summons may now be served in his behalf, or the person so designated cannot after diligent effort be found, or, being a do- mestic corporation, no person can be found on whom a summons may be served. If the action is brought upon contract, plain- tiff's affidavit must also show that he is entitled to recover a sum stated therein over and above all counterclaims known to him (§ 903) ; if the action is brought by an assignee, his own affi- davit as to counterclaims known to him suffices, notwithstanding counterclaims against his as- signor might be interposed (McMahon v. Rose- ville Trust Co., 159 App. Div. 640). Such state- ment as to counterclaims made by a party's agent who shows all the transactions were had 112 A HANDBOOK OF CIVIL PRACTICE. with him will be accepted (Hanson v. Marcus, 8 App. Div. 318). If the damages are unliqui- dated in amount, the complaint or affidavit must show facts by which the amount of damages is legally established (Delafield v. Armsby Co., 62 App. Div. 262). In other words, the evidence must be presented upon which an award of damages by a .jury could be properly rested. Of course in many actions for tort or breach of contract the quantum of damage cannot be shown with certainty, but this is not essential (See Schreiber v. Gem Stopper Co., 186 App. Div. 60). Statements contained in an affidavit, as of the affiant's knowledge, where his relation to the controversy does not show that he could have such knowledge, will be rejected by the court in the absence of a further showing of the way in which such knowledge was obtained (Crowns v. Vail, 51 Hun, 204, affidavit made by plaintiff's attorney; Hoorman v. Climax Cycle Co., 9 App. Div. 579, affidavit made by as- signee). The oath of some person not shown to have had personal transactions with the de- fendant, that he is a non-resident or that it is a foreign corporation, will not be accepted (Dain's Sons Co. v. MeNally Co.,. 137 App. Div. 857). When a verified complaint is used as an affi- davit, allegations on information and belief prove nothing, and pleadable facts are not sufficient always as evidentiary facts (See Dex- PKOCEDUEE IN AN ACTION. 113 ter & Carpenter, Inc. v. Lake & Export Coal Co., 196 App. Div. 766; Wallace v. Baring, 21 App. Div. 477). If the affidavit of the person having the per- sonal knowledge of some essential facts is not obtainable without delay which will interfere with the haste with which this remedy needs to be employed, the court will accept a state- ment of another on information derived from the person having the knowledge, accompanied always with a showing of the facts excusing the production of the latter 's affidavit (See Levy V. Goldstein, 18 Misc. 639). Information shown to have been derived from a relative or employee of the adverse party shows on its face the excuse. The warrant may be granted by a judge of the court or any county judge, to accompany the summons, or at any time before final judg- ment (§ 818) ; but if the summons is not already served, personal service must be effected within thirty days after the granting of the warrant, or service made without the State or publica- tion of the summons commenced pursuant to an order therefor (§ 905). Plaintiff must, upon applying for the warrant, present an under- taking in at least $250 to pay defendant's costs and damages if the latter recovers judgment, or the attachment is vacated (§ 907). The warrant must be subscribed by the judge and by plaintiff's attorney (Court Bule 84), must briefly recite the particular ground of the 114 A HANDBOOK OF CIVIL PRACTICE. attachment (§ 821), may be directed to the sheriff of a particular county or generally to the sheriff of any county and must require the sheriff to attach so much of the defendant's property, within his county, not exempt from levy, as shall satisfy the amount of the plain- tiff's demand as specified in the w^arrant, with costs and expenses (§ 910). Warrants may be issued at the same time to sheriffs of different counties (id.). In reciting the ground for the attachment, a statement of two grounds in the disjunctive is not a statement of either (Cronin V. Crooks, 143 N. Y. 452) ; such a defect would be amendable (§822). The sheriff may attach: 1. The defendant's interest in real property, whether vested or not vested, if capable of being aliened (§ 913) ; 2. Any leviable interest in personal prop- erty; and in addition thereto, the further in- terests in personal property which cannot be reached under an execution, against property as follows: 3. A sum owing by a person within the county to a foreign corporation, defendant, on a sub- scription to its stock (§ 914); 4. The interest which defendant has in the stock or bonds of a corporation or association (§ 915) ; 5. A cause of action arising upon contract, including any debt, and any instrument for the PROCEDUKE IN AN ACTION. 115 payment of money, negotiable or not, past due or not yet due, belonging to the defendant and found within the county (§ 916) ; 6. Upon defendant's interest in a decedent's estate, capable of assignment, existing under intestate succession laws or by provision of a will (§ 916). For the purpose of ascertaining the where- abouts of any leviable interest or right pos- sessed by the defendant, the sheriff may de- mand that he be furnished by the defendant's, debtor, or a person holding any of the defend- ant's property, with a certificate of the amount and character of the debt or property, and by an officer of a corporation with a certificate of the amount and character of the defendant's interest in the stock of the corporation (§ 918). If such certificate is not furnished the sheriff, or is false or defective, the person required to make it may be required to submit to an ex- amination under oath as to such matters (§ 919). The levy hy the sheriff is made (§ 917) : Upon real property, by filing with the county clerk a notice of the attachment stating the parties, amount of the claim, and description of the property attached; Upon personal property capable of manual delivery, by the sheriff's taking actual posses- sion thereof, and delivering to the person from 116 A HANDBOOK OF CIVIL PRACTICE. whose custody it is taken a copy of the warrant and affidavit; Upon other personal property, by leaving a copy of the warrant certified by him, and a notice showing the property attached, with the person holding the same or against whom the demand exists, or an officer of the corporation in which the defendant owns stock, or the per- sonal representative of the estate wherein de- fendant has an interest. The sheriff must file with the county clerk an inventory and appraisement of the property attached (§ 921). He may collect all debts and other things in action attached, and for that purpose may bring actions in his own name or in the name of the defendant in the attachment action (§ 922). If the defendant is a non-resi- dent, and has been served without the State or by publication and has not appeared in the ac- tion, and before final judgment is entered, the sheriff may maintain an action against any per- son to compel the disclosure of property be- longing to the attachment debtor (§ 922). A sheriff may be required to sell attached perishable property, including live animals, at public auction (§ 923) ; he may try with a jury empaneled by him a claim interposed by a third person of title to attached property, and if the jury decides in favor of the claimant, must de- liver such property to him, unless indemnified by the plaintiff (§§ 924-5). Even if plaintiff gives such indemnity the claimant may secure PEOCBDXJEE IN AN ACTION. 117 the property by giving an undertaking for its value to the sheriff conditioned on the claimant in any action on the undertaking establishing his ownership of the property (§ 927). The jury's verdict adverse to the claimant does not prejudice his right to thereafter sije to recover the goods or their value (§ 926). If no proceedings are taken to reclaim the property, or to discharge the attachment, the sheriff keeps property attached, or the proceeds of property sold or of a demand collected by him to answer any judgment against the de- fendant (§940). The defendant, or any person who has ac- quired a lien upon the attached property sub- sequent to the attachment, may apply to va- cate or modify the warrant, or to increase the security to be given by plaintiff. If founded entirely upon the plaintiff's papers, the appli- cation may be made, without notice, to the judge who granted th6 warrant, or upon notice, to the court. If the application is made upon further affidavits, presented by the defendant, it may be made only upon notice, and may be opposed by new proof on plaintiff's part, which new proof when the substantial rights of the defendant so require, may be limited to mat- ters tending to sustain a ground for the attach- ment recited in the warrant (§§ 948-950). Where plaintiff's papers upon which the at- tachment was granted are insufficient to confer jurisdiction on the court to issue the warrant, 118 A HANDBOOK OF CIVIL PRACTICE. such defect cannot be cured by granting leave to plaintiff to file affidavits nunc pro tunc, but an omission, defect or other insufficiency may be allowed to be so cured (Dexter & Carpenter, Inc. V. Lake & Export Coal Co., 196 App. Div. 766). The court may discharge the attachment upon defendant giving proper security that "he will pay to the plaintiff the amount of any judg- ment recovered (§§ 952-9). A judgment recovered against a non-resident or foreign corporation is enforceable only against the property attached at the time judg- ment was entered, in case the defendant has been served with the summons without the State or by publication, and has not appeared in the action (§ 520). (d) A receiver may be appointed for the pro- tection of property (including the rents, profits or income of real or personal property) which is the subject of the action (§ 974) : 1. Before final judgment, where the property is in the possession of one of the litigants, and there is danger that it will be removed beyond the court's jurisdiction, lost, materially injured or destroyed; 2. By or after final judgment, to carry the judgment into effect or to dispose of the prop- erty as it directs ; 3. To preserve the property during the pen- dency of an appeal. PROCEDURE IN AN ACTION. 119 The statute is merely declaratory of the in- herent powers of courts possessing jurisdiction in equity (Decker v. Gardner, 124 N. Y. 334). The appointment is made only upon notice to the adversary, unless he has not appeared and is in default, or unless he is a non-resident and substituted service is pending (§ 975). If a mortgage provides that a receiver {i.e., a re- ceiver of the rents and profits pending a fore- closure action) may be appointed without no- tice, notice is not required {id.). The receiver contemplated by these sections is merely a temporary statutory officer with such powers as are specially conferred upon him; he is required to give security (§ 976). (e) There are some statutory provisions covering the disposition of property in litiga- tion. (a) Upon a party's admission that he is in possession of personal property which is the subject of the action and is held by him as trus- tee for another party, the court may direct its deposit or payment into court or delivery to the other party (§ 978). If such direction is disobeyed the sheriff may be required to take and deposit or deliver the property (§ 979). (b) If a judgment directs the deposit or de- livery of property, or the conveyance of real property, and the direction is disobeyed, the sheriff may take and deposit or deliver the 120 A HANDBOOK OF CIVIL PEACTICB. property, or may convey the real property (§ 979). In the absence of such a statute, a court of equity, which can only act in personam and coerce obedience to its directions through punishment for contempt, would be powerless in case the defendant had left the jurisdiction; the sheriff may now fulfil the terms of such a judgment under authority of the statute. (c) Where articles, which are the subject of an action, are perishable or likely to be injured from keeping, the court or judge may order their sale (§ 980). (f ) The writ of replevin secures the seizure of the particular chattels which are the object of plaintiff's action. Plaintiff's attorney sub- scribes and delivers to the sheriff of the county where the chattels are to be found a written requisition to the effect that the sheriff is re- quired to replevy the chattels described therein ; such requisition is deemed the mandate of the court (§ 1095). With the requisition there must be delivered to the sheriff an affidavit Avhich must particularly describe the chattels to be replevied and their value, and must allege (§ 1096) : 1. That plaintiff is the owner, or has a special property interest therein the facts respecting which must be set forth ; 2. That they are wrongfully detained by de- fendant ; PROCEDUKE IN AN ACTION. 121 If the affidavit is made after service of sum- mons the facts as to ownership and detention must refer to the time of the commencement of the action. 3. The alleged cause of the detention by de- fendant according to the best knowledge, in- formation and belief of the affiant; 4. That they have not been taken by virtue of a warrant in proceedings for the collection of a State or Federal tax, assessment or fine (or if so taken that the taking or detention was unlawful by reason of facts shown) ; 5. That they have not been seized under ex- ecution or warrant of attachment (or if so seized that they were exempt from seizure, or that the detention is unlawful by reason of facts shown) ; 6. Their actual value. An undertaking, in a sum not less than twice the value of the chattels as stated in the affi- davit, must also accompany the requisition; it in terms binds the sureties to the return of the chattels to the defendant if the return thereof be adjudged to him as well as the payment of any money award (§ 1099). The sheriff must forthwith take the chattels into his possession (or so many as he can find), if found in the possession of the defendant or his agent, and must leave with him a copy of the requisition, affidavit and undertaking (§ 1100). If they are secured or concealed in a building the sheriff first demands delivery and then must cause the building to be broken 122 A HANDBOOK OF CIVIL PRACTICE. open and must take the chattels (id.). The chattels must then be kept by the sheriff until the person entitled to their possession is ascer- tained, whereupon he must deliver them to such person upon payment of his fees (§ 1101). The defendant may regain possession of the chattels from the sheriff by serving upon the sheriff, within three days after the replevying of the chattels, a notice that he requires their return, and with the notice delivering to the sheriff an affidavit alleging ownership or special property thereof, and an undertaking, substan- tially similar in these respects to the plaintiff's like papers (§ 1103). Pending the trial of the action, the custody of the chattels is awarded to the plaintiff, if the sureties upon his undertaking are not ex- cepted to by the defendant (§ 1105), or if ex- cepted to, are allowed as sufficient (§ 1105), and the defendant does not apply to re-claim the chattels and procure the justification and allow- ance of the sureties upon his undertaking (§ 1105). If the defendant reclaims the chat- tels and gives a sufficient undertaking, the sheriff delivers the chattels to the defendant and delivers to the plaintiff the original under- taking of the defendant and his sureties with the examination of the sureties and the judge's allowance of them (§ 1105). It is not necessary fo the continuance of an action of replevin that the plaintiff shall require the replevying or that the sheriff shall be able to seize the chattels -(§ 1116). PKOCBDUEE IH AN ACTION. 123 Final custody of the chattels is awarded only- after the trial; the judgment establishes the right to the possession in one of the parties and fixes the value of the chattel in case delivery cannot be had (§ 1124). Eecourse to the under- taking given by the party securing the custody of the chattels from the sheriff may be had only after the return unsatisfied of an execution issued to the sheriff directing him to deliver possession of the chattel to the successful party, or if not found, to satisfy the sum awarded by the judgment out of the property of the unsuc- cessful party (§ 1128). The procedure in the action of replevin is hereafter considered. V. Other Miscellajieous Proceedings Prior to Trial. 1. Security for costs. ' 2. Tender and offer of judgment. 3. Discovery and inspection. ■ 4. Depositions. 5. Preparation of documentary evidence. • 6. Place of trial. '7. Death, of a party, or transfer of interest or devolution of liability. 8. Consolidation of actions. ■ 9. Interpleader. 10. Dismissal for want of prosecution. •11. Motions., •12. Service of papers. 13. Bringing to trial. 124 A HANDBOOK OF CIVIL PRACTICE. 1. Security for costs may be required of the plaintiff as of right whenever plaintiff, at the commencement of the action, is : 1. A non-resident (or in county and city courts, with some exceptions, not a resident of the county or city). 2. A foreign corporation. 3. A person imprisoned under execution for a crime. 4. The official trustee or assignee of a debtor or bankrupt on a cause of action accruing be- fore his appointment (§ 1522). Such security may be required after com- mencement of the action where plaintiff ceases to be a resident of the State (or county or city), or is adjudicated a bankrupt or an insolvent, or is sentenced to imprisonment for less than life {id.). Defendant cannot require such security of some of several plaintiffs unless he is entitled to require it of all of them {id.). A court or a judge, on proof by affidavit showing defendant entitled to require such security, must make an order that plaintiff de- posit $250 in court to be applied to payment of the costs if any awarded against him, or file an undertaking in a like amount, and that all his proceedings be stayed meantime (§ 1524). If plaintiff files an undertaking, the surety or sureties thereon must show financial sufficiency if excepted to by defendant (§§ 1526-7). PROCEDURE IN AN ACTION. 125 Until such, security is given, plaintiff's attor- ney is personally liable for costs to the extent of $100, if defendant is entitled to require such security at the time of the commencement of the action (§ 1530). The court may, in its discretion, upon de- fendant's motion therefor, require similar se- curity for costs when a person is suing or is sued in a representative capacity, or as trustee of an express trust (§ 1523). If plaintiff fails to comply with the order re- quiring him to give security for costs, or to procure the allowance of the undertaking given by him, defendant is entitled to a judgment of dismissal of the complaint with costs (§ 1529). 2. A common law tender may be made at any time before action commenced. Such a tender must be kept good, and when defendant an- swers he must pay the money into court to the credit of plaintiff in the action, and serve no- tice on plaintiff with his answer of having done so. If insufficient in amount the tender has no effect on subsequent interest or costs, and the amount thereof is credited upon the judgment (Hoffman v. Rose Dress Co., 179 App. Div. 57). If sufficient in amount the effect of such a tender is to stop interest, and to give defendant costs. Another effect at common law was to vest title to the money on deposit in the plain- tiff, in no way dependent on the result of the action (Mann v. Sprout, 185 N. Y. 109). 126 A HANDBOOK OF CIVIL PRACTICE. Under statutory permission defendant may make a tender, at any time after action begun and before trial of the amount of the accrued costs and such sum of money as he considers fairly due, when the action is upon contract for ~a definite sum, or for a casual or involuntary injury to person or property (§ 171). A tender which fails to include costs is insufficient (Sirie V. Godfrey, 196 App. Div. 529). If such tender is not accepted, the amount must be paid into court within ten days to make it effective (§ 172). If it afterward prove to have been sufficient in amount, defendant may recover of the plaintiff the costs of the action accruing after the tender was made (§ 173). If plaintiff accept the amount tendered, this is deemed in satisfaction of the cause of action, and defend- ant may thereupon move for a dismissal of the complaint without costs {id.). When the money has been paid into court after a tender has been declined, the common law result (stated supra) has been now abrogated by statute and if de- fendant recovers judgment the money must be paid to him, while any surplus over the amount of a judgment in favor of plaintiff is paid to defendant (§ 173). Plaintiff may tender de- fendant a sum of money with respect to a counterclaim with result similar to a tender by the defendant (§174). Defendant may with his answer make a writ- ten offer permitting assessment of the damages PEOCEDUEE IIT AN ACTION. 127 at a specified sum (in case he fails in his de- fense) in an action for breach of contract; if plaintiff accepts this offer, by notice served with or before his notice of trial, the damages awarded to him must be assessed at such sum (§ 175). If the offer is refused, it cannot be proven at the trial, and if plaintiff's recovery of damages does not exceed the sum offered he must pay defendant's costs incurred in trying that question (§ 176). Defendant may before trial sei^^e an offer to allow judgment at a fixed sum, or to a specified effect, with costs; if plaintiff accepts the offer within ten days, either party may enter judg- ment accordingly, on the summons, complaint, answer, offer and acceptance; if the offer is not accepted it cannot be proven at the trial, and plaintiff must obtain a more favorable judgment or pay defendant's costs from the time of the offer (§ 177). Similar proceedings may be had regarding a counterclaim which is greater than plaintiff's claim or reduces it be- low $50 (§ 178). Such offer and acceptance may each be executed and acknowledged by the party making it; or it may be subscribed by his attorney, who must annex thereto his affi- davit that he is duly authorized to make it on behalf of the party (§179). Where plaintiff's complaint included two causes of action and defendant served an offer of judgment in the action, plaintiff's subse- 128 A HANDBOOK OF CIVIL PRACTIOB. quent course in accepting the offer and then securing an order that the action be severed and entering judgment upon only one of the causes of action was erroneous as the acceptance was a general settlement of the entire action (Walsh V. Empire Brick Co., 90 App. Div. 498). 3. A discovery and inspection of books, docu- ments or other papers, or permission to take a copy or photograph thereof, or to have a dis- covery of any article or property, in the pos- session or under the control of a party, and re- lating to the merits of the action, or the de- fense, may be allowed to the adverse party prior to trial (§ 324). It may also be allowed in order to enable a party to frame his pleading ( Cuban Tel. Co. V. Conklin, 196 App. Div. 463). The court may direct the party against whom it is sought to show cause why he should not be compelled to make the discovery sought ; the application for the order is made upon an affi- davit (Court Rule 140). The affidavit must show that the document or article is not in the applicant's possession or control, but is in the possession or under the control of the adverse party {id.). The remedy of a discovery is of Chancery origin, and was there obtained by filing a bill of complaint therefor; the remedy is now ob- tainable by application in the action, and the ancillary action has been rendered unnecessary and is abolished (§ 345). Applications for the PROCEDURE IN ^.N ACTION. 129 remedy are confined to actions at law, and may be classified under three heads: (a) where the writings are the foundation of the action, e.g., a written contract of which the applicant has neither an original nor a copy; (b) where under the relations between the parties, the applicant has an interest in the contents of the books or documents kept or possessed by the adverse party, e.g., a contract of employment under which compensation is dependent on sales or profits, and the employe brings an action for compensation which he alleges has become due ; (c) where an inspection is necessary to enable a party to prepare his pleading or to prepare for the trial, although he has no special interest in the writing or article, e.g., an action based upon a personal injury resulting from a defec- tive machine belonging to the defendant. In cases falling under (a) or (b) the discovery and inspection is usually granted as matter of course if reasonable necessity therefor is shown (Lockwood V. Bedell Co., 178 App. Div. 695) ; under (c) the applicant has the burden of con- vincing the court that it is both necessary and equitable that the remedy should be granted to him (See Murphy v. Keenan, 101 Misc. 443). Formerly this remedy was entirely distinct from an examination of the adverse party be- fore trial, and the two proceedings could not be united (Bloodgood v. Slayback, 62 App. Div. 315; Brewster v. Brewster Co., 127 App. Div. 729), but under the present practice incidental 130 A HANDBOOK OF CIVIL PRACTICE. discovery and inspection may be had during the course of such an examination (see Examina- tion before Trial, post). If the application is granted the order for the inspection will specify the time, place and manner thereof .(Court Rule 141), and may stay any other proceedings pending compliance {id.). A referee may be appointed to direct and superintend it {id. 142). Whenever in pleading or affidavit a party makes reference to a document, the adverse party may serve notice to produce it for inspec- tion and permit the taking of a copy; upon failure to comply with such notice, a party may not thereafter introduce such document in evi- dence unless he satisfy the court that such docu- ment relates only to his title, he being a de- fendant, or that he had some other sufficient excuse for its non-production {^rS^^.f- 1 On an application showing that a party at one time had in his possession or control one or more specific documents relating to the issues in the action, he may be ordered to state by affidavit whether he now has them, or if not when he parted with them and what has become of them (§ 343).^ 4. Depositions (i. e., testimony in advance of the trial for use thereat) may be taken as fol- lows: Of a party (§ 288); PEOCEDURE IN AN ACTION. 131 Of a person within the State not a party (§289); Of a party or person who is out of the State (§ 303). Depositions within the State may be taken before any judicial officer or notary public, or an attorney not connected with the action (§ 301) ; outside of the State they are taken be- fore some commissioner named in the commis- sion if one is issued, otherwise before any such of&eer or attorney in the State wherein the de- position is to be taken (id.). The deposition of a party may be taken at his own instance, or at the instance of the adverse party (§ 288). If the party to be examined is a corporation or association, the testimony of an officer may be taken (§ 289). A foreign cor- poration doing business in this State is subject to an examination before trial (Weinberg v. Berkshire Ice Co., 196 App. Div. 364). In an action to recover damages for personal injuries, plaintiff may be required, on defend- ant's application, to submit to a physical ex- amination by one or more physicians designated by the court or judge (§ 306). The deposition of a predecessor in title, or the original owner of a claim, which is the sub- ject of an action or counterclaim, may be taken at the instance of the party against whom the title or claim is interposed (§ 288). The deposition of a person within the State, 132 A HANDBOOK OF CIVIL PRACTICE. other than a party, may be taken, when it is shown that such person is about to depart from the State, or is so sick or infirm as to probably be unable to attend at the trial or is without the State or resident more than one hundred miles from the place of trial (§ 288). Such de- position cannot be read on the trial until it is first shown that the witness is dead or unable to attend because of physical or mental condi- tion, or is absent from the State or at a greater distance than one hundred miles (§ 304). This is often called a deposition de bene esse, mean- ing a conditional taking of the testimony for what it may prove to be worth. The restriction on its use does not apply to the deposition of a party, or of a person taken without the State (id.). The procedure in the taking of a deposition within the State is as follows : the party desir- ing to have the deposition taken serves notice on his adversary stating (a) the person before whom the testimony is to be taken, (b) the time and place selected, (c) the names of the per- sons to be examined, and (d) the issues upon which they are to be examined {§ 290) ; such notice must be served at least five days before the day named for the examination (Court Eule 121). A motion to vacate, modify or limit the notice may be made by the adverse party, and brings before the court all questions as to its propriety (§ 291; Court Rule 124); such motion is heard upon the notice and such aflfi- PROCEDURE IN AN ACTION.. 133 davits as the parties may submit, the party moving to vacate being required to state in his notice of motion the grounds therefor and to serve on the adverse party a copy of his affi- davits {id., Court Rule 124). If the motion to vacate or modify is made for the first available term it operates to stay the taking of the testi- mony (§ 291). Instead of proceeding by notice as above, a party desiring to have testimony taken may make a motion upon notice (§ 292) ; when an order therefor is thus obtained, pro- duction of books and papers in the possession of the party or person to be examined may be directed by the order, and they may be offered and received in evidence in addition to being used to refresh the memory of the one testify- ing (§ 296). Testimony material to an expected party to an action about to be brought may be obtained by deposition when shown necessary for the protection of his rights ; such a deposition may be had only under an order of the court or judge (§ 295). During the trial of an action, or even after judgment, the taking of testimony may be directed if ground therefor be shown (§ 293). The court upon a motion therefor, or upon a motion to vacate the notice given for the tak- ing thereof, will prescribe the terms and con- ditions of the taking of a deposition within the State, and may limit the scope thereof (§ 294; Court Eule 124). The testimony sought to be obtained must be material and necessary to the 134 A HANDBOOK OF CIVIL PKACTICE. party seeking it, in the prosecution or defense of the action (§ 288), and the applicant's affi- davits must so establish when he seeks an order directing the taking of the testimony, or opposes a motion to vacate the notice he has served (Terry v. Eoss, etc. Co., 180 App. Div. 714) ; this requirement is practically construed to limit the scope of the examination to those issues as to which the party seeking to have the testi- mony taken has the affirmative, or the burden of establishing (See Vogel Co. v. Baker Constr. Co., 148 App. Div. 639). An examination to discover whether or not a cause of action exists, or to find out the names of witnesses, will not be permitted (Boyle v. Munic. Gas Co., 96 Misc. 578; Elson v. Ungerer, 162 App. Div. 896). The parties to the action may stipulate that the testimony of a witness may be taken within or without the State before some officer or per- son named (§ 298). Such stipulation if provid- ing for an oral examination must be filed with the clerk before any proceedings may be taken thereunder (Court Rule 125). A witness is compelled to attend and testify upon an exami- nation before trial held within the State ; either a subpoena or the order directing the examina- tion and specifying the time and place therefor which has been obtained, is served, and wit- ness fees paid (§ 299). A witness must be ex- amined within the county of his residence or personal place of business (§ 300). All deposi- tions taken within the State are taken upon PKOCBDUKE IN AN ACTION. 135 oral questions, and the officer or person before whom a deposition is taken administers the oath, and takes down or causes to be taken down the questions and answers (§ 302). Such a deposition may be read upon the trial and with the same effect as though the witness were present and so testified; all objections to the witness and the evidence are made at the trial, and with the same force and effect as though the witness were then testifying, except that objections to the form of questions are waived unless noted on the deposition (§ 305). The deposition must be read to and subscribed by the witness (Court Rule 129). If a witness refuses to answer a question the refusal is re- ported to the court or judge who determines whether the witness should answer (id.). After a deposition is taken it must be filed with the clerk of the court within ten days, and remains there open to the inspection of the parties (Court Rule 132). The physical examination of a plaintiff un- der § 306 is a part of his examination before trial (Lyon v. Manhattan Ry. Co., 142 N. Y. 298). Plaintiff must answer questions pro- pounded relating to his injury and condition, and submit himself to the examination by the physicians named in the order. The physicians do not file a report, but may be called at the trial by either party to testify as to plaintiff's condition (Mizak v. Carborundum Co., 75 Misc. 205). 136 A HANDBOOK OF CIVIL PRACTICE. The deposition of a person without the State is usually taken upon written interrogatories prepared by the contending parties, settled by a judge of the court in case of a dispute, and annexed to the commission authorizing the tak- ing of the depositions (§ 302; Court Kule 126). Usually the court will not pass upon the relev- ancy or materiality of the testimony sought (Goshi Kaisha v. F. & C. Steamship Co., 196 App. Div. 551). The witnesses' answers to these interrogatories are taken before the com- missioner, subscribed by the witnesses and de- livered to the commissioner. The court rules (130-1) contain particular provisions as to the method of taking, certifying and returning the deposition M^hen taken without the State, and the commissioner must be provided with a copy of such rules and the sections of the Prac- tice Act to guide him (Court Rule 128). The entire record is then returned to the clerk of the court wherein the action is pending (Court Rule 130) and remains open to the inspection of the parties, and may be read upon the trial un- less previously ordered by the court to be sup- pressed for unfair conduct on the part of the party taking it (§304; Court Rule 133). Commissions to take testimony on oral ques- tions are not ordered except necessity therefor be shown, and then usually upon payment of expenses by the party applying. Letters roga- tory, i.e., a request to a judge or civil tribunal to summon before it persons within the foreign PEOCEDURE IN AN ACTION. 137 jurisdiction and have them examined, may be granted if need therefor can be shown, but may be issued only upon written interrogatories (§ 309). All objections to the admissibility of the evi- dence, and to the questions (except as to form of the question only, which is waived unless noted on the deposition), are made when the deposition is being read at the trial, as though the witness were then being personally exam- ined (§ 305). When a party desires the affidavit of a per- son to use on a motion, and such affidavit is re- fused, the party may secure the desired proof by having the deposition of such person taken (§ 307). A party may at least ten days prior to the term for which the action is noticed for trial serve upon the adverse party a notice calling for the admission for the purposes of the trial of facts therein specified; refusal to so admit may result in the expense of the proof of such facts being imposed on the party so refusing (§ 323). 5. Preparation of documentary evidence must of course precede the trial. A party may exhibit a document to his ad- versary and require an admission of its genuine- ness ; refusal to so admit may charge the refus- ing party with the expenses of establishing its genuine character (§ 322). 138 A HANDBOOK OF CIVIL PRACTICE. A party or person having the custody of a doenment material to the issues may be com- pelled to produce it in court by the service of a subpoena duces tecum (§§ 404-5). A subpcena to produce a book of account must be served five days in advance of the trial (§ 411), which requirement will usually compel resort to an order for its production which may be obtained from a judge and served within such limit of time. A subpoena to produce writings other than books of account need only be served suffi- ciently in advance of the day of trial to enable the witness to find and bring them. A law of this, or any other state, or country, may be read in evidence from a volume printed under the direction of, or containing a certifica- tion by the secretary of state, or purporting to be printed by the authority of such other state or country (§§ 380, 391). A certified copy of a paper filed or recorded in a public office, or court, of this State is evi- dence without further proof (§ 382). So as to copies of U. S. court records, or any U. S. de- partmental records (§§ 399-400). The certify- ing officer must state in his certificate that it has been compared by him with the original, that it is a correct transcript therefrom and of the whole of the original, and if he has a seal it must be attached (§§ 329-30). Any written instrument (including a convey- ance of real property, but excepting a promis- sory note, bill of exchange or last will), may be PROCEDURE IN AN ACTION. 139 acknowledged before a notary public or other authorized officer, or may be proved by the oath of a subscribing witness who is disinterested and whose oath is certified to by the notary, and such instrument is admissible in evidence without further proof of its genuineness, pro- vided, however, the authority of the officer tak- ing the acknowledgment or proof is properly shown when necessary (§§ 384, 386). This last requirement is the same as if the instrument were a conveyance of real property, and offered for record in the county where it is offered in evidence (§ 384). The presumption of genuine- ness may be rebutted by the adverse party (§ 384). If a party desires to show that a paper re- quired by law to be filed has not been filed, a certificate under the hand and seal of the officer to whom its legal custody belongs to the effect that he has made diligent examination in his office and that the paper cannot be found, is pre- sumptive evidence that such a paper has not been filed (§ 366). By express provisions of the Practice Act, many certificates and affidavits are made com- petent evidence and presumptively establish certain facts as therein stated; under common law rules of evidence such writings would be in- admissible and the facts could be established only by the oral testimony at the trial of the person making the affidavit or certificate. The most important of these instances (in addition 140 A HANDBOOK OF CIVIL, PRACTICE. to the provisions covering certified copies of filed papers, and writings which have been ac- knowledged, already referred to) are: certifi- cate of notary public as to presentment and pro- test of negotiable instrmnents (§ 368) ; affidavit of publisher or his foreman of publication of a notice required by law to be published (§ 370) ; certificate of marriage (§ 372), the books, or a copy of entries in the books, of a foreign cor- poration establish facts as to its acts or trans- actions (§§ 373-4) ; U. S. record of weather con- ditions (§ 375). 6. The proper place of trial (venue) of an is- sue of fact in an action in the supreme court is the county in which one of the parties resided at the time of the coumiencement of the action (§ 182); except that aU actions affecting real property or an interest therein must be brought in the county where some part of it is situated (§ 183), and an action against a public officer, or to recover a statutory fine or penalty, must be brought in the county where the cause of action arose (§ 184). If neither of the parties resides Avithin the State, an action in the supreme court (unless belonging to one of the above exceptions) may be tried in the county which the plaintiff has designated in his complaint (§ 182). Notwithstanding the designation of a wrong county in the complaint the action may be tried therein ; but if plaintiff has designated a wrong PROCEDURE IN AN ACTION. 141 county, the place of trial may be changed by the court to the jproper county, if plaintiff re- fuses to comply with defendant's demand therefor served with or prior to his answer (Court Rule 146). If defendant does not ob- ject, the action must be tried in the county which plaintiff has designated, notwithstanding it is not the proper county (§ 186; Phillips v. Tietzan, 108 App. Div. 9). If plaintiff has begun his action in a county court for a cause of action not relating to real property, or has sued in the City Court of the City of New York or in any other court of record, the Supreme Court may remove the ac- tion to that court for the purpose of changing the place of trial (§189; N. Y. City Court Act, § 22). The supreme court may at any time upon application change the place of trial to another county where there is reason to believe that an impartial trial cannot be had in the proper county, or the convenience of material Avitnesses and the ends of justice will be promoted by such a change (§ 187). The convenience of the parties or of expert witnesses is not considered; the place where the cause of action arose, and the ability to se- cure a speedy trial in one county but not in the other, are important considerations on this ap- plication (Graff v. Rome Bedstead Co., 98 App. Div. 152). Defendant's motion to change to 142 A HANDBOOK OF CIVIL PEACTICE. proper county may not be opposed by proof of convenience of plaintiff's vt^itnesses (Sylvester V. Lewis, 55 App. Div. 470). 7. In case of a party's death, or a transfer of interest or devolution of liability pending the action, the action does not abate as at common law. If the cause of action survives, the per- sonal representative or successor in interest of the deceased is substituted (§ 84). The action may proceed by or against the original party, despite a transfer of interest or devolution of liability, unless the court directs a substitu- tion or joinder (§ 83); such a substitution should not be ordered at the trial (McGean v. Man. Ey. Co., 133 N. Y. 9). In situations where upon the death of one of several plaintiffs or defendants the entire cause of action vests in or against the survivors (for example, upon the death of a partner) the action proceeds in favor of or against such sur- vivors (§ 85). The estate of a person or^arty jointly liable on contract with others is not dis- charged by his death ( § 85, overturning the rule at common law) ; no substitution of the per-' sonal representative is necessary in the action (id.), nor would it be proper to join such repre- sentative in the absence of a showing of in- solvency of the survivors (Potts v. Bounce, 173 N. Y. 335). Where the person to be brought in or sub- stituted makes the application, he may be made PROCEDTJKE IN AN ACTION. 143 a party by amendment of the pleadings and title ; if the plaintiff seeks to add such person, supplemental summons and pleadings must be made; if a defendant seeks such joinder the court may permit a cross action to be com- menced in the same court and continued with the original action as one action (§ 87). Where a representative action has been brought by a public officer, receiver, or other trustee, his death or removal does not result in the abatement of the action, but it is continued by his successor in office (§ 90). Actions for damages for personal injury, which abate by the death of either plaintiff or defendant, are saved from abatement if the death of the party occurs after trial and the rendition of a verdict, referee's report or court's decision, leaving only the formality of entering a judgment thereon (§ 89). A re- versal on appeal in such a case, where the re- versal is on questions of law only, will not re- sult in an abatement of such an action {id.). 8. Actions may be consolidated whenever it can be done without prejudice to a substantial right (§96). To accomplish such a consolida- tion, the supreme court may remove to itself an action in another court and consolidate it with one in the supreme court (§ 97). The purpose is to save time and expense, to prevent defend- ant from being harrassed by different actions capable of being joined (Miller v. Baillard, 124 144 A HANDBOOK OF CIVIL PRACTICE. App. Div. 555). There can be no consolidation of actions wherein the plaintiff in one is the defendant in the other (Martin v. Prentice, 133 App. Div. 741). 9. The equitable action of interpleader lies where there are conflicting claims made against a stakeholder, who seeks only a judicial deter- mination of the controversy between the claim- ants; this action is still maintainable in this State (Crane v. McDonald, 118 N. Y. 648). Statutory simplification and extension of the equitable remedy have been made. If a per- son, liable to pay at least $50 under or on ac- count of a contract, does not dispute his lia- bility, but the money is claimed adversely by rival claimants, he may bring the statutory ac- tion of interpleader (§ 285); after having served all the claimants with the summons and complaint, he may apply upon notice, and upon proof of the allegations of the complaint and his freedom from collusion, for permission to deposit in court the amount of his debt and stand discharged from further liability (§ 286). Upon the granting of such an application the adverse claimants will be directed to interplead and their rival claims to the sum deposited will be the only issue for determination. It is only where the plaintiff admits his liability that the remedy under § 285 is available (Empire Engi- neering Co. v. Mack, 217 N. Y. 85). Under § 287, after an action upon contract, PBOCEDUBE IN AS ACTION. 145 or for' ejectment or in replevin, has been begun, the defendant before answer may make a mo- tion, upon proof by affidavit that a person not a party demands such debt or property without collusion with him, and upon notice to plaintiff and such person, to substitute the latter as the defendant and discharge him from liability to either on his depositing the money or property or delivering its possession as the court directs ; or if the defendant disputes his liability in whole or in part, his motion will be to add such other claimant as a co-defendant. The remedy is not available if the other claimant is a non- resident and cannot be served personally within the State with the notice of motion (Rosenthal V. United Transp. Co., 196 App. Div. 540; Bul- lowa V. Prov. Life & T. Co., 125 App. Div. 545). It is necessary that the motion papers disclose that the adverse claim has some foundation in fact (Pouch V. Prud. Ins. Co., 204 N. T. 281). Where the substitution of the claimant is ordered the action becomes equitable in char- acter (Greenblat v. Mendelshon, 46 Misc. 554). 10. An action may be dismissed for want of prosecution, should plaintiff after serving one of two or more defendants unreasonably neglect to serve all of them whose presence before the court is necessary for a complete determination of the controversy, or having served all the de- fendants unreasonably neglects to proceed in the action (§§ 180-1). The fact that the de- 10 146 A HANDBOOK OF CIVIL PEACTICE, fendants not served might appear voluntarily, or that the defendants might press the action to a trial, cannot be urged by plaintiff to op- pose the motion. Unreasonable neglect to pro- ceed is established prima facie by showing that later issues have been reached for trial in regular order (Court Rule 156). 11. During the pendency of the action, and even before its commencement or after entry oi final judgment, the occasions are numerous when judicial directions or authorizations, in the form of orders, are necessary and import- ant; application therefore are called motions. "An application for an order is a motion" (§11-3). . • . . Some motions may be made without notice, and are termed ex parte; but notice to the ad- verse party is usually required after he has ap- peared and is not in default (§ 115). If by statute an application may be made to a judge of the court, and no requirement for notice is included, an ex parte application is authorized. Sometimes the efficiency of the relief sought requires that application therefor may be made without notice, as, orders of arrest, attachment of property, etc. Upon all ex parte applications proof is required showing Avhether a prior ap- plication for the same order has been made, and if so, to what court or judge and the deter- mination thereof and what new facts if any are presented upon this subsequent application PROCEDUEE IN AN ACTION. 147 (Court Eule 61). Failure to so state is ground for vacating the order (id.). The statute pre- vents an attorney from seeking from a judge and upon the same papers an order which has previously been refused by another judge (§ 118). In the first judicial district compris- ing New York County, ex parte applications in the supreme court must be made to the justice assigned to hold Special Term, Part II (Special Term, Eule V, First District) ; in the absence of special rules restricting such an ap- plication in the supreme court, any justice in any part of the State may entertain an ex parte motion without regard to the county or judi- cial district wherein the action may be pend- ing. In an action in any court a judge's order mthout notice may be made by a justice of the Supreme Court, or by the county judge of the county where the action is triable or the attor- ney for the applicant resides (§ 130). Motions on notice are heard by the court at a proper term therefor; some exceptions exist by par- ticular statutory provision, as, a motion upon notice to vacate a provisional remedy may be heard by the justice who granted it, if founded only on the plaintiff's proofs, or if new proof is presented, to that justice or any other (§§ 844, 949). {Notice of Motion.) The notice of a motion served upon the adverse party must of course notify him of the time and place of hearing. 148 A HANDBOOK OF CIVIL PRACTICE. the character of the relief sought, and the proofs to be submitted by the moving party. The form therefor may be substantially as fol- lows: {Title of court and action.) Please take notice that on the annexed affi- davits of M. N. and 0. P., verified on the day of ) 19 > the undersigned will move this court, at a Special Term thereof 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 said day, or as soon thereafter as counsel can be heard, for an order {here is set forth the character of order sought), and for such other and further relief as may be just. Dated, Yours, etc., THOMAS FOX, Plaintiff's Attorney, {Office Address). To JOSEPH JONES, Esq., Attorney for Defendant. A party making a motion may specify in the notice one or more kinds of relief in the alter- native or otherwise (§ 117). If the motion is based upon a mistake, omission, defect or irregu- larity, the notice must specify it (Court Rule 62). PROCEDURE IN AN ACTION. 149 {Time required for notice of motion.) At least eight days' notice must be given, except where the respective attorneys have their offices in the same city or village, when five days' notice suffices (Court Eule 60). If reason is shown by affidavit why the motion should be heard within a less time than upon a notice of eight or five days, the court or a judge may grant an order directing the adverse party to show cause upon an earlier day why the relief sought should not be granted. An order to show cause, granted by a judge and operating as a short notice of motion, may be substantially as follows : {Title of court and action.) Upon the annexed affidavits of {specifying accompanying papers), and upon motion of Thomas Fox, attorney for plaintiff, let the defendant show cause at {specify place and time as in notice of motion), why an order should not be made {specify character as in a notice). And sufficient reason therefor being shown, service of this order and aeconipanying papers upon the defendant's attorney on or before the day of ) 19 , (by mail), shall be sufficient notice. Dated, ROBEET JOHNSON, Justice Supreme Court. 150 A HANDBOOK OF CIVIL PRACTICE. The adverse party may make a cross motion on three days' notice, for any relief he may desire, to be heard at the same time (§ 117). {Proofs heard upon motion.) Witnesses are not produced for examination upon the hear- ing of motions, but the proofs submitted are in the form of affidavits, i. e., written statements signed and sworn to. Affiants, just as the wit- nesses who testify, must be those who have personal knowledge, and statements made in , affidavits on information are not accepted by the courts unless proper excuse is shown for the non-production of the affidavit of the one having the knowledge. A statutory require- ment of the presentation of a petition is now satisfied by proof in the form of an affidavit, and vice versa (§ 119). With a notice of motion or order to show cause must be served copies of all the papers which the moving party in- tends to submit to the court upon the argu- ment; if, however, the adverse party has pos- session of any of the papers desired to be submitted they shall be produced by him if notice so to do is served with the motion papers (Court Eule 65). The pleadings are always before the court upon motions {id.). It is cus- tomary for the notice of motion .to refer to and specify the papers upon which the moving party seeks to obtain the desired relief. When a notice of only five days is given, or an order to show cause returnable in a less PKOCEDURE IN AN ACTION. 151 time is obtained, the opposing party may pre- sent upon the argument of the motion such proofs as he desires to submit. If the moving party desires to gain knowledge in advance of the argument of the character of the opposing •proof, he may give eight days' notice of the motion, and the adverse party must at least one day before the day of argument serve copies of the affidavits and papers he intends to use in opposition (§ 117). Or, if he gives ten days' notice, and inserts such a requirement in his notice of motion, the moAang party can obtain copies of the affidavits of the adverse party five days before the day of argument and may there- after serve affidavits in reply at least two days before the hearing (Court Eule 64). {Where motions to he noticed for hearing.) Motions upon notice must be made to the court (§ 115), and if in the Supreme Court must be noticed, for hearing at a term held within the judicial district or in a county in another dis- trict adjoining the county in which the action is triable. Except in the first and eighth districts the motion must be made within the district, and no. motion may be made in the first district in an action triable elsewhere (Court Rule 63). (Hearing and determination of motions.) Motions are noticed for and heard' at special terms appointed therefor; no motion can be heard at a trial term, unless affecting a cause 152 A HANDBOOK OF CIVIL PRACTICE. on the calendar of the term (Court Eule 63). The motion is argued before and decided by the judge assigned to hold the special term, except by consent of the parties any judge may entertain it. If the moving party defaults, the motion must be denied; if a motion is not opposed, the moving party is entitled to the order sought unless the court otherwise directs (Court Rule 66). The determination of the motion is made in the form of an order (§ 127) ; this may be in the shape of a mere memoran- dum, containing a recital of the papers used thereon and the determination made, indorsed on or appended to the moving papers and signed by the court or judge (Court Rule 70). This is called the short form order, but the practice still generally obtains especially in court orders involving detailed directions to use the more extended form, substantially as fol- lows: At a Special Term of the Supreme Court held in and for the County of Erie, at the City and County Hall in the City of Buffalo in said county, on the day of , 19 . Present: Hon. Robert Johnson, Justice presiding. Title of Action. A motion having been made by the plaintiff herein for an order (state its character), and said motion having duly come on to be heard, PROCEDURE IN AW ACTION, 153 now ,dn reading and filing the notice of motion, dated the day of , 19 , and the affidavits of M. N. and 0. P., verified the day of , 19 , annexed thereto, in sup- port of said motion, and the affidavit of Y. Z., verified the day of , 19„ in opposi- tion thereto, and after hearing Thomas Fox, attorney for the plaintiff, for the motion, and Joseph Jones, attorney for defendant, opposed, and due deliberation having been had, it is, on motion of Joseph Jones, attorney for defend- ant, Ordered, that said motion be and the same is hereby in all respects denied, with ten dollars costs. Enter. R. J., J. S. C. The recitals in the order will of course vary according to the facts. If either party defaults, that fact should be recited, and if default is by the adverse party the proof of due service of the motion papers is also recited. The subject of motions and orders is ex- tensively trea,ted in Abbott's Practice and Forms, with many forms and authorities, to which the reader is referred. 12. Service of papers in the action (after tl^e summons has been served or the defendant has appeared) may be made in various ways. After appearance by attorney, papers must be served 154 A HANDBOOK OF CIVIL PRACTICE. on the attorney, and service on the party himself is not proper unless it is a paper to bring him into contempt of court (§ 163). The method of service of a paper in the action upon the attorney is regulated by Court Eule 20, and may be (a) by personal delivery to him, or (b) maUing in a post-paid wrapper addressed to him, or (c) at his office by leaving it with the one in charge, or if no person is in charge by leaving it in a conspicuous place therein, or (d) if his office is not open, by enclosing it in a sealed wrapper directed to him and depositing it in his office letter-drop or -box accessible from without his office, or leaving it at his residence with some suitable person, or (e) if the attorney's office is not open and there is no office letter-box or -drop and no suitable person at his residence, by leaving the paper wtih the court clerk. Service by mail is complete at the time of the due mailing even though the paper is not re- ceived by the attorney ( Schwartz v. Livingston, 18 N. Y. Supp. 879; Gates v. Guthrie, 119 N. Y. 420). If not correctly addressed, valid service is not shown (Seifert v. Caverly, 63 Hun, 604). If postage is not fully prepaid the attorney may refuse to receive it and pay the postage (Kuh V. Goldman, 119 App. Div. 148), but if he pays the deficiency and receives the paper the ser- vice is good (Appeal Printing Co. v. Sherman, 99 App. Div. 533). Directions on the wrapper for a return to the attorney sending it within a specified number of days if not delivered, or PKOCEDURB IN. AN ACTION. 155 registering the package with, directions for delivery to the attorney only, are improper, and may invalidate the service unless the paper was in fact delivered, in which case these matters become immaterial (Sears v. Ten- hagen, 50 Misc. 275 ; Gaffney v. Bigelow, 2 Abb. N. C. 311). When service is made by mail, three days' additional must be added to the time required, and the adverse party's time within which to do an act after notice or ser- vice is also extended a similar period of three days (§ 164) ; for example, a notice of motion which could be served eight days before the motion day upon an attorney must be- served eleven days before the motion day if the notice is served by mail, and plaintiff's attorney served with defendant's answer by mail has twenty-three days within which to amend in- stead of the usual twenty days, calculated from the day of the mailing of the answer and not the day of its receipt (Matter of Werner, 51 Misc. 82). Service at an attorney's office by leaving the paper in a conspicuous place is proper only when the office is found open with no one in charge'. Procuring the door to be unlocked would not result in effective service (Vail v. Lane, 67 Barb. 281), and thrusting under the door or throwing through an open transom is not good service (Eogers v. Eockwood, 13 N. Y. Supp. 939; Claflin v. Dubois, 13 Civ. Pro. 234). A paper deposited in an office letter-box, but 156 A HANDBOOK OF CIVIL PRACTICE. not inclosed or addressed, is not properly served (Fitzgerald v. Dakin, 101 App. Div. 261). An. irregularity in the service of a paper is waived if the paper is received and retained by the one upon whom the service is attempted to be made; the paper should be promptly re- turned, indorsed with the reason for its return (Rogers v. Eockwood, 13 N. Y. Supp. 939). Service of a paper upon an attorney is com- monly admitted by him upon an accompanying copy. An admission . of service does not con- cede that the service was timely (2 Hill, 362), but an admission of "due service" concedes it to be' both timely and proper (12 Wend. 227). The signature of the attorney on the admission proves itself as the court takes judicial notice of the signatures of its attorneys (2 Hill, 360). An admission of service by means of a rubber stamp will not suffice, but proof of service must be submitted when necessary to establish ser- vice. 13. Either party has the right of bringing the case to trial, by serving a notice upon the adverse party to the effect that the action will be brought to trial at a specified term of the court commencing on a specified day, or as soon thereafter as counsel can be heard; such notice of trial must be personally served upon the attorney for the adverse party at least fourteen days before the term commences (Court Rule PROCEDURE IN AN ACTION. 157 150), or sixteen days prior thereto if the notice is served by mail (§ 164). At least twelve days before the term com- mences a memorandum must be filed by a party serving a notice of trial with the clerk of the court showing the title of the action, the names of the attorneys for the respective parties, the time when the last pleading was served, and whether the issue is triable by a jury or by the court without a jury, and the particular nature and object of the action; such memorandum is termed the "note of issue" (Court Rule 151). The clerk enters the cases on the calendar ac- cording to the time when the last pleading was served (id.). Actions by or against the State or a state officer or by or against the City of New York, may be given preference over other actions upon its or his application; statutory prefer- ences are also allowed in various actions in- cluding those in which a representative of a decedent or an infant is the sole party plaintiff or defendant, actions relating to the probate of wills and appeals from the determinations of the Surrogate respecting the administration of estates, actions for partition, for libel or slander, for divorce where temporary alimony has been granted, any action wherein the de- fendant has been arrested and is imprisoned, or where his property has been attached, and other actions entitled to preference under the 158 A HANDBOOK OF CIVIL PKACTICE. general rules of practice or by special order of the court in particular cases (§ 138). Such preference must be claimed by the party entitled to assert it and the procedure is gener- ally regulated by local calendar rules. In order t-o obtain a preference in the counties of New York, Kings, Queens, Bronx and Erie, and the seventh judicial district, a notice that applica- tion therefor will be made at a time specified in the notice (at present, the first day of the term) must be served with the notice of trial (Davis V. Freedman, 196 App. Div. 926; § 141), and if the right to the preference does not appear from the pleadings, the notice must be accompanied by an affidavit showing the neces- sary additional facts (§ 141). The direction in this statute that a definite trial date be set is unconstitutional (Reglander v. Star Co., 98 App. Div. 101, aff'd 181 N. Y. 531) ; the prefer- ence is over the other issues noticed for the same term (Morse v. Press Pub. Co., 71 App. Div. 351), unless the court in the exercise of its discretion directs the trial on a day named. VI. The Trial. 1. Mode of trial. 2. Provisions relating to the evidence. 1. The mode of trial is determined by the character of the action, as shown by the com- PEOCEDUEE IN AN ACTION. 159 plaint. But a counterclaim upon which affirma- tive judgment is demanded must be tried as though it arose in an action brought by the defendant (§ 424). All cases are triable at a term held by a single judge, either with or without a jury (§432). The issues of fact in the following actions are triable by a jury (§ 425) : (1) An action in which the complaint de- mands judgment for a sum of money only; (2) Ejectment; (3) Dower; (4) Waste; (5) Nuisance; (6) To recover a chattel (replevin); (7) To annul a corporation (Gren. Corp. Law, § 133). If properly demanded, a jury trial of some of the issues is a matter of right in actions for partition (§ 1023), annulment of marriage ex- cept when founded on physical incapacity (§ 1142), divorce (§ 1149). In such actions the issues to be tried by the jury are stated in a court order made upon the application of either party (§ 429). The finding of the jury unless set aside and a new trial directed before another jury is conclusive upon the issues so submitted (id.); if any issues remain they are tried by the court (§ 430). The court may, in its discretion, in any case brought before it for trial, wherein a jury trial cannot be had as of right under constitution or statute, direct that certain questions of fact in issue be tried by a jury (§ 430). The order 160 A HANDBOOK OF CIVIL PRACTICE. therefor is all that is necessary; the findings of the jury in such case are merely advisory, for the determination is upon the court itself (Acker v. Leland, 109 N. Y. 5). A motion to settle such issues for trial by jury must be made within twenty days after issue joined (Court Rule 157). A trial by jury may be waived by a written waiver, or by an oral consent in open court, or by moving the trial of the action at a term without a jury, or if the adverse party so moves it, by failing to claim a jury trial before the production of any evidence, or it may be waived by failing to appear at the trial (§ 426). Although the parties may desire to waive the jury, unless the action is upon contract the presiding judge may decline to try the case and thereby the waiver is annulled (§ 428) ; in practice the judge will usually decline to permit the waiver in actions for personal torts, and plaintiffs usually prefer the presence of a jury in such cases. All actions not triable by jury must be tried hy the court unless a reference or jury trial is directed (§427). In the Supreme Court an issue of fact triable by a jury must be tried at a trial term ; if triable by the court without a jury it may be tried at a trial or special term (Court Kule 158). A reference to hear and determine the issues by the referee of their own selection must be PROCEDURE IN AN ACTION. 161 ordered upon consent of all parties, except in matrimonial actions, or where a defendant is an infant, or where a corporation is sought to be dissolved (§§ 464-5), but in these excepted cases the court may, in its discretion, grant a reference upon consent, but must designate the referee (§ 465). The court may of its own motion direct a reference where the trial will require examination of a long account (too long for jurymen to keep the evidence therein in mind, Spence v. Simis, 137 N. Y. 616), and will not require the decision of diffi- cult legal questions (§ 466). A referee has the general powers of the court in conducting the reference and trying the issues referred to him for determination (§ 469). No person may be appointed a referee to whom all the parties object, save in a matrimonial action (Court Eule 172). He must take and tile an oath, before acting, that he will faithfully, honestly and impartially discharge his trust (§ 126). The proper limitations of this volume do not permit an extended consideration of procedure during the trial. If the action is to be tried with a jury, the selection of the jury is essential to complete the trial tribunal; no motions other than to proceed with or adjourn the trial may be enter- tained by the presiding judge until the jury has been accepted. The clerk in open court draws from the ballot box the names of persons who have lieen summoned upon the jury panel, 11 162 A HANDBOOK OF CIVIL PRACTICE. and the first twelve drawn and appearing take their places in the jury box. The trial counsel in the ordinary civil action interrogate the twelve men principally regarding the acquaint- ance of any of them with any of the litigants or their attorneys. An objection to the qualifica- tions of a juror is available only upon a chal- lenge; if to the panel, or array, it raises only a question whether the panel was regularly drawn ; if a juryman is shown to be an employe of a party, or a stockholder of .a corporation party, this is good ground for a challenge for favor (§ 452). Relationship by consanguinity or affinity to a party is a disqualification, available to the parties not related within six months after verdict (§ 455). Each party may peremptorily challenge six of the persons drawn as proposed jurymen (§ 451), which means that each must be excused upon the party's mere request. The party bringing the case on for trialr must hand the judge a copy of the summons and pleadings; on each pleading must be plainly designated the parts thereof claimed to be admitted or controverted by the succeeding pleading (Court Rule 160). The party having the affirmative of the issue, i.e., the burden of establishing facts in order to avoid an unfavorable direction from the court if no evidence is produced, has the right ■ to O'pen and close the case. This would necessarily be the plaintiff, if defendant has denied any PROCEDURE IN AN ACTION. 163 fact material to plaintiff's recovery (Murray v. N. Y. Life Ins. Co., 85 N. Y. 236). Unless otherwise directed, the other party must also open his case before any evidence is intro- duced (Court Eule 161), so that the jury becomes acquainted with the contentions of both sides before hearing the witnesses. The proper scope of an opening is limited to an ex- planation to the jury of what the attorney expects to establish by his evidence by way of a cause of action or defense. Defendant's attorney may, if he desires, request the stenographer to take the opening by plaintiff's attorney, and may base thereon a motion to dis- miss the action, on the theory that admitting plaintiff will establish all the facts his attorney has claimed and his complaint alleges no com- plete right of recovery will be shown (Hoffman House V. Foote, 172 N. Y. 350). Prior to the opening a motion will lie for a dismissal of the complaint on the ground of insufficiency, or on the ground that the court has not jurisdiction; such objections are not waived by failure to raise the same before trial (§ 279) ; similarly, a motion may be made against a counterclaim (id.), or that an affiiyuative defense is insuffi- cient in law upon its face {id.). But these objections, which can be raised by motion before trial, are not favored, and the trial judge will be willing to grant an amendment to the de- fective pleading forthwith to meet and cure the objection raised, if within Ms power so to do. 164 A HANDBOOK OF CIVIL PRACTICE. The party having the right of opening is the first to introduce evidence. "Assuming this party to be the plaintiff, he is required to introduce all the evidence in support of his affirmative case Avhic-h he intends to offer before he indicates that he is through with his evidence, which he does by stating that he rests. While the order of proof is within the control of the trial judge, and in a proper case a party should be allowed to subsequently cure an oversight or omission in his evidence, this rule is well settled and can- not be deliberately violated. Common law rules of evidence require the production of each witness, for examination orally and with oppor- tunity for cross examination; statutory excep- tions, permitting the taking and reading of depositions, and the presentation of affidavits in certain cases instead of producing the wit- nesses, have already been referred to. The admission or exclusion of evidence pre- sents a question of law for the determination of the trial judge. When a question is asked, improper in form, or calling for incompetent evidence, or calling for testimony from a wit- ness upon a subject as to which he is incom- petent, or calling for matters irrelevant or im- material to or not within the issues of the case, the opposing attorney by proper objection im- mediately taken secures a direction from the trial judge that the question shall not be answered. The office of an objection is to stop an answer (Platner v. Platner, 78 N. Y. 90). PROCEDUKE IN AN ACTION. 165 If the witness should answer so promptly as to give no opportunity for the interposing of an objection, or should the answer include a matter outside of the scope of the question or be given in improper form, a motion to strike out will lie, the ground therefor and the par- ticular portion of the objectionable answer being stated [id.). In order to secure con- sideration by the appellate tribunal of a ruling upon such an objection or motion, it is essen- tial that the trial judge shall have been cor- rectly advised of the grounds now urged on appeal; an objection which states no ground, and the constantly used objection that the evi- dence is "incompetent, irrelevant and im- material" are usually wholly unavailable on appeal, always so where the real ground was one which could have been obviated by the adversary if specifically stated or where it is plain the trial judge was not advised of the ground urged on the appeal {e.g., Turner v. City of Newburgh, 109 N. Y. 301; Stouter v. Man. Ry. Co., 127 id. 661). It is obvious that if a party consents to a ruling of a judge made during the trial he can- ■not subsequently complain of it before an appellate court. The saying that "silence means consent" is of constant application against an appellant, Avho must therefore show affirmatively that he did not consent. The settled practice is to say "I except," or words of equivalent import. Such an exception so 166 A HANDBOOK OF CIVIL PEACTICB. taken is noted in the record of the trial, and becomes available on the subsequent appeal (§446). When a writing is desired to be put in evi- dence, it is offered for such purpose, and maj^ be met by objection based upon insufficient proof of genuineness, incompetency, etc. If received, it is given an exhibit number (as Plaintiff's Exhibit 1), by which it may subse- quently be identified; it may be read to the jury, and in the court's discretion taken into the jury room. If excluded on objection, or if its genuineness is being established or admitted at a time counsel does not wish to introduce it in evidence, it is marked "Exhibit for identification. ' ' After the direct examination of a witness, he may be cross examined by the opposing attor- ney. The cross-examination, within the limit of strict right, may cover the matters upon which the witness testified on direct examina- tion, and (within reasonable bounds) extend to extrinsic matters intended to test the memory and accuracy of the witness. If cross examination is extended beyond these matters it is usually said in legal parlance that thereby the cross- examining counsel makes the witness his own witness, which means that he thereby subjects himself to the same restrictions as to that wit- ness' character and credibility as would apply if he had himself called the witness; briefly, these restrictions are, that the witness' general PROCEDURE IN AN ACTION. 167 good character for truth and veracity may not be thereafter assailed, or his credibility im- paired by proof of prior contradictory state- ments (Becker v. Koch, 104 N. Y. 394). But an attorney calling a witness, or making the adversary's witness his own, is not prevented from showing that a material fact is not as stated by such witness (id.). After the con- clusion of the cross-examination, an opportun- ity is given for a re-direct examination of the witness, with further opportunity for a re-cross- examination on new facts testified to. Having in -this way presented and secured the testimony of all the witnesses on his affirma- tive case, plaintiff announces that he rests. A motion will now lie by defendant's counsel for a dismissal of the complaint, also called a non- suit, on the ground of some fatal defect in plaintiff's proof. For the purposes of this motion all of the evidence presented by the plaintiff's witnesses is assumed to be true, and all inferences drawn in his favor (McNally v. Phoenix Ins. Co., 137 N. Y. 389). Defendant's attorney is required to specifically point out the defects he claims (Wilcox Silver Plate Co. V. Green, 72 N. Y. 17), and if plaintiff's attor- ney may obviate any claimed defect by further proof then available he will apply for permis- sion to reopen his case and introduce it. The! granting of this motion to dismiss at this stage of the trial was not formerly a bar to another action by plaintiff (Lildenthal v. German Life 168 A HANDBOOK OF CIVIL PRACTICE. Ins. Co., 174 N. Y. 76), but is now made a bai' to a new action for the same cause unless the court dismisses Avithout prejudice (§ 482). An exception to a denial of this motion will be waived if defendant goes on and introduces proof, the reason being that subsequent testi- mony may be received which will cure a defect A\'hich existed Avhen the motion was made; it is therefore necessary for defendant's attorney to renew the motion at the close of the entire ease (Hopkins v. Clark, 158 N. Y. 299), and whether an error is then committed upon denial of the motion depends upon all the testimony taken (AVagner v. Grimm, 169 N. Y. 421). If plaintiff's attorney confronts a situation where a dismissal is inevitable, unless he can procure an amendment of his complaint by sub- sequent application at special term, or unless he can secure opportunity to submit evidence not at the time available, he will seek an ad- journment, and for that purpose he asks the judge to withdraw a juror. In a proper ease, e.g., where counsel has been surprised and is excus- ably unprepared, the application should be granted on condition that plaintiff pay the trial costs and disbursements of defendant (Kaw- son V. Silo, 105 App. Div. 278; Pirrung v. Supreme Council, 104 id. 571). If forced into a situation where it is best for him to do so, plaintiff may submit to a voluntary nonsuit at any time before the jury retires to consider the verdict (§457). PROCEDURE IN AN ACTION. 169 When defendant proceeds with his case he is under the same obligation to present all his evidence in support of it before he rests. There- after plaintiff has an opportunity in rebuttal to meet the affirmative or new matters which defendant's evidence has established (Marshall V. Davis, 78 N. Y. 414). Evidence not strictly in rebuttal may be allowed over objection, for the trial judge controls the order of proof; but on the other hand his exclusipn of such evi- dence, when offered during a party's rebuttal, would not be available on appeal notwithstaiid- ing its materiality, and therefore trial counsel are careful to obey the rule as above stated re- quiring a party to complete his affirmative case before he rests. At the close of the entire testi- mony either party may move for the direction of a verdict in his favor. The jury's function is to determine conflicts of evidence; if none exist, the jury usually would have nothing to do (Am. Trust Co. v. Manley, 195 App. Div. 811) ; but the liquidation of damages is for the jury, and" generally, however, the credibility of a party or an interested witness, by whose un- corroborated testimony material facts have been shoAvn, is to be left to the jury. Should the trial judge believe that the proof of plain- tiff's cause of action, or the defendant's affirma- tive defense, has not been contradicted upon any material point, and no question of credi- bility or liquidation of the damages is pre- sented, a proper case is presented for a direc- 170 A HANDBOOK OF CIVIL PKACTICE. tion of a verdict (See Kraus v. Birnbaum, 200 N. Y. 130). By § 457a of the Civil Practice Act it is provided that the judge may direct a verdict when he would set aside a contrary verdict as against the weight of the evidence; in McDonald v. Met. St. Ey. Co., 167 N. Y. 66, the Court of Appeals has held that the trial court could not properly direct a verdict under such circumstances. If the new statute is upheld in its application to all common law causes of action and defenses, it will largely extend the functions and powers of the trial judge. When an attorney moves for the direction of a verdict he necessarily has taken the position that there is no question for the jury to pass on in the case ; should the attorneys for both sides make these motions, this is held to place them in the position of having thereby waived a jury; and consequently the judge's determination, though in form the direction of a verdict, has the effect of a decision by the judge on the facts (Sigua Iron Co. v. Brown, 171 N. Y. 488). A similar result follows from defendant moving for a nonsuit and plaintiff moving for a ver- dict (Trimble v. N. Y. Central E. Co., 162 N. Y. 84). But either party may, after the trial judge has indicated his intended disposition but before the verdict has been rendered, withdraw his motion as matter of right (Oppenheim v. Eoberts, 175 App. Div. 424), and ask to go to PKOCEDUEE IN AN ACTION. 171 the jury (Brown Paint Co. v. Reinhardt, 210 N. Y. 162). Before the jury retires to consider a case left to them to decide, the respective counsel sum up, and the judge delivers his charge. By means of the charge the jury is instructed upon the law applicable to the case according to the way they may resolve the conflicts in the evi- dence. While a review of the evidence is proper and usual, indication of the judge's opinion thereon is improper (Hoffman v. N. Y. Central E. Co., 87 N. Y. 25). Either counsel may take exception to a proposition of law as stated by the judge; the exception cannot be taken until the charge is finished, and may be taken after the jury retires and before verdict rendered (§ 446). Such exception should be sufficiently specific to indicate the particular proposition (Adams v. Irving Nat. Bank, 116 N. Y. 606). Counsel may also submit propositions of law applicable to the case, and request' that they be charged ; refusal may be error, if they were not substantially covered by the judge in his charge (Morehouse v. Yeager, 71 N. Y. 594). The decision of a jury takes the form of a verdict, which may be general or special ; by a general verdict the jury pronounces, generally, in favor of one party, while by a special verdict the jury finds the facts only, leaving the court to determine which party is entitled to judg- ment thereupon (§ 458). Where the jury finds 172 A HANDBOOK OF CIVIL PKACTICE. a general verdict, the court may instruct it to make special findings on questions of fact ; if a special finding is inconsistent with a general verdict the former controls the latter and the court must render judgment accordingly (§ 459). The clerk enters the verdict in his minutes and must enter a judgment in con- formity with a general verdict unless the court otherwise directs (§ 495). The presiding judge may at the same time, and on his minutes {i.e., the stenographer's record) entertain a motion to set aside the verdict, and may order the verdict set aside if, in his opinion, it is exces- sive, or insufficient, or contrary to the evidence or the law (§ 549) ; this motion is commonly made immediately after the verdict is reported, and decided upon the judge's recollection of the evidence. The presence of plaintiff is not necessary when the jury is about to deliver the verdict (§ 462). If the jury cannot agree after being kept together for such time as the judge deems reasonable, they may be discharged and a new trial directed (§ 463). The decision of the court without a jury is made in writing, signed by the judge and filed with the clerk (§ 442). It must separately state the facts which the judge has found to be established and the legal conclusions which he drawr; therefrom. Either party may submit requests to find to the trial court, also framed in the form of distinct propositions of law or fact separately stated and numbered; the trial PROCEDURE IN AN ACTION. 173 court must indicate on the margin the disposi- tion of each proposed request, and an exception may be taken to a refusal to find as requested (§ 439). The decision also directs the judg- ment to be entered thereon, and passes upon the question of costs when discretionary (§ 440), and judgment is so entered by the clerk (Court Eule 198). If the court directs a nonsuit no findings are necessary in the decision (§ 441) ; this is because all the facts to which plaintiff's evidence is directed must be assumed to be true and therefore no dispute of fact is presented on which a finding can be made. A require- ment exists that the court's decision must be filed with the clerk within twenty days after the term ends at which the case was tried (§ 442) ; it is of little practical utility, as a failure to file the decision merely permits the special term on motion to order a new trial or award an extension of time within which the decision may be filed (id.), and neither trial counsel for obvious reasons will desire to coerce the trial judge into more speedy action. It will be recalled that upon a jury trial ex- ceptions to evidence are taken, for the purpose of preserving the right of review on appeal, during the trial and by entry in the stenog- rapher's minutes, and exceptions to proposi- tions charged by the trial judge are taken by similar entry thereof in the minutes before the jury has given its verdict (§ 446). Similarly on a trial before a court without a jury, or 174 A HANDBOOK OF CIVIL PRACTICE. before a referee, exceptions to rulings during the trial are taken at the time; but exceptions to findings of fact or conclusions of law in the court's decision, or the referee's report, and exceptions to refusalsHrSnnd as requested, are taken by filing a statement of them and serving a copy thereof within ten days after the party has been served with a copy of the decision or report (§ 445). The determination of a referee is called his "report," and when he has been appointed to hear and determine the issues, it is similar in form to the decision of the court without a jury (§ 470). Such report must be filed or delivered to the attorney for one of the parties within sixty days after the matter has been submitted to him, or either party may elect to end the reference, and the referee is not entitled to any fees (§ 470). Bequests to find may be submitted to him (§ 471). Judgment is entered upon the report by the clerk without application to the court, except in matrimonial actions (Court Eule 198; § 1174). 2. Some important provisions relating to evi- dence are to be found in the Practice Act, and may be best referred to here. They chiefly comprise changes in certain common law rules of evidence which otherwise would be applied by the courts. Testimony in equity cases is taken in like manner as in cases at law (Const., Art. VI, PKOCEDURfi IN AN ACTION. 175 Sec. 3). The early method of presenting evi- dence in a court of chancery was by deposition alone. A witness is competent— i.e., must be per- mitted to give his testimony — notwithstanding • he is a party, or the wife or husband of a party, or otherwise interested in the event of the action (§ 346). Such interest may, however, be shown by the adverse party to affect the weight of his testimony. But as to certain particular matters, certain witnesses cannot testify^ — i.e., they are under a limited and particular disability: 1. When the action is by or against the repre- sentative of a decedent or a lunatic, or a person deriving his title in some way through such de- cedent or lunatic, a witness, who is a party to the action or has an interest in its event, or is the predecessor in title to a party or interested persop, cannot be examined in his own behalf, or in behalf of the party or person succeeding to his title, regarding a personal transaction or communication with the decedent or the lunatic; unless the evidence of the decedent or lunatic is first introduced, concerning the same transac- tion or communication (§ 347). The mouth of the real adverse party being closed by death or insanity, the mouth of the capable party to the transaction is thus closed by statute as to any- thing of ^ personal nature which has transpired between them. The test of a person's interest 176 A HANDBOOK OF CIVIL PRACTICE. ill the event of the action is whether he will gain or lose as the direct result of the judgment, or whether it will be evidence for or against him in some other action (Wallace v. Straus, 113 N. Y. 238). The words of exclusion, viz., concerning any transaction or communication, embrace, every variety of affairs and every method by which information can be imparted (Holcomb V. Holcomb, 95 N. Y. 316). 2. A husband or a wife (a) cannot testify in his or her behalf in an action for absolute di- vorce as to any matters whatever, except to prove the marriage and disprove the allegation of adultery, or to meet an affirmative defense of condonation, consent or other ground men- tioned in § 1153, or (b) in any action cannot be compelled, or without the consent of the other, be permitted to disclose a confidential communi- cation made by one to the other during mar- riage, or (c) in an action for criminal conver- sation by the husband, the wife is not a compe- tent witness for the husband for any purpose (§ 349). 3. A clergyman is not allowed to disclose a confession made to him in the course of dis- cipline- under the rules or practice of his reli- gious body (§ 351). 4. A physician or surgeon, or a professional or registered nurse, is not allowed to disclose any information which he acquired in profes- sional attendance upon a patient, which w^as necessary to enable him to act (§ 352). PROCEDURE IN AN ACTION. 177 5. An attorney, or his clerk, stenographer or employee, is not allowed to disclose a communi- cation made to him by a client, or his advice given thereon, in the course of the attorney's professional employment (§ 353). These last three provisions establish rights for the benefit only of the person confessing, the client, or the patient, and must be applied unless expressly waived by them at the trial in open court ; the attorney for a party may, how- ever, stipulat e for such waiver prior Jo the trial, but a waiver signed by a party prior to the trial is insufficient C(§ 354). Where the patient is dead, his personal representative may permit the physician or surgeon to disclose informa- tion as to the mental or physical condition of the patient, except confidential communications and facts which would tend to disgrace the memory of the patient (id.). On a contest over the validity of a will, any party interested for or against the will may waive the physi- cian's privilege, with the same limitations as to confidential communications and facts tending to disgrace the memory of the patient (id.). If the attorney is a subscribing witness to a client's will, he is not disqualified from testifying as to , its preparation and execution (id.). '.''^ "^.^^^ The fact that a witness has been convicted of a crime does not render him incompetent, but the conviction may be proven for the purpose of affecting the weight of his testimony; he must answer any question relevant to that in- 12 178 A HANDBOOK OF CIVEL, PRACTICE. quiry, and the cross-examiner is not bound by the answer, but the conviction may be proved by the record of it (§ 350). A witness is not excused from answering a question on the ground that the answer may tend to establish the fact that he owes a debt or may subject him to a civil suit ; but he is not required to give an answer which will tend to accuse himself of a crime, or expose him to a penalty or forfeiture (§ 355). The evidence of a party to the action taken at the instance of the adverse party orally or by deposition may be rebutted by other evidence (§343). A seal upon an instrument, the provisions of which have been fully executed, constitutes con- clusive, evidence of a consideration; but upon an executory instrument, it is only presumptive evidence that there was a consideration, and such presumption may be rebutted (§ 342). A person possessed of personal property, or upon whose life an interest in real property de- pends, is presumed to be dead if he absents himself for seven years, unless it is affirma- tively proven he was alive within that time (§ 341). After a fund arising out of the sale in partition of real property, and payable to un- known heirs, has been in the public custody for twenty-five years, a presumption arises that there were no such heirs living at the time of the sale (§ 1065). In an action for negligently causing death. PROCEDURE IN AN ACTION. 179 the contributory negligence of the deceased must be pleaded and proven by the defendant (§ 265). Subscribing witnesses are not necessarily called to prove the genuineness of a writing, except where (as in the case of a last will) the validity of the instrument depends upon there having been such witness (§ 331). The genuine- ness of a disputed writing may be established or disproved by means of comparison with other writings shown to be genuine and ad- mitted as standards of comparison (§ 332). VII. Costs. Certain sums fixed by statute are awarded or may be awarded to the successful party and included in the amount of the judgment. They constitute the costs and disbursements of the action. Plaintiflf is entitled to full costs as of right when in a common law action for money only he secures final judgment in his favor for the sum of fifty dollars or over (§ 1473; but cer- tain exceptions have been recently made, under which a plaintiff, who brings his action in a higher court than is necessary in view of the amount he recovers, is denied costs (§ 1474). In an action for assault, battery, false, im- prisonment, libel, slander, criminal conversa- tion, seduction or malicious prosecution, if plaintiff recovers less than fifty dollars, or in 180 A HANDBOOK OF CIVIL PRACTICE. replevin, if the value of the chattels with the damages awarded is less than fifty dollars, plaintiff is entitled to an amount of costs equal only to the amount of the damages awarded (§§ 1471, 1473) ; for example, if in an action for libel the jury awards six cents damages plaintiff may only have six cents costs. In other common law actions,, if plaintiff re- covers less than fifty dollars, the defendant re- covers costs against the plaintiff (§ 1475). The costs in actions of an equitable character are in the discretion of the court (§ 1477). The amount of costs which either party may tax in a case where he can have costs, for the usual proceedings in an action up to judgment are: Plaintiff for proceedings before notice of trial, fifteen dollars, or twenty-five dollars, ac- cording to the character of the action; defend- ant, ten dollars before notice of trial; either party, fifteen dollars after notice of trial and before trial; thirty dollars for trial of an issue of fact (§ 1504). Various other sums are al- lowed for the taking of other proceedings in the action. In actions of foreclosure and par- tition, and in any action wherein an attachment has been issued, the plaintiff is allowed certain extra amounts by statute, based on the amount recovered or the value of the property par- titioned or attached, and not exceeding sixty dollars in all (§ 1512). The trial court may make additional allow- PROCEDURE IN AN ACTION. 181 ances in certain cases, including an allowance not exceeding two and one-half per cent, in an action to foreclose a mortgage, and an allow- ance not exceeding five per cent, upon the sum recovered or claimed, where a defense has been interposed and the case is difficult and extra- ordinary (§ 1513). An application for an addi- tional allowance can only be made to the court before which the trial is had or the judgment rendered, and in all cases must be made before final costs are adjusted (Court Rule 200). A successful party may include in his bill of costs certain necessary disbursements, past or prospective, including fees of witnesses, referees, expenses of taking depositions, dis- bursements for publication of summons and notices, for procuring certified copies of neces- sary papers, for printing papers when required by rule of court, for sheriff's fees upon one execution, etc. (§ 1518). Costs are taxed by the clerk upon or without notice to the adverse party; if taxed without notice a re-taxation must be immediately had upon notice (§§ 1534-5). The provision allow- ing taxation of costs without notice permits a party to immediately enter his judgment with- out waiting for the two or five days' notice of taxation to elapse (§ 1534). Items of disburse- ments must be proved by affidavit in order to entitle them to be allowed by the clerk (§ 1538). The clerk's taxation may be reviewed by the court upon motion for a new taxation ; the judge 182 A HANDBOOK OF CIVIL PRACTICE. may review the clerk's action upon any item in the bill of costs to which objection was made before the clerk (§ 1536). VIII. Judgment and its Enforcement. 1. Entering judgment. 2. Lien of a judgment. 3. Enforcement hy execution. 4. Supplementary proceedings. The entry of the judgment is usually the ministerial act of the clerk upon the applica- tion of the successful party. This "entry" consists of the signing and filing of the judg- ment by the clerk (Court Rule 201). All judg- ments are recorded by the clerk in the "judg- ment book" {id.). If the summons was personally served within the State, and the defendant has defaulted in answering, the clerk must enter judgment on default on the plaintiff's application in an ac- tion to recover a sum of money only (a) on a breach of contract to pay, absolutely or on con- tingency, a sum of money fixed by the contract or capable of being ascertained by computa- tion, or (b) on an express or implied contract to pay money received or disbursed, or the value of property received, or services ren- dered to defendant or a third person for his use (§ 485) ; but with the summons must have been served either a copy of the complaint or a no- tice stating that in case of default final judg- PEOCEDUBK IN AN ACTION. 183 ment will be taken for a specified amount (§ 486). The plaintiff, on his application for such judgment, must file with the clerk the sum- mons, with proof by affidavit of its service and of the defendant's default in appearing or pleading, and a verified complaint, whereupon the clerk enters judgment for the amount de- manded in the complaint or at the plaintiff's option for a smaller sum (which latter provi- sion will apply when defendant has made par- tial payment after service of complaint) ; or, if the complaint is not verified, the clerk must assess the amount due by examination of the plaintiff, or by other competent proof, and enter judgment for such amount (§§ 486-7). The following is a form for the judgment signed and entered by the clerk on a default : {Title of Court and action). The summons and complaint in this action having been duly personally served within this State on X. Y., the defendant herein, on the .... day of , 19 . . , and the time for the defendant to appear or answer herein hav- ing fully expired, and said defendant not hav- ing appeared or answered and his time so to do having heretofore fully expired; Now, on motion of Thomas Fox, attorney for plaintiff, it is Adjudged, that the plaintiff, A. B., recover of the defendant, X. Y., the sum of dollars, the amount claimed with interest. 184 A HANDBOOK OF CIVIL PRACTICE. together with dollars costs as taxed, amounting in all to the sum of dollars. Judgment this .... day of ,19 (Signed) M. N., Clerk. In entering judgment by default the juris- dictional facts must be stated therein (Court Rule 185). The recitals are therefore impor- tant, and should reveal the proceedings had which lead up to and authorize the entering of the judgment. In all other species of actions, and in all cases where substituted service of the summons has been had, judgment can be only entered upon application to the court or a judge thereof (§ 489). Plaintit¥ must present proof showing that he is entitled to judgment upon default. If defendant has appeared, but has made de- fault in pleading, he must be given five days' notice of the time and place of application for judgment (Court Rule 190). A defendant maj^, without appearing, serve a demand of notice of the execution of any reference, writ of inquiry or jury assessment of damages, which may be directed by the court on the plaintiff's applica- tion for judgment ; such demand mil entitle de- fendant to a five days' notice {id.), and enable him to appear at the hearing and contest the question of the amount of damages to be awarded. For the purpose of .enabling it to render a judgment of proper amount, the court PROCEDUKE IN AN ACTION. 185 may compute or assess the amount, with or without a jury, or a reference may be directed, or an assessment ordered before the sheriff's jury by means of a writ of inquiry ; except that where the action is brought for an injury to person or property, the damages must be ascer- tained by the last means or by a jury in court (§ 490). If the summons Avas served other than personally, proof of the cause of action must be made, and if the action is to recover a sum of money only, if the defendant is a non-resident or a foreign corporation the plaintiff, or his agent or attorney, must always testify as to any payments, and there must in addition to the usual papers be also tiled proof by affidavit that a warrant of attachment has been levied on property of the defendant, with a descrip- tion of the property attached (§ 493; Court Eule 192). Security in the nature of an under- taking to comply with directions for restitu- tion in case defendant is allowed thereafter to defend and succeeds therein may be required by the court (id.). Judgment by default can be entered against an infant defendant only after the expiration of twenty days after the appointment of a guar- dian ad litem for him (§ 492). After a trial hy jury, judgment must be en- tered by the clerk upon application of a party in conformity with such verdict unless a dif- ferent direction is given by the court (§ 495). 186 A HANDBOOK OF CIVIL PRACTICE. After a trial by court or referee, judgment is entered by the clerk in conformity with the di- rections contained in the decision or report (Court Eule 198). In matrimonial causes, how- ever, the judgment on a referee's report is ren- dered by the court (§ 1174). A judgment must refer to the verdict, deci- sion or report that authorizes it, but shall not set out the provisions thereof in the recitals or the provisions of the pleadings or other papers (Court Rule 185). A judgment bears interest from the date of entry (§481). The Practice Act (§ 473) gives to the Su- preme Court the power in any action or pro- ceeding to declare rights and other legal rela- tions on request therefor, whether or not fur- ther relief is or could be claimed; the deter- mination takes the form of a "declaratory judg- ment," which may be defined as a judgment which merely declares or states- the legal rights of the parties, or expresses the opinion of the court thereon on a question of law, without ordering anything to be done (Black's Law Diet.; 13 Cyc. 430). Such a declaration has the force of a final judgment (§ 473). The prac- tice in such an action follows the course of other civil actions (Court Eule 210); the complaint must specify the precise rights and other legal relations requested to be declared, and whether further or consequential relief is or could be PEOCEDTJEE IN AN ACTION. 187 claimed, and if claimed, its nature and extent {id. 211). The court may in its discretion re- fuse to entertain jurisdiction {id. 212). A ver- dict of a jury, on disputed facts necessary to. be determined before judgment, may be directed by the court {id. 213). This new right is im- portant; a party to a contract, franchise, or other written instrument can thereby obtain a binding adjudication as to its interpretation, or his rights or obligations thereunder; no breach of the contract need have occurred. The valid- ity or construction of a statute or ordinance may be likewise determined; in such an action it would seem that notice and an opportunity to be heard should be given to the attorney general or corporation counsel. When final judgment is entered, the clerk, with the assistance of the attorney, makes up what is called the "judgment roU" and which is destined to be a permanent record of the issues tried and the final determination thereon. It is composed of the summons, pleadings, or copies thereof; admissions; the final judgment, and any interlocutory judgment, and each paper on file, or a copy thereof; and a copy of each order which in any way involves the merits or necessarily affects the judgment; if the judg- ment is entered by default, the written proof required to be filed by plaintiff, and the result of any assessment of damages, must be con- tained in the judgment roll; if entered after 188 A HANDBOOK OF CIVIL PRACTICE. trial, the judgment roll must contain the ver- dict, report or decision, and the exceptions or case then on file (Court Eule 202). A judgment dismissing a complaint before the close of the plaintiff's evidence does not bar a subsequent action for the same cause unless the judgment expressly declares that the dis- missal was upon the merits (§ 482). The former rule that a dismissal of an action at the close of the plaintiff's or defendant's evidence was not a bar to a new action is now changed so that the dismissal operates as a bar unless the court shall dismiss without prejudice (§ 482). After a judgment has been entered it must be "docketed," by which is meant that the de- tails as to names of parties, amount, the day, hour and minute of its entry, etc., must be copied in the docket book under the initial letter of the surname of the judgment debtor in its alphabetical order (§ 501). The clerk with whom the judgment roll has been filed must supply transcripts of the judgment on request, which transcripts may be filed in the offices of county clerks of other counties, and each such clerk must forthwith docket it, i.e., make simi- lar entries regarding the judgment in his docket book (§ 502). 2. The lien of a judgment upon the judg- ment-debtor's real property within each county where it has been docketed attaches immediately PROCEDURE IN AN ACTION. 189 upon such docketing, and continues for ten years to be a lien on all real property of the judgment debtor within the county, of which he becomes seized during such period, with- out any affirmative act on the part of the judgment-creditor (§ 510). During such period of ten years the judgment binds and is a charge upon such real property. It is entitled to full priority over subsequently docketed judgments. But judgments which become liens on real prop- erty of a judgment debtor acquired by him after the docketing of such judgments, have no priority between themselves (Hulbert v. Hul- bert, 216 N. Y. 430). Death of the judgment debtor extends the period of the lien to two years after his death and eighteen months after the appointment of his personal representative (§ 655). After the expiration of the ten years such real property may be levied upon under an execution as described in the next following- subdivision (§ 512). The lien of a judgment on the goods and chat- tels of the judgment-debtor within the county not exempt from levy attaches from the time of the delivery of an execution thereon to the sheriff to be executed (§ 679), but such a lien does not impair the title to any part of such goods and chattels, acquired prior to an actual levy under the execution by a purchaser in good faith and without notice that the execution has been issued (§ 683). 190 A HANDBOOK OF CIVIL PRACTICE. 3. An execution to enforce a judgment may be issued as of course, where the judgment is (a) for a sum of money only, (b) in favor of the plaintiff in ejectment or dower, or (c) in favor of either party and awards possession of a chattel (§ 504). If issued upon a judgment against a judg- ment-debtor who has since died, leave to issue it must first be obtained both from the court in which it was obtained, and from the surrogate (§§ 655-6). Where the judgment, or a part of it, cannot be enforced by an execution, it may be enforced by serving a certified copy on the party against whom it is rendered, and if he refuses or neglects to obey it, by punishing him for a con- tempt of court (§ 505). This section applies to specific directions contained in judgments in equitable actions. An execution may be either (a). against prop- erty, (b) against the person, (c) to deliver pos- session of real property, or (d) to deliver pos- session of a chattel (§ 638). The execution against property may be issued to any county wherein the judgment is docketed (§ 648). It must describe the judgment upon which it is issued, and direct the sheriff to re- turn it within sixty days to the clerk where the judgment roll is filed (§ 640). If issued iipon a judgment for a sum of money, the execution must state the amount, and the amount actually PROCEDURE IN AN ACTION. 191 due when the execution is issued; it must also specify the date from which interest is to be computed and the sheriff must collect interest accordingly (§ 642). An execution against property must require the sheriff to satisfy the judgment out of the personal property of the debtor within his county, applying first any per- sonal property seized under a warrant of attachment, and if sufficient personal property cannot be found, then out of the real property therein belonging to the debtor at the time the judgment was docketed, or at any time there- after, first applying thereto any real property that has been likewise attached (§§ 643, 645). Such an execution may be issued as of right at any time within five years after entry of the judgment (§ 650), and if returned unsatisfied, further executions may be issued as of right thereon during the life of the judgment (§ 652) ; if no execution is issued within the first five years, then leave of court must first be obtained upon notice to the judgment-debtor, and upon proof of the non-payment of the judgment (§ 653). A householder is entitled to certain exemp- tions from levy under execution, consisting mainly of specific household furniture and sup- plies for family use, and in addition certain necessary household furniture, working tools, team, professional instruments, furniture and library, not exceeding in value two hundred and fifty dollars (§ 665). A lot of land, with one or 192 A HANDBOOK OF CIVIL PRACTICE. more buildings thereon, not exceeding in value one thousand dollars, and occupied as a resi- dence may be made exempt from sale under execution (unless the judgment was recovered for debts contracted before the designation, or for the purchase money thereof), upon the designation of a householder having a family, by so designating it in a conveyance recorded as a deed, or in a notice recorded in the county clerk's office in a book styled the "Homestead Exemption Book" (§§ 671-2). Personal property levied upon under execu- tion is taken into the sheriff's possession and is sold by him at public auction (§ 660). Real property may be sold under execution after six weeks' published notice of time and place of sale, and after a similar notice has been posted in three public places for forty-two days (§ 712). Such notice must contain a descrip- tion of the property (§ 713). The sheriff must, after a sale, make duplicate certificates thereof specifying time of sale, name of purchaser, a particular description of the property sold, and the consideration money paid (§ 716). One of these certificates is filed for record with the clerk of the county, and the other delivered to the purchaser (§ 717). The judgment-debtor's title is not divested by the sale, but continues until the expiration of the redemption period and the execution of the sheriff's deed, but if the property is not PROCEDURE IN AN ACTION. 193 redeemed the grantee of the sheriff under snch deed is' deemed to have been vested with title from the time of the sale (§ 718). The person entitled to its possession at the time of the execution sale continues entitled to the ordinary use and occupation of the premises until the ex- piration of the redemption period (§ 719), but may be restrained from committing waste (§§ 720-1). The judgment-debtor, or the one succeeding to his title, may redeem the property from the sale within one year thereafter, by paying to the purchaser or the sheriff the amount paid upon the sale with ten per cent, interest (§§ 724-6). Thereupon the sale becomes null and void (§ 726). A subsequent judgment- creditor or mortgagee may redeem within three months thereafter (i.e., fifteen months in all from the day of the sale) by paying the pur- chase money with seven per cent, interest, and other subsequent judgment-creditors or mort- gagees may redeem from each other in the order of their priority (§§ 727-47). After the dif- ferent redemption periods have fully expired, the sheriff gives a deed to the person entitled, which deed conveys to the grantee the title of the judgment-debtor as sold by the sheriff {i.e., the interest which he had in the property on the day, hour and minute the judgment was docketed, or at any time thereafter to the time of the sale) (§ 748). 13 194 A HANDBOOK OF CIVIL PRACTICE. A continuing execution against future wages, salary or income may be directed, after the ex- ecution against property has been returned un- satisfied. Thereby a levy may be made to the extent of not more than ten per cent, of the wages, salary, income from trust funds, due and to become due to the judgment-debtor, and amounting to twelve dollars or more per week. No notice to judgment-debtor or employer is necessary, but in case of the judgment-debtor's receipt of income from trust funds notice to the trustee is held necessary (Matter of Siegel, 179 App. Div. 532). Proof of the receipt of the wages or income must be presented (informa- tion as to which is obtainable in supplementary proceedings considered hereafter), and thereon an order is granted directing the issuance of an execution which upon presentation to em- ployer or trustee becomes a lien and a continu- ing levy to the specified percentage against such wages or income of the judgment-debtor accrued or thereafter accruing (§ 684). Failure to pay over the percentage renders the employer or trustee liable to an action by the judgment- creditor (id.). A judgment may be discharged of record by the execution and filing of a satisfaction-piece, by the party, or his executor or administrator, or, within two years from entry of judgment or order of affirmance on appeal, by his attor- ney of record, or by the assignee of the judg- ment if the assignment has also been filed; or PROCEDURE IN AN ACTION. 195 by the deposit with the clerk of the amount of the judgment with interest; or by the sheriff's indorsement of payment upon an execution re- turned by him (§ 530). If a judgment-debtor has been discharged in bankruptcy, he may apply at any time after one year has elapsed for the cancellation of the judg- ment (Debtor & Cred. Law, § 150). Of course he must show that the judgment was one from which he is entitled to be discharged under the Banliruptcy Act, and that the judgment was properly included in his schedules of liabilities. An execution against the person may usually be issued only after the return unsatisfied of an execution against the property issued to the .county where the debtor, if a resident, resides (§ 766). Such an execution may be issued in an action where the plaintiff would have the right to an order of arrest because of the nature of the action (§§ 764, 826, subd. 1-9) ; or in any other case where an order of arrest has been granted and executed and has not been vacated (§§ 764, 826, subd. 10). 4. Supplementary proceedings are so called because they supplement the ordinary proceed- ings available at law to enforce collection of the judgment ; they constitute a method for the dis- covery of the property of the judgment-debtor through an exainination of the judgment-deb- tor, or of any person indebted to him or having property belonging to him, and for the applica- 196 A HANDBOOK OF CIVIL PRACTICE. tion of the discovered property or debt to the payment of the judgment, either through the appointment of a receiver, or the order of the court for its delivery to the sheriff (§§ 773-813). To entitle the judgment-creditor to an order for the examination of the judgment-debtor, or person believed to be indebted to him, an execu- tion upon the judgment must have been issued : 1. Within ten years prior to the commence- ment of the proceedings, and returned wholly or partly unsatisfied (the issuance, but not the return of the execution, must be shown when a third person's examination is sought, § 785) ; 2. Out of a court of record ; 3. After personal service of the summons, or the judgment-debtor's appearance (or the sub- stituted service permitted against a resident) ; 4. Upon a judgment for not less than $25 ; 5. To the sheriff, in whose county at the time of the commencement of the supplementary proceeding the judgment-debtor had a place for the regular transaction of business in person; Or if he is a resident, to the sheriff of the county where he resides; Or if he is not a resident, to the sheriff of the county where the judgment-roll is filed (§§ 775, 779). If the judgment-creditor can show by affidavit that the debtor has property which he unjustly refuses to apply toward the satisfaction of the judgment, he is entitled to the order for his PROCEDURE lif AN ACTION. 197 examination after the issuance, and before the return, of the execution (§ 780). A statement on information and belief as to Ms possession of such property, without showing the sources of the information, is wholly insufficient to sup- port the order (Matter of Smith v. Haverty's Stables, 157 App. Div. 777). The order for the examination may be granted by a judge of the court rendering the judgment, or by a county judge; on a municipal court judgment in the Borough of Manhattan, the order is granted by a justice of the City Court (§ 778). It is served -by exhibiting the original order and delivering a copy thereof and of the affidavit upon which the order was granted (§ 798). If service of the order is not made and the date set for the examination has passed, the order has no validity and may be disre- garded and a new order obtained (Matter of Dorfman v. Jacobs, 100 Misc. 592). If service of the order has not been made in time, the judge granting the order may place thereon a new date, but no other judge may do so (Matter of Ward, 144 App. Div. 143). In order to ob- tain the order, it is necessary, of course, to present to the judge an affidavit wherein all the facts essential to the maintenance of the pro- ceeding must be shown. The authority of the attorney of the judgment-creditor to institute the proceeding will be presumed (Miller v. Adams, 52 N. Y. 409), but an affidavit by the attorney's clerk without a showing of his au- 198 A HAHTDBOOK OF CIVIL PEACTICE. thority will not be accepted (Matter of Eyre v. Stubbert, 71 Misc. 147). The judgment-debtor, or the person charged with being his debtor or bailee, is directed by the order to appear before the judge, or a referee, at the time and place therein specified, and submit to an examination concerning the property of the judgment-debtor (§§ 779, 786) ; he may be enjoined from transferring or other- wise disposing of any property of the judg- ment-debtor until further direction (§ 797). Upon the return day of the order, the judg- ment-debtor, or third person, is sworn by the judge or referee, and questioned by the judg- ment-creditor's attorney. The testimony when completed must be signed by the witness, and sworn to before the 'judge or referee. The fact that the third person claims that he has no property of and is not indebted to the judgment-debtor, or asserts title to property claimed to belong to the judgment-debtor, does not prevent his thorough examination (Matter of First Nat. Bank v. Gow, 139 App. Div. 576). Probably the most practical way to conduct the proceedings is to first examine the judg- ment-debtor, and obtain full information from him as to his debtors and bailees, in addition to his examination regarding property in his own custody ; if the result of such examination shows the desirability of so doing, the proceeding may be adjourned and a debtor or bailee of prop- PKOCEDUEE IN AN ACTION. 199 erty, or any other person, may be subpoenaed to attend on the adjourned date, when he may be examined to the fullest extent regarding property of the judgment-debtor held by him, or money owed to him by the witness (§ 791; Matter of First Nat. Bank v. Gow, 139 App. Div. 582). If property is discovered, a receiver may be appointed, who becomes vested by law with the title of the judgment-debtor upon his qualifica- tion (§§ 805-9), or the one indebted to the judg- ment-debtor may be ordered to pay his debt, or a bailee to deliver the property of the judgment- debtor to the sheriff, to be applied to the satis- faction of the judgment (§§ 792-5). Upon the application of the receiver or judgment-credi- tor the court will require the surrender of property to the receiver (Clark v. Shaw, 91 Misc. 245). Whether the receiver is vested with title to the judgment-debtor's real prop- erty is not certain (See Chadeayne v. Groyer, 83 App. Div. 403; McGown v. Barnum, 182 N. Y. 547). Such proceedings may be had where the judgment-debtor is a foreign or domestic cor- poration (Matter of Boucker Co. v. Callahan Co., 218 N. Y. 321), but no receiver may be ap- pointed therein for a domestic corporation (id.). The judgment-creditor of a domestic corporation, after return of execution unsatis- fied, may bring an action to procure a judgment 200 A HANDBOOK OF CIVIL PRACTICE. sequestrating its property and providing for the distribution thereof (Gen. Corp. Law, § 100). Only one examination of the judgment- debtor, or a third person, can be had as a matter of right; on an application for a second order the judgment-creditor should show facts oc- curring subsequently to the first proceeding which justify the second examination (Matter of Walker, 157 App. Div. 609). The following property cannot be reached under supplementary proceedings: (a) Prop- erty exempt by law from levy and sale under execution; (b) Trust property held for the benefit of the judgment-debtor but proceeding from another person; (c) His last sixty days' earnings, when necessary for the support of his family (§ 777). IX. Appeals. 1. Appeals generally. 2. Appeals to Appellate Division. 3. Appeals to Court of Appeals. 4. Appeals to the Appellate Term. 1. Appeals cannot be taken except as pro- vided by statute. Any party, or any person thereafter substituted as a party, who is ag- grieved may appeal, except where the judgment or order has been rendered or made upon de- fault (§ 557).. The appealing party is called the appellant and the adverse party the re- PROCEDURE IN AN ACTION. 201 spondent; after an appeal has been perfected, the name of the appellate court must be substi- tuted for the court below, but otherwise the title remains unchanged (§ 561). An appeal is usually taken by serving upon the attorney for the adverse party, and upon the clerk with whom the judgment or order is entered (the latter service being made by filing the notice in his office), a written notice to the effect that the appellant appeals from the judg- ment or order, or from a specified part thereof (§ 562) ; if appellant desires, on appeal from a final judgment, to review an interlocutory judgment or an intermediate order, he must specify it in the notice of appeal (§ 562). The time within which to appeal varies with different courts, and the different species of determinations appealed from. No judge or court has the right to extend the time during which an appeal may be taken, or allow it to be taken after "the expiration of the time fixed (§99). In order to start the time running within which to appeal, the attorney for the un- successful party must usually be served with a copy of the judgment or order of the court with a notice of the time and place of its entry (§§ 592, 612). However, the party entering the judgment or order, or serving the notice of entry, is not entitled to any further notice in order to limit his time to appeal (id.). If a party dies before his time to appeal ex- pires the court may allow an appeal within 202 A HANDBOOK OF' CIVIL PKACTICE. four months after such party's death; during the four months the personal representative must procure an order allowing him to appeal and serve a notice of appeal, and the court is without power to extend the period (§ 99; Warner v. Dunlap, 196 App. Div. 41). The mere taking of an appeal (unless taken by the people of the State, or certain state or county officers, or by municipal corporations, §§ 570-1) does not stay the successful party from enforcing the judgment. If the appeal is from a judgment for a sum of money, the ap- pellant may give a written undertaking to the effect that if the judgment is affirmed on appeal he will pay it; if such an undertaking is given and the sureties upon it are financially suffi- cient, all proceedings to enforce the judgment are stayed pending the determination of the appeal (§§ 573,594,614). On appeals from other determinations of the court, a stay of proceedings must generally be obtained upon application to the court, which may grant such a stay upon such terms as to security or otherwise as justice requires (§§ 595-8). An appeal is heard by an appellate court upon a printed record of what transpired in the court below. Oh an appeal from an order, this record con- sists of the order, notice of appeal, and the papers specified in the order as the papers upon which the order was founded, and also the PROCEDURE IN AN ACTION. 203 opinion of the court below or an affidavit that no opinion was given (§ 577; Court Eule 234). On an appeal from a final judgment, this record consists of a copy of the judgment roll, the notice of appeal, and what is called a ' ' case ' ' prepared by the appellant (§ 577) : this case consists of all the evidence taken at the trial by question and answer, and the rulings of the court, together with the substance of the docu- mentary evidence introduced or offered, and the exceptions taken by all parties ; the case as proposed by the appellant may be subjected to proposed amendments by the respondent, and must be settled, i.e., passed on and approved as to its contents, and signed, by the judge before whom the action was tried (§ 576; Court Eules 230, 232). If the appellant desires to review only cer- tain exceptions taken on the trial, he shall serve on the adverse party a notice specifying such exceptions (Court Rule 229), and instead, of a case he prepares a bill of exceptions which contains only so much of the evidence as is necessary to present the questions of law which are to be raised by him {id. 232). The bill of exceptions is proposed, amendments thereto proposed, and its form settled as with a "case'' {id. 231). The clerk of the court below must -certify to the appellate court the correctness of the printed record, but the attorneys for the par- ties may stipulate as to the corsectness of the 204 A HANDBOOK OF CIVIL PRACTICE. record and thus dispense with the certification (§§ 170, 577). Briefs of counsel are also printed, and copies thereof exchanged before oral argument under requirements of the various appellate divisions (Court Eule 236). A party obtains the right to review on appeal a ruling of the trial court by taking an "excep- tion" to the ruling. An exception taken during the trial of the action is usually entered in the judge's minutes (§ 446). The stenographer is required by law to note each exception, and his notes may be treated as the minutes of the judge. Every remark or comment of the pre- siding judge during the trial may be excepted to and included in the case on appeal, and is made the subject of review by the appellate tribunal (§ 582). An exception to the judge's charge to the jury may be taken at any time before the jury has rendered its verdict (§ 446). An exception may now be taken to the judge's denial of the motion to set aside a verdict and for a new trial when made upon the coming in of the ver- dict and before the jury is discharged (§ 444) ; but when the judge reserves decision on the motion or the motion is made. after the jury is discharged, his determination of the motion is made by an order signed by the judge (as it is then too late to note the ruling and an excep- tion thereto in the trial minutes), and it is in- cluded in the appeal record (§ 616) ; an appeal PROCEDURE IN AN ACTION. 205 from the judgment entered upon the verdict brings up this order for review although it is not specified in the notice of appeal (§ 580). Exceptions to the rulings in the written de- cision of a court without a jury, or in the re- port of a referee, are taken by filing written notice thereof in the clerk's office, and serving a copy on the attorney for the adverse party; such exceptions may be taken at any time within ten days after the attorney for the exceptant has been served with a copy of the decision of the court or referee, with notice of the entry of judgment thereupon (§ 445). It is discretionary with the judge presiding at a jury trial to direct that the exceptions taken during the course of the trial be reviewed by the court to which an appeal could be taken from final judgment, and that meanwhile judg- ment be suspended (§ 550). An appeal to the Appellate Division may be taken from a final judgment rendered in the supreme court upon a trial by the court or a referee, or upon the verdict of a jury, upon questions of law, or upon the facts, or upon both (§ 608). This court therefore must pass upon the weight of evidence; its determination thereon is final and may not be reviewed in the Court of Appeals. In determining the appeal it may reverse or affirm, wholly or partly, or may modify the judgment or order appealed from, and as to any or all of the parties ; a final 206 A HANDBOOK OF CIVIL PRACTICE. judgment is thereupon rendered, unless it is necessary or proper to grant a new trial when it may order such new trial (§ 584). If final judgment is directed on reversing or modifying a judgment entered on the decision of a court or report of a referee, and no new trial is di- rected, the Appellate Division makes new find- ings of fact which are inserted in its order for judgment, and the facts found. by the trial court or referee which are reversed are also specified in the order (Court Rule 239). Appeals to the Appellate Division may be taken from any supreme court final or inter- locutory judgment, and from about all species of orders that may be made in an action or special proceeding, whether made by a court, or by a judge out of court upon notice (§§ 609-11). Such an appeal must be taken Avithin thirty days after service upon the attorney for the appellant of a copy of the judgment or order with written notice of its entry (§ 612). After the Appellate Division has reached its conclusion upon the appeal, its determination takes the form of an order of the court, which is entered in the office of the clerk of the appel- late division; a certified copy of such order, with the original case or papers upon which the appeal was heard, is then transmitted to the clerk of the county where the judgment or order was entered (^vith certain exceptions), upon which the clerk enters a judgment in con- formity therewith; the judgment-roll consists PROCEDUEE IN AN ACTION. 207 of such judgment, and the certified copy of the order, annexed to the papers upon which the appeal was heard (§ 621). An order of the Appellate Division which reverses a judgment or order must state Avhether the reversal was made upon the facts or upon the law, or upon both the law and the facts, and also whether the decision was unanimous as to an issue or party (§ 620). This provision is of the highest importance in connection with a further appeal to the Court of Appeals, and may be determina- tive of the right of a further appeal as well as of the jurisdiction of the Court of Appeals to review the determination made. Appeals from judgments and orders of other courts of record {i.e., county courts and surro- gates' courts, principally) may be taken to the Appellate Division in the department embrac- ing the county wherein the lower court is held ; except that such appeals from determinations of the City Court of the City of New York lie to the Appellate Term of the supreme court (N. Y. City Court Act, §§ 68-70; Practice Act, § 627). 3. Appeals to the Court of Appeals may be taken (§§ 588-9) : 1. From a judgment or order entered upon a decision of the Appellate Division and finally determining an action, or a special proceeding, where is directly involved the construction of the constitution of the State or of the United 208 A HANDBOOK OF CIVIL PRACTICE. States, or where one or more of the justices of the appellate division dissents or does not par- ticipate in the decision, or where the judgment or order is one of reversal or modification; 2. From an order of the appellate division granting a new trial on exceptions, where the appellant stipulates that upon affirmance by the Court of Appeals, judgment absolute shall be rendered against him; 3. From determinations of the Appellate Di- vision other than a judgment or order which finally determines an action or special proceed- ing where the Appellate Division allows the appeal and certifies that, in its opinion, one or more questions of law have arisen which ought to be reviewed by the Court of Appeals, in which case the question or questions so certi- fied are alone reviewed: 4. From a judgment or order entered upon the decision of an appellate division which finally determines an action or special proceed- ing, but which is not appealable as of right un- der subd. 1, where such Appellate Division shall certify that, in its opinion, a question of law is involved which ought to be reviewed by the Court of Appeals, or if it refuses to so certify, an appeal is allowed by the Court of Appeals. It is only where an appeal is allowed from a determination of the appellate division other than from a judgment or order which finally determines an action or special proceeding, that one or more questions must be certified; PKOCEDTJEE IN AN ACTION. 209 where the appeal is allowed from such a final judgment or order, the appellate division merely certifies that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals, upon which certificate every proper question of law may be raised on the appeal (Katson v. Zimmerman, 196 App. Div. 260). Where the appellate division has unanimously reversed an order of the trial judge setting aside a verdict and directing a new trial, and has reinstated such verdict and directed judg- ment to be entered thereon, no appeal will lie to the Court of Appeals except by permission (Burns Mfg. Co. v. Clinchfield Products Co., 231 N. Y. 6'53). The jurisdiction of the court is limited to a review of questions of law (Const., Art. VI, § 9; Practice Act, § 589); No unanimous deci- sion of the Appellate Division that there is evi- dence supporting or tending to support a find- ing of fact by a court without a jury or a referee, or a verdict of a jury not directed by the court, shall be reviewed by the Court of Appeals (id.) ; when the justices of the appel- late division are divided thereon, a question for review is presented (§ 589). The right to appeal to the Court of Appeals shall not be made to depend upon the amount involved (Const., Art. VI, § 9). It is necessary in order to perfect the appeal for the appellant to give security upon an ap- 14 210 A HANDBOOK OF CIVIL PRACTICE. peal to the Court of Appeals, viz., an undertak- ing to the effect that he will pay all costs and damages which may be awarded against him not exceeding five hundred dollars (§ 593) ; such an undertaking to pay costs will not effect a stay of enforcement of the judgment appealed from, but if a money judgment the appellant may and usually does unite the undertaking for costs with a further undertaking to pay the judgment appealed from, and these two under- takings may be combined in the same instru- ment (§ 565). No security is necessary on an appeal to the Appellate Division, but the tak- ing of the appeal does not stay the enforcement of the judgment appealed from (§ 614). The order of the Court of Appeals upon the determination of the appeal is called the "remittitur." It is annexed to the papers upon which the appeal was heard, and the action is "remitted" to the court below, where the judg- ment of the Court of Appeals is to be enforced according to law (§ 606). Upon the record so remitted or sent back to the lower court, and the remittitur, a formal order is made in the lower court making the judgment of the Court of Appeals the judgment of the lower court and adding the necessary directions as to affirmance, reversal or modification of the judgments which had been appealed from. The record before the Court of Appeals is usually the same as before the Appellate Divi- sion, with the opinion rendered by the Appel- PROCEDTJEE IN AN ACTION. 211 late Division on the appeal, and its order, and the judgment entered thereon, with the notice of appeal to the Court of Appeals (§ 601). An appeal to the Court of Appeals from a judgment or an order must be taken within sixty days after service upon the attorney for the appellant of a copy thereof with written notice of its entry (§ 592). « 4. Appeals may be taken in specified cases to the Appellate Term of the Supreme Court. This is the name given to the terms held by the justices of the Supreme Court designated by the Appellate Divisions for the First and Second Departments to hear appeals from the City Court and municipal courts (§ 627). The power of the Appellate Term to review judg- ments and orders of the City Court of New York is quite analogous to the power of the Ap- pellate Division to review Supreme Court judgments and orders, and includes the power to review any exercise of discretion by the court or judge below (N. Y. City Court Act, §§ 68-72). Such appeals must be taken within ten days after service of a copy of the judgment or order with written notice of the date of its entry (N. Y. City Court Act, § 73). The Appellate Terms also have general appellate jurisdiction over judgments and orders of the municipal courts of the City of New York (N. Y. City Munic. Ct. Code, §§ 154-5), and such appeal must be taken within twenty days after the 212 A HANDBOOK OF CIVIL PEACTICE. entry of the judgment or order {id., § 156). An appeal from the Appellate Term to the Ap- pellate Division cannot be taken of right, but may be allowed by the Appellate Term, or by a justice of the Appellate Division (Praictice Act, § 627; N. Y. City Court Act, § 74; Cuyler Eealty Co. v. Teneo Co., 196 App. Div. 440). CHAPTER VII. PBOCBDUKE IN COURTS NOT OF RECORD. These courts are mainly organized for the trial of actions involving limited amounts, and certain provisions awarding to defendant a re- covery of costs in actions brought in courts of record, where the amouUt awarded is less than fifty dollars, seek to require that lesser contro- versies be confined to these courts. The courts not of record consist of courts of justices of the peace throughout the State, the municipal courts of the City of New York and certain other cities, and certain other courts enumer- ated in Section 3 of the Judiciary Law. The limit of the jurisdiction of justices of the peace is two hundred dollars (Justice Court Act, § 2). The Municipal Court of the City of New York- has a limit of one thousand dollars (N. Y. City Munic. Ct. Code, § 6). Within these limits of amount these courts have jurisdiction (stated generally) of all actions on contract, and of all actions for tort except libel, slander, assault, malicious prosecution, false imprison- ment and seduction (Justice Court Act, §§ 2-3; N. Y. City Munic. Ct. Code, § 6). No action may be entertained for the recovery of real property. So far as the procedure in these courts sub- [213] 214 A HANDBOOK OF CIVIL PKACTICE. stantially follows the procedure in a court of record as considered in the last chapter, it will not be repeated ; reference will only he made to those particulars in which the procedure is peculiar. Unless particularly noted, only the practice in the courts of justices of the peace, as regulated by the Justice Court Act, will be considered. The summons is issued by the justice, or, if he has a clerk, may be issued by the clerk. The summons in the municipal courts of New York City may also be issued by plaintiff's attorney (N. Y. City Munic. Ct. Code, § 19), but in the instance of an attempt to commence an action operating as saving a cause of action from the bar of the statute of limitations {id., § 18) the summons must have been issued by the clerk of the court (Sanger v. Duncan, 196 App. Div. 55). Personal service of the summons only can be had in these courts, except where an attachment has been issued and levied the sum- mons may be served on a defendant who is a non-resident of the city or of the county, by de- livering it to the person having possession of the attached property (Justice Court Act, § 80; N. Y. City Munic. Ct. Code, § 48). Issue is joined on the return day of the summons (Justice Court Act, § 125). The pleadings may be oral or written ; if oral, their substance must be entered by the justice (§127). The plaintiff may, if he desires, make PKOCEDTJRE IN COUETS NOT OF KECORD. 215 a written complaint in an action on contract, and verify it as in an action in the Supreme Court; the answer in such case must be veri- fied (§§ 150-1). A\Tien sued for breach of contract, defendant must interpose any counterclaim he has for a like cause which might be allowed him on the trial, and if he neglects to interpose it he can- not thereafter sue upon it (§§ 140-1); some specific exceptions to this rule exist (id.). If from plaintiff's case it appears that the title to real property is called in question, the justice must dismiss the action with costs (§ 177). If a defendant, in his answer, shows that the title to real property will come in ques- tion, he may give an undertaking to admit ser- vice of a summons and complaint in a court of record at suit of the plaintiff, and the justice must discontinue the action (§§ 172-6). The subpoena of the justice runs throughout the county where his court is located ; a witness may be required by subpoena to attend and be examined before a justice in an adjoining county (§ 190). The testimony of witnesses that are not within the county or an adjoining county may be taken by commission on interrogatories, or upon oral questions when the consent of all parties is given (§§ 202-3). A jury trial must be demanded at the time of the joining of issue, or otherwise is waived (§ 224). A jury usually consists of six men, 216 A HANDBOOK OF CIVIL PRACTICE. though a lesser number may be accepted by the parties (§ 231). Judgment must be entered by the justice in conformity with the verdict of the jury (§ 269). When no jury is present, the justice tries the issue and renders judgment according to law and equity, as the very right of the case appears (§§ 216-7). _ The justice must, upon application, deliver to the successful party a transcript of the judg- ment; this transcript may be docketed in the office of the clerk of the county, and is thence- forth deemed a judgment of the county court of that county (or the Supreme Court of New York County), and may be enforced accord- ingly, except that an execution thereon must be issued by the county clerk (§ 272). Trans- cripts may be secured from the county clerk and filed in the office of any other county clerk (§ 274). An execution upon the judgment may be issued by the justice to a constable, provided that it has not been docketed in the county clerk's office, in which event an execution is issued by the county clerk to the sheriff only (§§ 278-9) ; such an execution substantially fol- lows the form of an execution to the sheriff (§§ 279, 281-3). Appeals lie from the justice's court to the county court of the county where the judgment was rendered (§ 427). Appeals from the muni- PROCEDURE IN COURTS NOT OF RECORD. 217 cipal court of the City of New York lie to the Appellate Term of the Supreme Court (N. Y. City Munic. Ct. Code, § 154). An appeal must be taken within twenty days after the entry of the judgment in the justice's docket (§ 428). The appeal is taken by serving the notice of appeal on the justice and upon the respondent ; costs included in the judgment must be paid to the justice at the time of the taking of the ap- peal (§§ 428, 430). An undertaking may be given to stay enforcement of the judgment (§ 434). The justice makes a return to the appellate court, which return contains all the proceedings before him, including the evidence and the judgment rendered, unless the appellant is entitled to and has demanded a new trial in the County Court (§ 438). An appellant may have a new trial in the County Court where the sum demanded by either party exceeds fifty dollars (§ 442). CHAPTER VIII. SPECIAL, PKOCEEDINGS. They are defined as including all civil prose- cutions, except actions, brought for the enforce- ment or protection of a right, or redress or pre- vention of a wrong (Practice Act, § 5). All proceedings in surrogates' courts, and the vari- ous proceedings embraced within Articles 77- 82 of the Practice Act, and hereafter consid- ered, are special proceedings. The Statute of Limitations applies equally to rights sought to be enforced by actions or by special proceedings (§§ 10-11). A special proceeding is usually commenced by the presentation to a judge, or court, of a verified petition or affidavit, setting forth the grounds upon which the application is made, and any supporting affidavits which the peti- tioner wishes to submit, upon which the original process provided by statute issues to the ad- verse party (if any exists), or in the absence of statutory provision an order to show cause is secured directed to the adverse party, and requiring him at a time and place specified to show cause why the relief prayed should not be awarded. Many special proceedings involve no adverse interests and are entertained upon the presentation of the necessary proofs to [218] SPECIAL PEOCEEDINGS. 219 "warrant judicial action. The applicant is gen- erally called the petitioner and the adverse party the defendant, or respondent. In a sur- rogate's court process called a citation is issued in some proceedings, and in others an order to show cause (Surr. Ct. Act, § 52). In some cases the proceeding may be commenced by serving a copy of the petition upon the respondent with notice that application for the relief sought will be made at a time and place specified (Prac- tice Act, § 1319, regulating mandamus proceed- ing). The reply of the adverse party to the state- ments in the petition and affidavits is submitted in a return, or by way of answering affidavits. The court has the power to send any disputed question of fact to a referee to take testimony and report for the court's advisement (§ 80). In some cases issues of fact raised by statute, or by the return or answering affidavits, must be submitted to the decision of a jury (§ 1333, mandamus; §§ 1364-^6, to inquire into incompe- tency), or may be so submitted if demanded (Justice Court Act, § 397, dispossess proceed- ing). A special proceeding terminates in a final order, which is appealable (§ 631). CHAPTER IX. surrogates' courts. I. Proceedings generally therein. II. Probate of will. III. Administrators. IV. Administration and distribution of estate, and accounting therefor. V. Sale of decedent's realty to pay debts. VI. Guardians. I. Proceedings Generally. Practice and procedure in Surrogates' Courts are now regulated by a separate statute called the Surrogate Court Act, and the refer- ences to sections in this chapter are to such act. The surrogates' courts deal exclusively with the administration of decedent's estates ^nd the care of the person and property of infants (§ 40). They are courts of statutory creation, possessing no jurisdiction that is not referable to some statute (Matter of Hoyt, 103 Misc. 614). "The jurisdiction of the surrogate is the creation of statute, and if not conferred upon him does not exist" (Matter of Pinckney, 115 Misc. 602). There is a surrogate of each county in the State ; in some counties of limited [220] StTRKOGATEs' COURTS. 221 population the county judge is also the surro- gate (Const., Art. VIII, Sec. 15). Two surro- gates sit in New York County, and the court is there divided into trial terms, where all con- tested probate proceedings are heard, and a term called chambers, where are heard all other matters (§ 36). The surrogate's court is a court of record (Judiciary Law, § 2), and has a seal (Surr. Ct. Act, § 3). The summons or original process in the sur- rogate's court is called the citation, and while proceedings therein are commenced by the filing of a petition (§ 48), a citation must be issued and served within sixty days thereafter (id.). The presentation of the petition is deemed the commencement of the proceeding within the Statute of Limitations, but the citation issued thereon must be personally served within sixty days thereafter, or the first publication begun (§ 48). The citation is made returnable before the surrogate (§ 52) on a day certain, and specifies the object of the proceeding; it also contains the name of the petitioner, and names of all the persons to be cited, but if their names are unknown and cannot be ascertained, they may be designated by showing their connection with the decedent, or their interest in the prop- erty or matter in question (§§ 53-4). The service of a citation does not differ sub- stantially from the service of a summons in a civil action (§§ 55-60). A citation must be 222 A HANDBOOK OF CIVIL PKACTICE. served in the county, or an adjoining county, at least eight days, and in any other county of the State at least ten days, before its return day ; and it may be served by any person oyer eighteen years of age, although he is a party to the proceeding (§ 59). Service of any cita- tion or other mandate of a surrogate's court may be made in any county in the State (§ 52). Substituted service of the citation may be had in much the same way as substituted service of the summons in an action as previously de- scribed in Chapter VI (§§ 56-8). A personal service upon an infant under fourteen years, or upon an incompetent, or a corporation, is to be made in the manner provided for personal service of the summons in such case (§ 55). A party who is an adult may appear in per- son, or by attorney, by filing a notice thereof in the surrogate's court (§63) and his general appearance is equivalent to. the personal service of the citation upon him and gives jurisdiction of him to the surrogate (§41). An adult party may waive the issue and service of a citation by a written waiver, acknowledged and proved as a deed {id.). Proof of service of the cita- tion is made by affidavit of the one serving it, or by the written admission of the person cited, acknowledged or proved (§ 61). The surrogate appoints a special guardian to protect the interests of an infant party to a proceeding, who has no general guardian, or SUEEOGATES' COURTS. 223 whose general guardian does not appear, or whose interests are adverse to the infant; a like special guardian is appointed in like manner for an incompetent party whose com- mittee does not appear or is adversely inter- ested (§ 64). The citation usually contains a direction to any infant party to appear by his general guardian, or to apply on the return day for the appointment of a special guardian, and notifies him that in case of his default the sur- rogate will appoint a special guardian for him. The petitions, answers and objections of the parties must be presented in writing and veri- fied as a pleading (§§ 49-50). Oral testimony may be taken before the sur- rogate, and must be authenticated and pre- served in permanent form (§§ 27-8). An ex- ception to a ruling of the surrogate during the trial is taken in the same manner as before a court without a jury — i.e., by an entry in the stenographer's minutes of the fact of an ex- ception being taken (§ 72). The decision of the surrogate after "a trial before him without a jury must be in writing and direct the decree to be entered, but need not contain the facts found or the conclusions of law, and upon appeal the decree has the same effect as a general verdict of a jury (§71). No proposed findings of fact or conclusions of law can be submitted to the surrogate (id.) The prepara- tion and settlement of the record for an appel- 224 A HANDBOOK OF CIVIL PRACTICE. late court follow the Supreme Court procedure (§ 72); see Chapter VI, under subdivision "Appeals." Jury trials ntiay now be had in the surrogate's court in contests over the probate of a will, and in any proceeding where a controverted question of fact arises of which any party has a constitutional right of trial by jury (§ 68) ; the right is waived unless seasonably demanded (§ 67), but if so demanded must be granted by the surrogate and a trial by jury directed either before himself or in the supreme court or the county court of the county (§ 68). Upon a jury trial before him the surrogate has the same power over the verdict as is possessed by the presiding judge in actions at common law (§69; Matter of Eno, 196 App. Div. 131), which will enable the surrogate to set aside a verdict as against the weight of evidence, or contrary to law (Civil Practice Act, § 549). References may be ordered by the surrogate in any proceedings except to probate a will, and subject to the right of trial by jury of any question of fact; these references may be to take evidence and report upon specific ques- tions of fact, or to examine an account and hear and determine all questions arising upon its settlement, subject, however, to confirmation or modification by the surrogate (§ 66). A referee's report is deemed confirmed after a lapse of ninety days from the time it is sub- surrogates' courts. 225 mitted to the surrogate for his action, if mean- time he has not confirmed, modified or rejected it {id.). The final determination of the surrogate upon the rights of the parties in any proceed- ing is styled a decree (§ 78). Such a decree is conclusive as to all matters embraced therein against every person of whom jurisdiction Avaa obtained (§ 80). Prior to 1914 no jury trial was obtainable as of right in a proceeding be- fore the 'surrogate, and therefore the limit of legislative power was reached in providing that upon issues as to which a constitutional right of trial by jury existed the decree of the surrogate was presumptive merely. For ex- ample, the decree probating a will was conclu- sive as to the personal property of the estate, but only presumptive as to the realty. Finality now obtains as to all matters adjudicated. Transcripts may be procured of a decree di- recting 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 judg- ment (§ 81). Execution upon it is issued to the sheriff from the surrogate's court, and is made returnable to that court (§83). A surro- gate's decree may be enforced by punishment for contempt, when it cannot be enforced by execution, or where an execution has been issued and returned unsatisfied, or where the delinquent is an executor, administrator, guar- 15 226 A HANDBOOK OF CIVIL PKACTICE. dian or testamentary trustee, and the decree relates to the fund or estate in his charge (§ 84). Costs are generally in the discretion 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 (§§ 275-8). They include all disbursements which may be taxed in the Supreme Court. A surrogate may allow to any party in an uncon- tested proceeding twenty-five dollars, and where there has been a contest, seventy dollars, and where the trial occupies more than one day ten dollars for each additional day occupied upon the trial and in preparation therefor (§ 278). A special guardian's compensation shall be a reasonable sum for his services and fixed by the surrogate (§ 280). An appeal from a surrogate 's decree or order lies to the Appellate Division (§ 288), and must be taken within thirty days after service upon the appellant, or his attorney, of a copy of the decree or order, with written notice of its entry (§ 293). All parties to the proceeding who have appeared must be made parties to the appeal (§ 289). An appeal may be taken upon ques- tions of law, or upon the facts, or both; if it is taken from a decree mgide upon a trial of an issue of fact, the surrogate must settle a "case," upon which the appeal is heard in the manner prescribed for the making and settling 227 of a case upon an appeal in an action (§ 294). Security to stay the enforcement of a decree for the payment of money must be given as though the appeal were from a judgment of a similar character (§ 299). Upon the decision of an ap- peal by the Appellate Division, a certified copy of its order, annexed to the papers upon which the appeal has been heard, is transmitted to the surrogate's court, and the surrogate must enter the decree or order necessary to carry the de- termination into effect (§ 310). The surrogate issues to persons appointed as executors, administrators and guardians what are termed respectively "letters testamentary," "letters of administration" and "letters of guardianship." They are conclusive evidence of authority (§ 90). Such letters may be re- voked by the surrogate for subsequent miscon- duct, established in a proceeding brought to re- voke such letters (§§ 99-104). II. Probate of WiU. A written will disposing of either real or personal property, or both, may now be pro- bated (a) when executed according to the laws of this State; (b) when executed as prescribed by the laws of the state or country where it was executed; and (c) when executed by a non-resi- dent according to the laws of the testator's residence ; and the subsequent change of a tes- tator's residence does not affect either the 228 A HANDBOOK OF CIVIL PRACTICE. right to have a will probated or its construc- tion (Dec. Est. Law, §§ 23-4). A nuncupative or unwritten will bequeathing personal estate may be made by a soldier when in actual military service, or by a mariner while at sea {id., § 16). A will may be "propounded" — i.e., offered for probate — ^by a person named in it as execu- tor or beneficiary, or any other person inter- ested in the estate, including a creditor or any person interested in an action brought or to be brought wherein the testator would be a proper party (Surr. Ct. Act, § 139) ; a verified petition must be presented to the surrogate stating the jurisdictional facts, including the decedent's residence and property interests, and the names and addresses of all persons interested as bene- ficiaries and of all persons adversely interested, i.e., the husband or wife, if any, and the next of kin and heirs at law (§§ 51, 139). Jurisdic- tion to probate the will of a deceased resident of the State belongs exclusively to the Surro- gate's Court of the county of his residence, without regard to where his death happened (§ 45). Those persons who will succeed to the dece- dent's property, if probate of the will is denied, must be cited to attend the probate, viz. : 1. The husband or wife, and all the heirs at law of the testator, if the will relates exclusively to realty; 229 2. The husband or wife, and all the next of kin of the testator, if the will relates exclusively to personalty; 3. All those persons, if the will relates to both real and personal property (§ 140). The citation in addition to the usual contents must set forth the names of the petitioner for probate and the decedent, and state whether the will relates to real or personal property, or both (§ 140). The beneficiaries named in the will are not cited, but before letters testamen- tary are issued upon probate of the will a no- tice to the beneficiaries of the fact of probate or offer of probate must be served by mail and proof thereof filed with the surrogate (§ 146). Any person named as a beneficiary in any other paper purporting to be the decedent's will which is on file must be cited (§ 140). If objec- tions to the probate are interposed, all the per- sons named as beneficiaries must be given no- tice of the contest by the proponent in order that their rights or interests shall be subject to the result of the proceeding (§ 148). The surrogate must take written proof of the due execution of the will, and any party to the proceeding may require the oral examination of the subscribing witnesses and may examine such witnesses and any others produced by the proponent before filing objections to probate (§ 141). A will may be admitted to probate 230 A HANDBOOK OF CIVIL PRACTICE. upon proof of the handwriting of the testator and of the subscribing witnesses, and of such other circumstances as would be sufficient to prove the will upon the trial of an action, if the subscribing witnesses are all dead, or incom- petent, or absent from the State and their testi- mony has been dispensed with by the surro- gate, or have forgotten the occurrence, or even testified against the execution (§ 142). The de- position of a subscribing witness who is absent from the State- must be taken if demanded by any party, or if required by the surrogate (§ 141). The surrogate must be satisfied of the genuineness of the will and sufficiency of its execution, and that the testator was mentally competent and not under restraint (§ 144). The surrogate must pass on the validity, effect or construction of any disposition of property, when a proceeding therefor is brought, or where an issue thereon is raised upon the probate pro- ceeding (§ 145). A lost or destroyed will may be admitted to probate, but only in case the will was in exis- tence at the time of the testator's death, or was fraudulently destroyed in his lifetime, and its provisions are clearly and distinctly proven by at least two credible -witnesses (a correct copy or draft being equivalent to one witness) ; an action may also be brought in the Supreme Court for such purpose (Surr. Ct. Act, § 143; Dec. Est. Law, §§ 200-6). SXJKROGATES' COURTS. 231 Letters testamentary are issued upon the probate of the will, to the persons named therein as executors (§ 155), unless objections to the competency of any person are filed by an in- terested party, in which case the surrogate must first inquire into the objections (§ 96). No person named in the will as executor may be appointed, if he is an infant, an incompe- tent, an alien non-resident, a felon, or a person found by the surrogate to be incompetent for other specified reasons (§94). If a sole execu- tor or all of the executors be deceased, or in- competent, or no person is named as executor, the surrogate must appoint an administrator with the will annexed, who must observe and perform the will, and who has the rights and powers of an executor (§§ 133, 225). Prior to his appointment as such, a person named in the will as executor may pay funeral charges and preserve the estate (§ 223). An executor is not usually required to give a bond; where an objection to his competency has been estab- lished to the satisfaction of the surrogate, based on his irresponsibility, or non-residence, the person may nevertheless secure his appoint- ment by giving a bond (§97). A person named as an executor may renounce the appointment by a properly executed instrument (§ 158). A person named as executor should qualify within fifteen days after probate, or may, after noti- fication, be deemed by the surrogate to have renounced upon, failure to qualify within a 232 A HANDBOOK OF CIVIL PKACTICE. specified further time (§ 157). An executor qualifies by taking a written oath before a per- son authorized to take an affidavit, which oath is filed with the surrogate, and provides that the executor will well, faithfully and honestly discharge the duties of his office (§ 98). If two or more executors disagree regarding the cus- tody of the estate funds, the surrogate will, upon application, give directions regarding them (§ 228). If no executors are appointed, letters of ad- ministration with the will annexed may issue in the following priority: 1. To one or more residuary legatees; 2. To one or more of the principal or specific legatees ; 3. To husband or wife, or to one of the next of kin or heirs at law; 4. To the public administrator (§ 133). After a will has been admitted to probate it is recorded at length in the record books of wills kept in the court ; the original mil is filed and remains in the surrogate's office, although upon proof of the necessity for its production in some other state or foreign country the sur- rogate may allow it to be sent or taken thereto (§ 150). If the will affects real property in any county, a certified copy must be recorded by the county clerk upon request (§ 152) and the STJKROGATES' COURTS. 233 executor should secure such recording. A cer- tified copy of the will, and a certificate of its probate, may be read in evidence (§ 151). III. Administrators. If a person dies intestate, i.e., leaves no will, letters of administration upon his personal es- tate may be granted by the surrogate of the county where he was a resident at the time of his death; or, if a non-resident dies intestate within the county leaving personal property in the State, or dies without' the State leaving per- sonal property within the county (§§ 45-6). An administrator has nothing to do with the decedent's real property, except where he may bring a proceeding to sell it to pay his debts; see Subdivision V, post. In granting letters of administration the sur- rogate gives preference in the following man- ner: (1) To surviving husband or wife; (2) to children; (3) to grandchildren; (4) to father; (5) to mother; (6) to brothers; (7) to sisters; (8) to other next of kin entitled to share in dis- tribution, etc.; males are preferred to females of Ihe-same degree; if no relative will accept the appointment, the public administrator has preference over a creditor (§ 118). No person may be appointed an administra- tor who is an infant, an incompetent, a non- resident alien, a felon, or who is adjudged unfit 234 A HANDBOOK OF CIVIL PRACTICE. by the surrogate (§94). A person may re- nounce his right to appointment by means of a properly executed instrument filed with the sur- rogate (§ 120). The person seeking appointment as adminis- trator presents a verified petition therefor to the surrogate; all persons shov^n by the peti- tion to be residents of the State and of prior or equal right, who have not renounced, must be cited; if the petition shows no such persons, letters may at once be issued to the petitioner without citation (§ 120). Before a person may be appointed administrator he must file his oath to well, faithfully and honestly perform his duties (§ 98), and must execute and file with the surrogate the bond of himself and two sureties in at least the value of the personal property conditioned for the faithful perform- ance by him of his trust (§ 121). The surrogate may issue limited letters with- out bond giving authority to the appointee to prosecute a right of action given to the per- sonal representative, but forbidding any com- promise or collection of a judgment until se- curity given (§ 122); such limited letters are often granted when the only asset is a right of action for causing the death of the decedent. A person may be appointed temporary ad- ministrator, where for any reason there is a necessary delay in the granting of letters testa- mentary or of administration, or in the probate surrogates' courts. 235 of a will, or where a person has disappeared and is presumed to be dead and his property needs protection (§ 126). Such a temporary administrator has authority to advertise for claims (§ 128), to collect and preserve the de- cedent's or absentee's property, and in connec- tion therewith to maintain any action or special proceeding, and under the special direction of the surrogate upon notice to all parties who have appeared to sell specific personal' prop- erty, and to pay funeral expenses and to pay debts, legacies or distributive shares after the lapse of specified periods (§§ 127, 217-8). What are called "ancillary letters testamen- tary" may be granted upon a will of a non- resident testator, which has been properly pro- bated in the country or state of his residence (§ 159). The surrogate must appoint any com- petent person named in the will for such pur- pose (§ 161), and before issuing letters must ascertain and cite the state comptroller and the resident creditors, must ascertain the amount of their claims, and require proper security to be given in an amount equal at least to twice the amount of the ascertained claims. Such an ancillary executor must transmit assets to the foreign jurisdiction to be there administered, unless he is directed to pay the claims of resi- dents out of any property collected by him, and transmit the balance to the place where the principal letters were granted (§§ 164-5). 236 A HANDBOOK OF CIVIL PEACTlOE. A ioreign executor or administrator may sue or be sued in this State, upon there being filed with the cleric of the court a properly authen- ticated copy of his foreign letters within twenty days after action commenced (Dec. Est. Law, § 160). IV. Administration, Distribution and Accounting. An executor or administrator may compel a discovery by any person, relative to his pos- session or concealment of any of the decedent's property, or as to his knowledge concerning de- cedent's property or affairs, in a proceeding for that purpose, commenced as usual by the filing of. a petition containing proper allega- tions and followed by the issuance and service of an order wherein the surrogate directs the personal attendance of the person (§ 205); if. such person interposes a verified answer that he is the owner of the property, or has a lien thereon entitling him to its possession, the issue raised by such answer must be heard by the surrogate ; if the surrogate is satisfied that property of the decedent is Avithheld or con- cealed by the person cited, a decree may be en- tered directing its delivery (§ 206). This pro- ceeding may not be used to ascertain evidence to be used in an action in another court (Mat- ter of Sielcken, 115 Misc. 385), or in other pro- ceedings (Matter of Eyan, id. 472). surrogates' courts. 237 Two appraisers may be appointed by the sur- rogate to inventory and appraise the value of the decedent's personal property; such inven- tory and appraisement when made must be filed with the surrogate, and the expense of making them at an amount allowed by the surrogate is an estate charge (§§ 195-198). Certain specific articles of personal property are not to be deemed assets, but are to be included and stated in the inventory as set off to them, when decedent has left surviving widow or husband or minor children (§ 200). Among personal assets which go to the personal representative are included leases for years, removable fix- tures, growing crops, and rents accrued at the death of the decedent (§ 202). Personal property may be sold at any time at public or private sale by the executor or ad- ministrator, for the payment of the decedent's debts, and the legacies or distributive shares; articles not necessary for the family, or which have not been specifically bequeathed, are to be first sold (§ 214). Advice as to value of prop- erty, and the proper methods and terms of sale thereof may be obtained, on notice to the par- ties interested, and if followed protect the repre- sentative from personal liability (§ 215). A notice for creditors to present claims with the vouchers therefor at a place specified and before a date named may be published in such papers as the surrogate directs, once a week for 238 A HANDBOOK OF CIVIL PKACTICE. six months, or in any county containing wholly within the boundaries a city of the first or second class, once each alternative week for twenty-six weeks (§ 207) ; satisfactory vouchers may be required in support of any claim pre- sented, together with the claimant's affidavit that the claim is justly due, that no payments have been made thereon, and that there are no off-sets {id.). If the justice of a clairh, in whole or in part, is doubted by the executor or admin- istrator, he shall serve written notice upon the claimant that he rejects it; action must be brought upon it within three months thereafter, or an action thereon is barred, but the claim may be thereafter heard and determined by the surrogate upon the judicial settlement of the account (§ 211). If a creditor fails to present his claim within the time specified in the advertised notice, or if no notice is published, then within one year after the letters were issued, the representative is not chargeable to. the creditor for any assets or moneys paid to creditors, or to persons bene- ficially interested in the estate, before such claim was presented (§ 208). Of course the creditor may pursue his remedy against those who re- ceived money or property except as creditors (Dec. Est. Law, § 170, et seq.). The reasonable funeral expenses of the de- cedent are preferred over all classes of debts, and must be paid out of the first moneys re- surrogates' courts. 239 ceived ; payment out of moneys in hand may be directed by the surrogate at any time after sixty days have elapsed since the granting of letters (§ 216). The decedent's debts must be paid in the following order: (a) All debts en- titled to a preference under United States* and state laws; (b) all taxes assessed on deceased's property prior to his death; (c) all judgments and decrees according to their respective priority; (d) all other debts (§ 212). An ex- ecutor or administrator may not pay his own debt until it has been first proved before and allowed by the surrogate at the time of the ac- counting and the statute of limitations is sus- pended meantime (§ 209). Expenses of ad- ministration of the estate may be paid, and the amount thereof set forth in the account, and are to be settled by the surrogate in case of dispute thereon (§ 222). Legacies are not payable until the completion of the publication of notice to creditors, or if none is published until expiration of one year from the time of the granting of letters upon the estate, unless directed by the will or by a decree on an accounting to be sooner paid (§ 218). If directed to be sooner paid, the ex- ecutor may require a bond conditioned for the refunding of the sum paid, or a proper propor- tionate amount thereof, if the testator's assets prove to be insufficient to pay his debts and pro- portional parts of other legacies (id.). Be- 240 A HANDBOOK OF CIVIL PRACTICE. quests of specific articles of property (other than securities representing money) may be de- livered at any time (§ 218). The executor or administrator may volun- tarily present his account for judicial settle- ment: (a) At any time after one year has elapsed since the granting of letters, or (b) where notice to creditors to present claims has been duly published for six months (§ 261). The surrogate may require the rendering of such an account on the application of a credi- tor, or person interested in the estate, or a surety on the official bond of the accounting party, whenever (a) fifteen days have elapsed since completion of publication of notice to pre- sent claims, or one year has elapsed since the granting of letters; (b) where his letters have been revoked or his powers have ceased; (c) where real property has been sold pursuant to the surrogate's order, or where any of the de- cedent's real property has been disposed of pursuant to a power in the will, and fifteen days have elapsed since the time to present claims has expired, or one year has elapsed since letters were issued (§ 258). The first is termed a voluntary and the second an involuntary or compulsory accounting or judicial settlement. The accounting party may head off a proceeding for an involuntary ac- counting l^y filing his account and petitioning for a voluntary accounting, in which case the surrogates' courts. 241 surrogate consolidates the two proceedings (§ 260). Upon the presentation of a petition for a voluntary accounting there must be cited to attend the settlement: (a) The sureties on the bond of the accounting party; (b) all creditors and persons claiming to be creditors, except such as have been paid according to vouchers filed with the account; (c) the decedent's hus- band or wife, and the next of kin, or, all lega- tees and devisees, except as to those who have given duly executed releases which are filed with the account (§ 262). The account must contain a statement of all receipts and disburse- ments; any party interested may demand the production of a voucher for any payment al- leged in the account to have been made, and such voucher must be produced or satisfactory proof of such payment made (§ 263). Any party may contest the account, usually by filing written and verified objections (§ 49), and the account may be sent to a referee to hear and determine all questions arising upon its settle- ment subject to the surrogate's confirmation, modification or rejection (§ ^%). The executor or administrator may be al- lowed for his costs and counsel fee upon an ac- counting twenty-five dollars if uncontested, seventy dollars if contested, and in addition such a sum as the surrogate deems reasonable, not exceeding ten dollars per day for each day 16 242 A HANDBOOK OF CIVIL PRACTICE. spent in the trial or preparation therefor, and not exceeding ten dollars per day for each day spent in the preparation of the account, or in preparing and entering the decree (§§ 278-9). An objecting party, if succeeding in sustaining his objections, may be allowed seventy dollars and ten dollars per day for each day, less one, occupied upon the trial. Commissions on the money received and paid out may be allowed to an executor or adminis- trator at the time of the settlement of the ac- count as follows: Five per cent, on the first thousand dollars, two and a half per cent, on the next ten thousand dollars, and one per cent, on all sums in addition to the eleven thousand dollars (§ 285). The value of any real or per- sonal property received and distributed or de- livered, except a specific legacy or devise, is considered as money in computing commissions (id.). Each executor or administrator of an estate amounting to one hundred thousand dol- lars or more is entitled to full commissions (id.). The decree to be made upon an accounting must direct the distribution to those entitled of any of the estate remaining in the hands of the accounting party (§ 267). The shares to Avhich the next of kin are entitled in case of intestacy are detailed in § 98 of the Decedent Estate Law ; the share of an infant may be directed to be paid to his general guardian and applied to his surrogates' courts. 243 support and education in such amounts as the surrogate deems necessary (§§ 194, 271). Such decree is conclusive evidence as against all par- ties duly cited, or who appear, as to all matters embraced in the account and decree, which will ordinarily cover and include determination that the items of credit allowed are correct, that the accounting party has been charged with all ac- cruing interest and increment, that the amount charged against him was all that was collec- tible, and that he was correctly charged with increase and allowed for decrease in the value of the property (§ 274). The decree itself must contain a summary of the account as settled (id.). V. Sale of Decedent's Realty to Satisfy Charges Thereon, and for Distribution. This proceeding cannot be entertained where the decedent's real property can be disposed of under a valid power contained in a will for the same purpose for which the sale is sought, or consists of an exempted property (§ 233). The proceeding may be instituted within eighteen months from the first granting of let- ters upon the estate, and by the executor or administrator (§§ 233, 236). The petition must state with particularity the decedent's debts, and set forth facts showing that the personal property is insufficient (§ 236). Upon presen- tation of the petition a citation issues, directed 244 A HANDBOOK OF CIVIL PKACXICE. to all persons interested in the real estate (§ 236), and upon its return day the surrogate must hear the allegations and proofs of the parties. The decree must determine and specify the amount and general nature of the unpaid debts established, must contain a de- scription of the real property to be disposed of, and must direct the executor or administrator to mortgage, sell or lease the same (§ 238). A sale and conveyance of realty by means of this proceeding will not affect in any way the title of a purchaser, in good faith and for value, from an heir or devisee of a decedent, unless letters on the estate were granted by the surro- gate within two years after the decedent's death (§ 245). Assuming that such letters were granted within the tAvo years, this proceeding- must be commenced within eighteen months after letters were granted (§ 233); in order, therefore, to purchase decedent's real property free from a possible sale under the surrogate's direction, a pei'iod of three and one-half years marks the utmost limit within which such a pro- ceeding may be commenced (§§ 233, 245). VI. Guardians. The surrogate has full power of appoint- ment of a general guardian of an infant's per- son and property (§ 173). Jurisdiction to ap- point the guardian is given to the Surrogate's Court of the county wherein the infant resides surrogates' courts. 245 or has been sojourning for the prior year, or if a non-resident wherein he has property (§ 174). An infant of fourteen years or over may present a petition for the appointment of a general guardian (§ 175). Any person may apply for the appointment of a guardian for an infant under fourteen years (§ 175). The peti- tion among other things must show whether either parent is living ; if other than a parent is sought to be appointed, the petition must show why the appointment of such other person is expedient (§ 176) and the parents if within the State must be cited upon the application (§ 177). The general guardian may be nomi- nated by the petitioner subject to the surro- gate's approval (§§ 176, 179). A general guardian must give his bond with at least two sureties for the faithful perform- ance of his trust before he is appointed, and take and file his judicial oath (§ 180). The term of office expires when 'the infant becomes twenty-one years of age (§ 179). The same person may be appointed general guardian of the infant's person and property, or two dif- ferent persons may be appointed; a person other than the father or mother may be ap- pointed by the surrogate in his discretion {id.). Letters of guardianship once issued may be at any time revoked for the guardian's mis- conduct or non-residence (§99). A general guardian must, in the month of January of each year, file an annual inventor^ of the infant's 246 A HANDBOOK OF CIVIL PRACTICE. property, together with an account of all his receipts and disbursements during the preced- ing year; such inventory and account must be verified by his affidavit as to its completeness and correctness (§§ 190-1). These inventories and accounts must be examined under the sur- rogate's direction, and a delinquent guardian may be required to file the same {§§ 192-3). A surrogate has power to direct the applica- tion of so much of the income of the infant's property, or so much of the principal itself when the income is inadequate, as is deemed necessary, to his support and education (§ 194). A judicial settlement of the guardian's ac- count may be compelled when the ward has at- tained his majority, or is dead, or when a suc- cessor has been appointed, or the guardian's letters revoked (§ 258). A guardian may re- quest such a settlement and a discharge under like circumstances, or where he has expended all of the infant's estate (§ 261). The proceed- ings upon such settlement are similar to "the proceedings upon the settlement of the account of an executor or administrator, for which see supra, subdivision 4. A guardian appointed hy will (called often a testamentary guardian) must, before he is entitled to act, obtain letters of guardianship from the surrogate admitting the will to pro- bate (§ 187). A guardian appointed either by will or by deed may be required by the surro- surrogates' courts. 247 gate, in his discretion, to give security to the same effect and in the same form as in the case of a general guardian, unless contrary to the express provision of the will or deed (§ 188). Such a guardian may be compelled to render his account for judicial settlement in any case where a general guardian may be so compelled (§ 190). CHAPTER X. PROCEEDINGS OF HABEAS CORPUS, MANDAMUS, CERTIORARI AND PROHIBITION. These special proceedings, in which the people of the State can be seen to have a cer- tain indirect interest, were formerly instituted by the issuance of what were "State AVrits;" by the new Civil Practice Act, these proceed- ings are commenced by the issuance and ser- vice of an order, instead of the writ (with the exception of Habeas Corpus and Certiorari to review the cause of detention, where the writ still issues, and Mandamus Avhere the original process is a notice of motion). After com- mencement issue is usually joined by the filing of a return , i.e., an answer, and the issues pro- ceed to determination in methods substantially similar to any other special proceeding. The circumstances under which these particular proceedings may lie are defined and regulated by the Practice Act; they are four in number, and are considered here separately. The purpose of these state writs of habeas corpus and certiorari is to require judicial iii- quiry into the cause of a person's detention, and procure his immediate release if shown to be illegally detained. The writ of habeas cor- [248] 249 pus has been considered an invaluable safe- guard against political usurpations of power and has been termed the "greatest writ of the common law because it assures and secures per- sonal liberty by simple and direct process avail- able to every citizen" (Peo. ex rel. Bungart v. Wells, 57 App. Div. 140). Either writ may be granted to any person re- strained of his liberty, for any cause or upon any pretense (§ 1230), and is an absolute right, unless the prisoner is detained under a man- date from a court or judge of the United States, or under a final judgment or decree of a coin- petent tribunal of civil or criminal jurisdiction, or its final order in a special proceeding, ex- cept a contempt proceeding, or under a man- date issued to enforce such a judgment, decree or final order (§§ 1230-1). Either writ is ob- tained upon a verified petition presented by the prisoner, or any person on his behalf (§ 1232), which must show in substance, (a) the fact of imprisonment,, (b) that the one im- prisoned is not detained under the excepted court process as above, (c) -the alleged cause, or pretense of the imprisonment, and if under a court mandate, a copy must be annexed, and (d) wherein the imprisonment is claimed to be illegal (§ 1234). The application must be made to the Supreme Court, at a special term or ap- pellate division within the judicial district, or to a justice- of the court in any part of the State, or to an officer (such as county judge) author- 250 A HANDBOOK OF CIVIL PRACTICE. ized to perform the duties of such justice at chambers within the county, and must be granted under heavy penalty (§§ 1232, 1235). The form of each writ is given in Sections 1237-8. Such a writ must be issued by a judge •without application therefor, when he has evi- dence before him of an illegal imprisonment (§ 1241). The writ of habeas corpus directs the production of the body of the prisoner at a time and place specified, accompanied by an ex- planation of the cause of the imprisonment; the writ of certiorari does not require the pro- duction of the prisoner, but directs that the cause of the imprisonment be certified to the court at a time and place specified (§§ 1237-8). Where the people are directly interested or a party to the proceeding, the attorney general or a district attorney makes the application for the writ (§ 1233) ; when the writ is issued upon the application of a private person, it is issued in the name of the people, but must show that it was issued upon the relation of the private person, called the relator (§ 1236). The title to a proceeding prosecuted by a private person is "People, ex rel. (or "upon the relation of") John Doe v. Eichard Eoe." A person against whom the writ is issued is styled therein the defendant (§ 1236). The writ may be made re- turnable, i.e., require obedience to its command, or cause shown, either forthwith, or at a future day specified (§ 1239). A final determination of the proceeding is called a final order (§ 1268), HABEAS corpus; MANDAMUS. 251 from which, an appeal lies as from an order in an action (§§ 631-4). The writ of habeas corpus may be served by an adult, and if the prisoner is in legal custody the fees allowed by law must be paid at the time of the service, and a bond furnished for the payment of return charges and that the prisoner will not escape (§ 1243). Where a person to whom a writ is directed cannot be found, or conceals himself, it may be served upon the person having charge of the prisoner, or if ad- mittance is refused the writ may be affixed in a conspicuous place on the outside of the place of detention (§ 1242). Either writ may be re- turnable forthwith, in which case it must be obeyed within twenty-four hours at a place within twenty miles of the place of service, with an additional day for each additional twenty miles (§ 1244). The return or answer to the writ must be verified (unless made by a sworn officer), and must state plainly and unequivocally whether or not defendant detains the prisoner, and if so, the authority and true cause of the imprison- ment, at length (§ 1245). If the writ com- mands the production of the body of the prisoner it must be obeyed, unless the return states that such production would endanger the prisoner's life or health (§ 1246). This re- turn may be denied by the prisoner or the ap- plicant for the writ (§ 1259). The judge must 252 A HANDBOOK OF CIVIL PRACTICE. innnediately inquire into the facts and dis'- charge the prisoner if no lawful cause of de- tention is shown (§ 1251). If shown to be law- fully detained by virtue of the mandate or final judgment of a competent tribunal, the prisoner must be remanded and the writ dismissed (§ 1252). The legality or justice of such pro- cess or judgment under Avhich the prisoner is held is not to be inquired into (§ 1254). An appeal lies from a refusal to grant the writ, and from a final order upon the return of said writ to discharge or remand the prisoner, or to dis- miss the proceeding (§ 1274). These writs do not serve the same functions as appeals, whereby to review errors (Peo. ex rel. Friedman v. Hayes, 172 App. Div. 442), and are not to be considered as substitutes therefor. The questions presented are merely whether the court under whose process the prisoner is held had jurisdiction (Peo. ex rel. Hubert v. Kaiser, 206 N. Y. 46; Peo. ex rel. Reynolds v. Warden, 44 Misc. 149; Peo. ex rel. Danziger v. House of Mercy, 128 N. Y. .140), and authority to render the judgment (Peo. ex rel. Tweed v. Liscomb, 60 N. Y. 559). The evidence given before the trial tribunal which convicted the prisoner is not to be considered (Peo. ex rel. Fleisdiman v. Fox, 34 Misc. 82), or errors claimed to have been committed dur- ing the trial reviewed (id.). Where the prisoner has not been tried, but has been held by a magis- trate to await the action of the grand jury, a HABEAS COBPUS; MANDAMUS. 253 writ of certiorari to the magistrate Avill bring up the evidence before him for review, and the question is thereupon presented AA^hether there was any evidence tending to show that the crime charged had been committed and tending to connect the prisoner therewith (Peo. ex rel. CouAvay v. Warden, 180 App. Div. 336; Peo. ex rel. Bungart v. Wells, 57 App. Div. 140). Delay in bringing the prisoner to trial does not present a ground for discharge upon habeas corpus (Peo. ex rel. McGowan v. Warden, 155 App. Div. 484). Evidence given before the grand jury which returned the indictment un- der which the prisoner is held cannot be in- quired into (Peo. ex rel. Burke v. McLaughlin, 77 Misc. 13). The constitutionality of the stat- ute under which the prisoner has been com- mitted may be assailed (Peo. ex rel. Hoelderlin V. Kane, 79 Misc. 140). A prisoner sought to be extradited may raise on habeas corpus the question whether he is charged Avith a crime by the demanding state (Peo. ex rel. Marshall v. Moore, 167 App. Div. 479), and may prove an alibi to defeat extradition (Peo. ex rel. Genua V. McLaughlin, 145 App. Div. 513). The cus- tody of children may be determined by habeas corpus (Dom. Rel. LaAv, § 70; Matter of Mather, 140 App. Div. 478) ; so as to question of the sanity of a person held in custody as insane (Insanity Law, § 93; Peo. ex rel. Bebro v. Bond, 104 App. Div. 47). The A\^rit of habeas corpus formerly issued 254 A HANDBOOK OF CIVIL, PRACTICE. to bring up, a prisoner to testify as a witness in behalf of the applicant ; this remedy is now ob- tainable by an order, which may be granted by any court of record upon the application of a party to an action or special proceeding (§ 415). A supreme court justice, or a county judge, may make such order upon the application of a party to a special proceeding pending before any body or officer authorized to examine a witness, or upon the application of a party to an action pending before a court not of record (§§ .416-7). Such an order cannot be' made where the prisoner is under sentence of death; or if under any other sentence for a felony it can only be made by a justice of the supreme court on notice to the proper district attorney (§ 418). The prisoner must, after having testi- fied, be remanded to prison if it appear he is held by authority of court process (§ 419). The writ of mandamus has been abolished, and in place thereof an order issues in a pro- ceeding the object of which is to command the performance of a specified act by a public ser- vant, or a public body or board, or persons act- ing singly or together in a quasi-public capacity (§ 1313). The order is either peremptory, which commands the performance of a specified act, or alternative, which commands the per- formance of an act or requires cause to be shown why the command should not be obeyed (§ 1314). The order may be granted only at a special HABEAS corpus; MANDAMUS. 255 term of the supreme court, or, when directed to a judge of the supreme court, may be granted by an appellate division (§§ 1317-8). A peremptory mandamus order may be issued where the applicant's right to it depends only upon questions of law, and notice of the appli- cation for the order has been served upon the person or officer against whom it is sought, either eight days before, or such other shorter time as has been fixed by a judge in an order to show cause (§ 1319). The papers upon which the application is based must be served with the notice {id.). With this exception a peremp- tory order cannot usually be issued, until de- fault is made in answering an alternative order duly issued and served {id.), or after verdict for the petitioner on the issues of fact. The peremptory mandamus order is made return- able at a term of the court from which it issues (§ 1323), and the return or answer is annexed to a copy of the order and filed with the county clerk before the expiration of the first day of the term, or delivered in open court (§ 1325). A motion to set aside or quash the peremptory order may be made at any term where the order might have been granted (§ 1330). A failure to make a return may be punished as a contempt (§ 1324). Upon the granting or denial of a peremptory order without the issuance of a pre- vious alternative order, costs not exceeding fifty dollars may be allowed (§ 1336). 256 A HANDBOOK OF CIVIL PRACTICE. An alternative mandamus order must be made returnable twenty days after service and at the office of the county clerk (§ 1323). The peti- tion for the order must, in the same way as the complaint in an action, state the facts showing the relator's grievance, and separately state and number two or more grievances (§ 1316). Within twenty days after service of the alterna- tive order, the defendant must either file writ- ten objections to the papers in point of law, or make return thereto (§ 1323); such objections or return must be filed with the county clerk, and notice of filing served upon the attorney for the people, or for the relator (§ 1328). The defendant may file objections in point of law to the petition and order, or to any separate statement of a grievance (§ 1322), or the de- fendant may make a return, which is subject to all the rules respecting the form and contents of an answer (§ 1326). The people, or the re- lator, may within twenty days after notice of filing the return, object to the return on the ground that it is insufficient in law upon its face to answer the grievances complained of (§ 1327). The issues of fact are raised by a denial in the return of a material allegation in the petition, and by force of the .statute upon an allegation of new matter contained in the return (§ 1331). The subsequent proceedings upon the trial of the issues so raised are the same as in an action, and the petition and re- turn are deemed the pleadings; a final order HABEAS CORPUS ; MANDAMUS. 257 may be enforced by peremptory mandamus order so far as to command obedience to the specific act, but such part as cannot be so en- forced may be entered and docketed and en- forced as a judgment in an action (§ 1332). The issues of fact are triable as of right by a jury (§ 1333). Costs may be awarded as in an action, but rest in the discretion of the court (§ 1336). When a return has been made in a mandamus proceeding brought by a private person, the court in awarding a peremptory mandamus order after a verdict in his favor must, if the petitioner so elects, award the damages which would be recoverable in an ac- tion for a false return (§ 1338). The granting of the remedy of mandamus lies in the sound discretion of the court; it is not a matter of right, and is awarded only when a clear and unquestioned legal right is shown for which no adequate legal remedy exists (Matter of Kexford Flats Bridge Co. v. Canal Board, 168 App. Div. 558 ; Matter of Brooklyn Imp. Co. v. Pounds, 174 App. Div. 448). Upon application for relief by mandamus these ques- tions are presented: (a) Is there a statutory duty imposed on defendant, which is ministerial in its character; (b) has the petitioner the legal right to seek enforcement of such duty; (c) has he any other adequate remedy; (d) are the cir- cumstances such as to call for the exercise of the court's discretion in favor of the petitioner (Peo. ex reL Somerville v. Williams, 217 N. Y. 17 258 A HANDBOOK OF CIVIL PRACTICE. 40; Peo. ex rel. Britton v. Am. Press Assoc, 148 App. Div. 651 ; Peo. , ex rel. Solomon v. Brotherhood of Painters, 218 N. Y. 115). The primary object of the remedy is to compel ac- tion; it neither creates nor confers power to act, but commands the exercise of a power al- ready existing. It may require the perform- ance of a ministerial duty {i.e., one imposed expressly by law, and involving no discretion) and direct action in the particular manner pro- vided ; if, however, the exercise of ,discretion or judgment is involved, no command will issue to perform the duty in a specified way, but in such a case it will compel action without direct- ing the manner of performance (Peo. ex rel. v. Comir'rs, 149 N. Y. 26). The prohibition order may be either abso lute, or in the alternative. The order issues from the special term of the Supreme Court to an inferior court, prohibiting the doing of some judicial act which is threatened to be done; or, it may issue from the appellate division directed to one or more of the justices of the Supreme Court, or a justice holding or to hold a special term thereof (§§ 1343-5). The absolute or final order may only be issued after an alternative order has been issued and duly served, and the return day thereof has elapsed (§ 1351). The command of the alternative order is that the court or judge and also the party .desist or re- frain from any further proceedings in the ac- PROHIBITION. 259 tion or special proceeding, or with respect to the particular matter or thing described therein, until the further direction of the court granting the order, and also to show cause at the time and place specified why any further proceed- ings should not be absolutely restrained (§ 1345). Such order may be returnable forth- with, or at a future day specified (§ 1347) ; ser- vice of the order must be made upon 'the court or judge, and upon the adverse party to the ac- tion or special proceeding (§ 1346). If no re- turn be made to the order, the petitioner is en- titled to an absolute order (§ 1350). The re- turn must be delivered in open court on the re- turn day, or filed with the clerk (§ 1347). An objection to the legal suflficiency of the papers upon which the order was granted may be taken in the return (§ 1348). The issues of fact raised by the return are triable by the court without a jury, but the court may, in its dis- cretion, direct a trial by a jury of any of the issues (§ 1349). The proceeding ends in a final order, and if in petitioner's favor, grants an absolute order of prohibition (§ 1353). The only function of the proceeding of pro- hibition is to prevent a court or a judge from acting without or in excess of its or his juris- diction (Peo. ex rel. Newton v. Special Term, 193 , App. Div. 463 ; Peo. ex rel. Martin v. Brady, 168 App. Div. 108). So, where the supreme court has regularly removed to itself a criminal prosecution from another court, a 260 A HANDBOOK OF CIVIL PRACTICE. prohibition order may be obtained against any further proceedings by the latter court (Peo. ex rel. Swann v. Court of Sessions, 115 Misc. 454). It will lie, however, to restrain a non- judicial officer or tribunal possessing certain quasi-judicial powers, from exceeding his or its jurisdiction (Peo. ex rel. Hyland v. Finegan, 227 N. Y. 219). The remedy is an extraordin- ary one and lies only when the petitioner has no other remedy, by appeal, suit in equity, cer- tiorari proceeding or otherwise (Peo. ex rel. Woodbury v. Hendrick, 168 App. Div. 554; Peo. ex rel. Jerome v. Ueneral Sessions, 185 N. Y. 504). The order of certiorari to review the deter- mination of an inferior tribunal issues to re- view the determination of a public officer or body other than a court of record or a judge, thereof, except that a defect in the record before an appellate court may sometimes be corrected by the granting of the order to the lower court to obtain a further record of its proceedings (§§ 1284-5, 112). This proceeding is the statu- tory successor of the common law writ known from very early times and issued by the King's Bench ; the jurisdiction at common law has been conferred upon the supreme court (Peo. ex rel. V. Lazansky, 208 N. Y. 435). The determina- tion of the officer or public body, in order to be reviewed in this proceeding, must be final, and one which cannot be adequately reviewed CERTIOEARI. 261 by an appeal to some court, or other body, or officer, or be re-heard before some officer or body (§ 1286). The order must be applied for within four months from the time the determi- nation sought to be reviewed became binding upon the petitioner, unless he was then an infant, an incompetent, or a criminal imprisoned for less than life, in which case the appellate division may issue the writ within twenty months after the expiration of the four months (§§ 1288-9). The application is made upon a verified petition, which may be accompanied by other written proof, and is made upon or without notice in the discretion of the court; if notice be required, it must be accompanied by a copy of the papers to be presented upon the application (§ 1291). The order may be granted only at special term or appellate division (§ 1290). It is directed to the body or officer whose determina- tion is sought to be reviewed, and must be made returnable within twenty days after service (§§ 1292, 1296) ; the defendant must make and file his record, consisting of a transcript of the record or proceedings required to be certified annexed to a copy of the order (§ 1297). An omission to make return to the order may be punished as a contempt (§ 1298). Either party may notice the matter for a hearing at a term of the appellate division; it must be heard upon the order and the return and the papers upon which the order was granted (§ 1300). 262 A HANDBOOK OF CIVIL PRACTICE. The only questions to be determined by the court are: (a) Had the body or officer jurisdic- tion of the subject matter; (b) was the author- ity of the board or officer legally pursued in order to authorize it to make the determina- tion; (c) has any rule of law been violated to the relator's prejudice; (d) was there compe- tent proof of all facts necessary to authorize the determination; and (e) if such competent proof was given, was there nevertheless such a preponderance against the existence of any material fact that a jury's verdict thereon would be set aside as against the weight of evi- dence (§ 1304). The court's final order may annul, confirm or modify the determination given, wholly or in part (§ 1305). The final order must be entered in the ofl&ce of the clerk where the certiorari order was returnable, and is enforceable only upon the clerk's attaching and filing the papers upon which the matter has been heard, with a certified copy of the final order and of each order involving the merits or affecting the final order (§ 1308). Certiorari to review an assessment of prop- erty for purposes of taxation lies under article thirteen of the Tax Law, and permits a rede- termination of questions of fact upon evidence to be taken by the court or referee ; the return, therefore, is not conclusive, as at common law and under the Practice Act (Peo. ex rel. Sweet CERTIOEAEI. 263 V. Blake, 72 Misc. 646; Peo. ex rel. Citizens L. Co. V. Feitner, 81 App. Div. 118). As examples of the scope of the remedy, the removal of appointive city officers by the mayor under statutory authority requiring service of written charges and a hearing thereon upon sworn testimony reduced to writing may be reviewed (Peo. ex rel. Loevin v. Griffing, 166 App. Div. 538) ; but where the statute merely required the filing of written charges and an opportunity for explanation, which was given, the proceeding could not lie (Peo. ex rel. Kennedy v. Brady, 166 N. Y. 44). The extent of the penalty imposed does not come within judicial review (Peo. ex rel. Morrissey v. Waldo, 212 N. Y. 174). Dismissal from National Guard upon a court martial is review- able (Peo. ex rel. Smith v. Hoffman, 166 N. Y. 462). Conviction for a criminal contempt may be reviewed (Peo. ex rel. Taylor v. Forbes, 143 N. Y. 219; § 1312), but not for a civil contempt (§ 1285; Matter of Hanbury, 160 App. Div. 662). CHAPTEE XI. OTHER SPECIAL PEOCEBDINGS. Those proceedings only which are of fre- quent occurrence and importance will be briefly reviewed. Summary proceedings to recover possession of real property (Civil Practice Act, Art. 83) provide a speedy method to obtain the ouster of a delinquent tenant, or of an improper or unauthorized occupant (§§ 1410-1, 1417). Application may be made to a justice of. the peace of a town, to a judge of any city court of inferior jurisdiction (and in New York County to the municipal courts), as well as to a judge of any court of record except the supreme and surrogate's courts; it must be made to the court of the county, city or town, or the munic- ipal court district, wherein some of the prop- erty is situated (§ 1413). The supreme court has no jurisdiction to entertain this proceeding (Jones V. Reilly, 68 App. Div. 116). A peti- tion is presented by the person claiming to be entitled to possession (or owning or occupying premises within two hundred feet from the property used for illegal purposes, after notice to owner and his non-action), describing the property and the interest of the petitioner, and [264] MISCELLANEOUS SPECIAL PROCEEDINS. 265 stating the facts authorizing the removal of the person in possession (§§ 1414-7). The most frequent ground for removal is non-payment of the rent payable under the lease. Before a tenant may be removed for the non-payment of rent, a demand therefor must be made (per- sonally, and not by mail, Zissner v. Herrman, 23 Misc. 645), or at least three days' notice in Avriting served upon him requiring him to either pay the rent or remove (§ 1410). It is not essential that the exact amount due be de- manded; if rent is due, a demand met by a refusal or non-payment is enough (Moore v. Coughlin, 127 App. Div. 810). If a tenant holds over after the expiration of his term the landlord may treat him either as a tenant or a trespasser or wrongdoer (Phelan v. Kennedy, 185 App. Div. 749). The landlord may maintain the proceeding to re- move the holdover tenant although he has given a lease to another person to commence at the expiration of the lease to the one holding over (Eells V. Morse, 208 N. Y. 103; Marbridge Building Co. v. White, 113 Misc. 210). Certain temporary measures exist for the relief of tenants during the housing emergency in the large cities, and protecting them against oppressive or unreasonable increases in rentals {id., subd. 2-a). Upon presentation of the petition, a precept is issued, directed to the occupant, and requir- ing him forthwith to remove, or to show cause 266 A HANDBOOK OF CIVIL PRACTICE. why possession of the property should not be delivered to the petitioner; such precept must be returnable not less than five or more than ten days from issuance except that where the tenant continues in possession after the expira- tion of his term without the landlord's permis- sion, and the application to remove is made on the day of the expiration of the lease or the day after, the precept may be made returnable on the day it was issued between twelve and . six o'clock of such day (§§ 1418-9); the precept, together with a copy of the petition, may be served personally as a summons (except that the original precept must also be shown), or if the occupant resides in the city or town, in the absence of the occupant service may be made upon a person of suitable age and discretion residing at his dwelling house. Or if no one can be found there then upon some such person residing or employed at the property sought to be recovered ; or if no such service can be made, a copy of the precept and the petition may be affixed upon a conspicuous part of the property (§ 1421). The occupant may answer orally, or may file an answer, which may raise an issue by denying any material allegation of the peti- tion, or by setting up new matter constituting a legal or equitable defense or counterclaim, as though the claim for rent asserted in the peti- tion was the subject matter of an action (§ 1425). Such counterclaim may be based on damages for landlord's breach of covenant MISCELLANEOUS SPECIAL PROCEEDINS. 267 (Hett V. Lange, 139 App. Div. 743). A counter- claim may only be used as a set off against the rent due, and cannot be the basis of an affirma- tive judgment against the landlord in this pro- ceeding {id.). Unless a jury is demanded on the return day of the precept by one of the parties, who must then and there pay the jury fees, the trial must be had before the justice (§ 1428). If the petitioner is successful, the final order awards delivery to him of the possession of the property (§ 1430) ; thereupon the justice must issue a warrant directed to the sheriff or to a constable or a marshal, describing the prop- erty, and directing the ofl&cer to remove all per- sons therefrom and put the petitioner into full possession (§ 1432). The warrant must be executed between the hours of sunrise and sun- set (§ 1433). An appeal lies from the final order as from a judgment of the same court (§ 1441). A stay of the issuance of the war- rant may be obtained, if the proceeding is to remove for non-payment of rent, if the amount of the rent found due, with interest and costs, be deposited with the justice, who thereupon pays the amount to the petitioner ; or an under- taking may be given in certain cases to the trial judge (§ 1435). A stay pending an appeal ■can only be had by procuring an order from a county judge or a judge of the appellate court staying execution of the warrant, which order may be obtained only on the giving of a proper undertaking (§ 1443). 268 A HANDBOOK OF CIVIL PRACTICE. The issuing of the warrant for the removal of the tenant cancels the lease, but does not prevent the landlord from recovering by action the amount of rent due AA-hen the precept was issued and the value of the use and occupation to the time when the warrant was issued (§ 1434). If the canceled term exceeds five j'ears, how- ever, the tenan-t has the right to redeem Avithin one year upon paying or tendering all rent in arrears and interest (§ 1437; Terwilliger v. Browning, King & Co., 222 N. Y. 47). A judg- ment creditor or mortgagee of the lease may redeem if the lessee does not, having one addi- tional day wherein to do so (§ 1438). A committee of the person and property of an incompetent may be appointed by the su- preme court, or a county court (§ 1356). A verified petition for such appointment may be presented by any person to the special term or a judge at chambers ; the title of the proceeding until the appointment of the committee shall designate the person as "an alleged incom- petent person" (Court Rule 285); the petition must state the names of the husband, or Avife, and all the next of kin and heirs at laAv of the alleged incompetent, so far as knoAvn to the petitioner, and the probable value of his prop- erty and the character of his alleged incom- petency (Court Rule 287); notice of the appli- cation may be required, or may be dispensed with (§§ 1359-60). The court upon the applica- MISCELLANEOUS SPECIAL PEOCEEDINS. 269 tion may direct that a commission (called a commission de lunatico inquirendo) issue to one or more fit persons, or may direct that a jury trial be had at a trial term of the court of the question of fact as to competency presented by the petition (§ 1364). If a commission be issued, it directs the commissioners named to procure a jury which shall inquire into the mental condition of the alleged incompetent and the amount of his property and income (§ 1365). The report of the commissioners and the jury is called an "inquisition"; it must be signed by at least twelve jurors and a majority of the commissioners, and returned to the court and filed with the clerk (§§ 1367-8). If a jury trial is directed, it is held at a trial term of the court; the order states the questions to be tried, and the subsequent proceedings are the same as where questions of fact in an action are directed to be tried by a jury pursuant to an order for that purpose (§ 1370). Notice of the trial of the question of his incompetency must be given to the alleged incompetent, although notice of prior proceedings in the matter are not essential (Matter of Pox, 138 App. Div. 43). Upon either species of trial of the ques- tion, evidence as to incompetency must be limited to a period within two years prior to the trial, unless the court has otherwise spec- ially directed (§ 1371). The verdict or inquisi- tion must contain a finding that incompetency in a specified form exists in order to sustain the appointment of a committee (Matter of 270 A HANDBOOK OF CIVIL PRACTICE. Penfield, 162 App. Div. 888; Matter of Preston, 46 Misc. 46). The inquisition, or the verdict' of the jury, is only advisory, and may be confirmed or rejected by the court at special terrn; if the person is found to be incompetent, the court, upon confirming the inquisition or verdict, appoints a committee of the person, or prop- erty, or both (§ 1358). Such person should be carefully selected, and a reference to advise the court with regard thereto may properly be directed (Matter of Cooper, 105 App. Div. 449). The person appointed committee re- ceives letters therefor from the court, and gives a bond for the faithful performance of his trust (§ 1375) ; he may maintain actions or special proceedings in his own name as com- mittee (§ 1377) ; he must file annual inventories and accounts as a general guardian (§ 1378). He is not to be sued without leave of the court appointing him. Upon recovery of the incom- petent, the committee must be discharged by the court and the incompetent's property restored to him; the committee's powers cease upon the incompetent's death (§§ 1382-3). The general jurisdiction of the supreme court of the State, as the successor of the Eng- lish Court of Chancery, over the estates and persons of incompetents, and the general history of the development and regulation of the jurisdiction, are reviewed in Sporza v. German Savings Bank, 192 N. Y. 8, and Matter of Andrews, id. 514). MISCELLANEOUS SPECIAL PROCEEDINS. 271 A change of name of an individual may be permitted by a county court, or in New York County by the supreme or city court (Civil Rights Law, § 60). A verified petition must be presented, specifying the grounds of the appli- cation, the name of the individual and the name he proposes to assume, and his age and resi- dence must be added {id., § 61). It is also essential to show whether the petitioner is married or single, whether he is a party to any pending action or proceeding and if so to name them, whether any and if so what judgments against him exist, whether he has made or indorsed any outstanding commercial paper, and the length of his present residence (Matter of Burstein, 69 Misc. 41). Notice of such an application on behalf of an infant, made by the infant's next friend, must be served upon the infant's father, or, if dead, his mother, or if both are dead, upon his general guardian (id., § 62). If the court grants the application, an order is made authorizing the petitioner to assume the proposed name after a day speci- fied, not less than thirty days after the entry of the order ; the order must direct that it shall be entered by the county clerk within ten days after it is granted, and a copy published in a designated newspaper at least once {id., § 63). An affidavit of such publication must be filed and recorded with the county clerk, and thence- forth, from the day specified in the order, the petitioner shall be known by the name assumed 272 A HANDBOOK OF CIVIL PRACTICE. and no other {id., § 64). A person may change his name at common law without judicial sanc- tion; the statute does not repeal this right, but gives an additional method of effecting such change which has some advantages in being speedy, definite and a matter of perma- nent record (Matter of Burstein, supra). After an individual has invoked the statute, however, he shall be known by the name he is authorized to assume and by no other name; thereby he is deprived of his common law right of effecting a change at will (id.). The change of name has no effect on pending actions or proceedings, and the new name may ^ be sub- stituted by amendment. Changes of names are annually reported to the Secretary of State by the clerks (Judiciary Law, § 254). Under the General Corporation Law, § 66, the name of a domestic business, transportation or membership corporation may be changed by vote of the stockholders. Resort may also be had to the court for permission to change the name of a corporation (Gen. Corp. Law, §§ 60- 6.5). The determination of the board of direc- tors will be followed even though stockholders may object (Matter of Hinds, 172 App. Div. 140). A voluntary dissolution of a domestic corpor- ation may be directed by the supreme court upon the application of a majority of the directors, who have (a) discovered that it is MISCELLANEOUS SPECIAL PROCEEDINS. 273 insolv(3nt, or (b) for any other reason deemed it beneficial to the interests of the stockholders to dissolve (Gen. Corp. Law, § 170) ; or either the board of directors or the owners of one-half of the stock, may apply for the dissolution where there is an equal division of the control of the corporation and the ownership of the stock between contending and irreconcilable interests {id., §§ 171-3; Matter of McLoughlin, 176 App. Div. 653). The petition must be veri- fied by the affidavit of each petitioner {id., § 175), and must state in detail the reasons for dissolution, the corporate assets and liabilities, with the name and residence of each creditor and stockholder {id., § 174). Upon presenta- tion^of the petition, the court makes an order requiring all persons to show cause at a time and place specified why the corporation should not be dissolved; the petition and order must be entered in the office of the county clerk of the county where the corporation's principal office is located; a temporary receiver of an in- solvent corporation may be appointed by the order upon notice to the attorney-general, and the creditors may be enjoined from commenc- ing or continuing any actions against it for the recovery of money only {id., §§ 176-184). A copy of the order must be published as directed in the order, and a copy personally served on each creditor and stockholder at least twenty days before its return day, or by mail at least forty days prior thereto {id., §§ 179-180). The 18 274 A HANDBOOK OP CIVIL PRACTICE. court, or a referee appointed for that purpose, takes proof of the allegation of the parties, and renders a decision in writing, which must con- tain a statement of the corporate debts and assets {id., §§ 185-7). The referee's decision must be passed upon by the court on notice {id., § 190). In a proper case the court must make a final order dissolving the corporation and ap- pointing one or more receivers of its property who become vested with the property rights of the corporation upon qualification; thereupon the corporation is dissolved, and the receivers proceed to collect its assets and distribute them among those entitled {id., §§ 191-4). Proceedings to punish for contempt of court may be founded either upon a criminal or a civil contempt. Criminal contempts include dis- orderly or insolent behavior during the sitting of the court and in its immediate view and presence (Judiciary Law, § 750), and punish- ment therefor may be summarily imposed {id., § 751). Wilful disobedience or resistance to court mandates, refusal to be sworn as a wit- ness or when sworn to answer legal and proper questions, constitute criminal contempt {id., § 750) and the refusal by a subpoenaed witness is also a civil contempt {id., § 753). Unless the offense be committed in the court's immediate view, the accused must be notified and have op- portunity to defend when charged with criminal contempt {id., § 751). An order of commitment MISCELLANEOUS SPECIAL PROCEEDINS. 275 for criminal contempt must set forth the par- ticular circumstances of the otfense {id., § 752) ; this requirement is not satisfied by a statement therein that the attorney committed was "guilty of disorderly conduct" (Peo. ex rel. V. Marean, 86 App. Div. 278; Peo. ex rel. ' V. LaFetra, 171 App. Div. 269). While a crimi- nal contempt contemplates a wrong done to the authority of the law, and the fines imposed therefor go to the people as in any criminal prosecution, a civil contempt involves the in- vasion of some private right and the fine im- posed is paid to the aggrieved party as an in- demnity therefor (Bachman v. Harrington, 184 N. Y. 458). Civil contempts are defined by statute {id., § 753) and include "any other case where an attachment or any other proceeding to punish for a contempt has been usually adopted and practiced in a court of record, to enforce a civil remedy of a party or to protect the right of a party." If the civil contempt is committed in the immediate view and presence of the court or referee it may be punished sum- marily {id., § 755) ; if it consists of a failure to obey an order requiring the payment of money, and proof of personal demand for payment has been made, the court may direct a commitment without notice {id., § 756) ; otherwise the court or the referee must issue a show cause order, or a warrant to the sheriff to arrest the accused and bring him before the court or referee (id., § 757). If the accused is arrested and brought 276 A HANDBOOK OF CIVIL PRACTICE. before the court or referee, he must make an- swer to written interrogatories, and he and the other parties interested may produce proofs corroborating or contradicting the answers made, and on this record the court or referee must determine if the accused has committed the offense charged {id., § 769) ; if the accused is found guilty, and it is also determined that the offense committed was calculated to, or ac- tually did, defeat, impair, impede, or prejudice the rights or remedies of a party, a final order must be made accordingly which includes a di- rection for punishment (id., § 770). If an order to show cause has been issued, instead of a war- rant, on the return day the court or referee will proceed to determine the accused's guilt or innocence on the affidavits submitted, and if he is adjudged guilty there must be the further adjudication that the offense has impaired or defeated a party's right or remedy {id., § 772). The fine imposed in this proceeding for a civil contempt must be sufficient to indemnify the aggrieved party; if no actual loss or injury is shown, then a fine not exceeding the amount of the complainant's costs and expenses, and $250 in addition thereto, must be imposed {id., § 773; Ross v. LaCagnina, 68 Misc. 497). Im- prisonment may continue only so long as an act within the power of the accused to perform remains unperformed and the fine unpaid; otherwise, he may be imprisoned for a reason- able time, not exceeding six months and until MISCELLANEOUS SPECIAL PROCEBDINS. 277 the fine is paid {id:, ,§ 774). Eelease from im- prisonment is within the court's power {id., § 775). An attorney is guilty of a civil contempt in case of misbehavior in his office or trust, or for a wilful neglect or violation of duty {id., § 753). The courts exercise a summary control over attorneys in their professional relations with their clients, and for wrongs done in their pro- fessional character they may be summarily proceeded against (Matter of Papa v. Eini, 171 App. Div. 796) ; if, however, the grievance is based upon acts done not as attorney, but as a business agent or attorney in fact, the usual remedy by action must be pursued (Matter of Langslow, 167 N. Y. 320; Matter of King, 175 App. Div. 196). An attorney should not be subjected to summary process to compel him to pay over money to a client except in a plain case where be has violated his professional duty (Matter of Gross v. Vogel, 196 App. Div. 358) ; but where an order directing the attorney to make the payment has been granted and served, but compliance therewith has not been made, a summary commitment without notice may issue (Matter of McBride, 6 App. Div. 376). Wilful disobedience of an injunction order may be punished as a criminal contempt (Peo. ex rel. Empire Leasing Co. v. Mecca Eealty Co., 174 App. Div. 384), but the court must ad- judge that the disobedience was wilful (Pawo- lowski V. City of Schenectady, 217 N. Y. 117) ; 278 A HANDBOOK OF CIVIL PRACTICE. no person with knowledge of its terms may co- operate with a party to violate an injunction although himself not a party, and when so drawn it restrains the servants, agents and em- ployes of the party {id.). A violation of an in- junction order is also a civil contempt (Koenig v. Eagle Waist Co., 176 App. Div. 724). Other special proceedings of varying impor- tance authorized or regulated by various stat- utes are : Proceedings relating to the discharge of an insolvent from his debts, the operation of which has been practically superseded by the United States Bankruptcy Act (Debtor & Credi- tor Law, §§ 50-110) ; proceedings to discover the death of a life tenant by the person who is entitled to succeed to an interest in real prop- erty upon the determination of the life estate (Real Property Law, §§ 570-87) ; sale, mort- gage or lease of infants' or incompetents' real property, where the income therefrom and from his personalty is insufficient to pay his debts, or to maintain and educate him, or where his interests will be substantially promoted by such sale (Civil Practice Act, §§ 1388-1409; Court Rules 295-300) ; foreclosure by advertisement, which is rarely used in place of the ordinary foreclosure suit (Real Prop. Law, §§ 540-63) ; supplementary proceedings, already treated (pp. 195-200) ; delivery of public boohs and papers by the prior incumbent to his successor (Pub. Off. Law, §80). CHAPTER XII. SPECIAL PROVISIONS EELATING TO PAETICTJLAE ACTIONS. I. Actions affecting real property. II. Matrimonial actions. III. Judgment-creditors' suits. TV. Decedents' estates. V. Joint debtors. VI. Action to recover a chattel. VII. Other miscellaneous rights of action. I. Actions Affecting Real Property. In such an action a lis pendens — i.e., a no- tice of the pendency of an action affecting real property — may be filed with the complaint in the office of the clerk of each county where the real property is situated, which notice must contain the names of the parties, the object of the action, and a brief description of the prop- erty to be affected thereby ; such notice may be filed before service of the summons, but must be followed by personal service upon one of the defendants, or by the commencement of substi- tuted service, within sixty days after filing (§ 120). The notice is immediately recorded by the county clerk, and indexed in a partition action [279] 280 A HANDBOOK OF CIVIL PRACTICE. against all the parties, but in other actions only against specified defendants, in accordance with a direction which the plaintiff's attorney ap- pends at the foot of the notice (§ 122). The effect of this notice is of the highest importance : Constructive notice of the pendency of the ac- tion is thereby given, and any person thereafter acquiring an interest in or lien upon the prop- erty, from or under a defendant against whom the notice is indexed, takes such interest or lien subject to and bound by all proceedings in the action, including of course any final judgment therein (§ 121). An inchoate right of doM^er under a marriage occurring after the filing of the notice, and the interests of all persons born between the filing of the notice and the entry of the final judgment, are bound by the judg- ment in the action (§ 988). The notice may be canceled only after the action is settled, dis- continued or abated, or final judgment rendered against the party filing it and his time to ap- peal therefrom has expired, or in case plaintiff unreasonably neglects to proceed in the action (§ 123). In some actions, however, the notice may be cancelled upon depositing money or giving an undertaking when adequate relief can be secured thereby to the party who filed the notice (§ 124). A defendant may file a similar notice upon a counterclaim (§ 125). The expenses of the sale of real property, pursuant to a provision in a judgment in a par- tition action, and in a foreclosure action unless PKOVISIONS REGULATING PABTICTJLAR ACTIONS. 281 the judgment otherwise directs, include the pay- ment of taxes, assessments and water rates which are liens upon the property, and the re- demption of the property from prior sales therefor which have not become absolute; the referee or other officer making the sale is re- quired to satisfy such liens out of the purchase money (§§ 1062, 1087). A judgment affecting real property in any other county than where it is rendered must be entered in the clerk's office of such county (§ 500). Sales of real property under a judgment therefor must be made to the highest bidder; published notice of the time and place of sale must be given ; at the time of the sale the terms thereof must be made known, and if sold subject to any incumbrance, that fact must be declared (§ 986). The officer making the sale, or the guardian of an infant party, shall not purchase or be interested in a purchase of any of the property sold (§987). The testimony of a person may be taken, by deposition within the State, or by a commission without the State, for the purpose of perpetuat- ing it, upon the application of one who himself alone, or with his predecessors in title, has been in possession of real property (§ 316). Such testimony is taken upon notice to all persons having adverse interests, and may be received in evidence, in any subsequent action, if the witness is dead, insane or absent, against the 282 A HANDBOOK OF CIVIL PKACTICE. party taking it or against any person to whom notice of its taking was given (§§ 313-321). Ejectment is brought to recover specific real property adversely possessed. To his claim for possession the plaintiff may add a claim for damages suffered by reason of the withholding of the possession; such damages include the rents and profits, or the value of the use and occupation of the property within six years (§§ 990, 1011). The value of improvements made by a defendant in good faith while hold- ing under color of title must be allowed against the plaintiff's damages, but not beyond the amount of the damages (§ 1011). If after the lis pendens is filed a person purchases the prop- erty, that person may thereby make himself liable to plaintiff for the value of the use and occupation during the time he possessed the property, if plaintiff is unable to collect such damages from defendant (§ 1008). Any person entitled to the possession of land (except a widow seeking to enforce her dower interest) may be the plaintiff (§ 992). A mort- gagee is not entitled to possession and cannot sue in ejectment (§ 991). One or more of sev- eral joint tenants or tenants in common may maintain the action to recover his or their un- divided shares without joining the others ( § 993 ) . A deed is void when made by a grantor at a time when the land is held adversely (Eeal Prop. Law, § 260), but the grantee under such PBOVISIONS REGULATING PAKTICULAK ACTIONS. 283 a deed is given the right to bring ejectment in the name of the grantor (§ 994). A tenant in common or joint tenant may maintain the ac- tion against his co-tenant, but must prove an actual ouster, or a total denial of plaintiff's right (§ 1004). If the original plaintiff dies, pending the trial of the action, and different persons succeed to his right to damages, and to the property, the two rights may be severed and the action may be divided into two actions. The occupant must be made a defendant; if the land is unoccupied the action may be main- tained against the person exercising acts of ownership thereupon (§ 996). Any other per- son claiming title to or right of possession of the land as landlord, remainderman, or other- wise adversely to plaintiff, may be made a de- fendant (§ 996). A tenant six months or more in arrears of rent may be ejected in this species of action, but may secure a dismissal of the action at any time before the judgment-roll is filed by paying all the accrued rent with interest and costs (§§ 997, 999). The complaint should describe the land with reasonable certainty, as in a deed (Court Rule 240). Plaintiff's attorney may be required to show written authority to commence the action, or written ratification of his act in commenc- ing it (Court Rule 55). The issues of fact must be tried by a jury (§ 425). The judgment is conclusive as to the 284 A HANDBOOK OF CIVIL PRACTICE. title established upon the parties against whom it is rendered, and those claiming under them by title accruing after the filing of the lis pendens, or of the judgment-roll (§ 1009). A judgment upon default is likewise conclusive (§ 1010). An action for the partition of real property lies when two or more persons hold and are in possession of land, as joint tenants or ten- ants in common, and have an estate of inheri- tance, or for life, or for years therein; if the property cannot be partitioned without great prejudice to the owners, a sale thereof and par- tition of the proceeds, according to the respec- tive interests, may be decreed (§ 1012). No person other than a joint tenant or a ten- ant in common may be a plaintiff (§ 1018). A tenant by the entirety cannot bring partition (VoUaro v. Vollaro, 144 App. Div. 242), but the husband and wife may voluntarily make par- tition (Dom. Rel. Law, § 56). An infant may bring the action only upon written authority from the surrogate of the county, and the court may enter final judgment only when satisfied that the infant's interests will be promoted thereby (§ 1015). The validity of an apparent devise may be put in issue in an action brought by an heir at law for partition, who alleges that the devise is void; the action will lie although the devisee is in possession (§ 1016). All persons having an undivided share in pos- PKOVISIONS KEGULATING PARTICULAR ACTIONS. 285 session or otherwise, present or future, and ab- solute or contingent, must be made defendants ; also, every person having an inchoate right of dower, or whose existing dower right has not been admeasured (§ 1017). Provision is made for protecting creditors of a decedent in their right to have the proceeds of the real property applied to the payment of their claims, by com- pelling a deposit of such proceeds if the action has been brought within eighteen months from the grant of letters upon the estate of a de- cedent from whom plaintiff derived his title (§ 1045). At plaintiff's option, all persons may be made defendants who have a limited estate or a contingent or vested remainder or rever- sion in the entire property, or a creditor or other person having a lien or interest attach- ing to the entire property, and a final judgment may award to such defendant his entire right or interest (§§ 1021, 1074); and plaintiff may, at his election, join as defendants all persons having liens on undivided shares, but whether or not they are made parties, their liens upon partition of the property attach to the share set off to the party against whom the lien exists (§§ 1021, 1035). The student is referred to Abbott's Forms- of Pleading, Second Edition, for a full note on parties to partition actions in the chapter of complaints in partition. Where the summons is served by substituted service upon an unknown defendant, there must also be subjoined a statement of the object of 286 A HANDBOOK OF CIVIL PRACTICE. the action and a brief description of the prop- erty (Court Rule 52). The complaint describes the property as in a deed, and specifies the shares, interests and rights of the various parties therein, so far as they are known to the plaintiff (Court Rule 245). Issue may be raised by any defendant over the plaintiff's title, or over the title or in- terest of any co-defendant as alleged by plain- tiff or by such defendant; if a defendant ques- tions the title or interest of a co-defendant, he must serve his answer upon that defendant at least twenty days before the trial (§§ 264, 1022). The issues of fact raised in the answers must be triced by a jury and upon the pleadings, un- less an order stating the issues has been made by the court, in which case the jury's verdict is upon the questions stated in the order (§ 1023). In case of default, or where a party is an infant and no issue of fact is raised, the court, without a jury, or by a reference', must ascertain the rights of the respective parties before granting an interlocutory judgment ( Court Rule 246 ; Fayerweather v. Burling, 181 N. Y. 117). After trial of the issues, an inter- locutory judgment is rendered, Avhich states the rights of the various parties and directs a par- tition according thereto, unless it has been found that the property cannot be properly partitioned, in which case it is directed to be sold and the proceeds divided (§ 1024). PROVISIONS REGULATING PARTICULAR ACTIONS. 287 If partition be directed, three disinterested freeholders are appointed commissioners for such purpose (§ 1024). The commissioners proceed to divide the property into distinct parcels, and allot them according to the rights of the respective parties (§§ 1027-9). A full report of their proceedings is made to the court, and if confirmed by it, final judgment is ren- dered directing delivery of the possession to each party of the parcel allotted to him, which judgment is conclusive upon the parties, and all claiming under them (§§ 1030-5). The interlocutory judgment, if the property is incapable of an actual partition, directs a sale of the property and division of the pro- ceeds according to the rights of the respective parties (§ 1024). Before rendering such inter- locutory judgment the court must direct a refer- ence to ascertain whether any creditor not a party has a lien on any party's interest, unless an official search is produced which shows no such creditors (§ 1038). A dower interest in the entire property may be directed to be sold (§ 1049), and in such case the right of dower in the property is extinguished and the dowress becomes entitled to elect to receive a gross sum in satisfaction of the right, or to have one-third of the proceeds paid into court to be invested for her benefit (§ 1050). Similar provisions exist respecting dower interests in undivided shares (§ 1051). The inchoate right of dower of a married woman in the property sold may 288 A HANDBOOK OF CIVIL PRACTICE. be released to her husband (§ 1054). The officer making the sale files his report with the clerk, and if the sale is confirmed a final judgment is entered confirming it and directing the officer to execute proper conveyances and make proper division of the proceeds (§§ 1057-8). Shares of infants may be paid to the general guardian or directed to be invested (§ 1063). Shares of absent or unknown owners are paid into court to be retained for a period of twenty-five years, when a presumption of the death of unknoA\ni heirs is raised by statute (§§ 1064-6). Final judgment may be recorded as a deed (§ 1076). An action for dower must be commenced within twenty years, unless at the time of her husband's death the widow was an infant, in- competent or a prisoner ; damages for with- holding her dower may be asserted in the same action, but for a period of not more than six years (Real Prop. Law, §§ 460, 464). The oc- cupant of the land is a necessary party {id., § 461). The acceptance by the widow of a voluntary assignment of her dower bars the action {id., § 468). If the widoAv's right of dower is established as against the heirs at law, an interlocutory judgment is rendered appoint- ing a referee or three commissioners to ad- measure her dower right — {i.e., the right to have lands equal in value to one-third of the amount of real property of which her husband died seized set off to her for her life). The final judgment which confirms the report of the PROVISIONS REGULATING PARTICULAR ACTIONS. 289 referee or the commissioners either awards the widow a distinct parcel for life subject to the payment of all thereafter accruing taxes and charges, or provides that a smii fixed by the court equal to one-third of the rental value of the entire property be paid to her during life and be a charge upon the property {id., §§ 471-6). Damages for withholding dower may be included {id., § 464). If the widow so desires, she may elect to accept a gross sum in satisfaction of her dower interest; upon filing her written consent, to that effect, any de- fendant may be granted leave to pay it, and the .court thereupon ascertains its value and di- rects plaintiff to execute a release of her dower upon receiving the payment {id., §§ 480-1). The judgment in an action for foreclosure of a mortgage must direct the sale of the mort- gaged property or of so much as is necessary to satisfy the mortgage debt, with the expenses of the sale and the costs of the action (§ 1082). After foreclosure has been begun, no other ac- tion can be commenced or maintained Avithout leave of court to recover any part of the mort- gage debt (§ 1078). Any person who is liable to plaintiff for tho payment of the debt secured by the mortgage may be made a defendant (§ 1079). The people of this State may be made a party defendant if possessing an interest in or lien on the mort- gaged property, and the public service commis- 19 290 A HANDBOOK OF CIVIL PRACTICE. sion must be made a party defendant in an ac- tion to foreclose a mortgage on a public utility {id.). All persons having liens subordinate to the lien of the plaintiff's mortgage must be made parties defendant, in order that a sale of the property may extinguish their interest ; the holder of a prior overdue mortgage may be joined as a defendant, and the amount of his prior lien ascertained and directed to be paid and foreclosed. The student is referred to a copious note in Abbott's Forms of Pleading, Second Edition, in the chapter on Foreclosure, wherein are given the indispensable, necessary and proper parties defendant in foreclosure actions. Where a person is made defendant against whom no personal claim is made, a notice sub- scribed by plaintiff's .attorneys setting forth th^, general object of the action, and a brief de- scription of the property affected by it, and that no personal claim is made against such defend- ant, may be served with the summons ; if such a notice is served and the defendant unreason- ably defends the action, costs may be awarded against him (§ 1478). The complaint must state whether any other action has been brought to recover any part of the mortgage debt, and if so, what part, if any, has been collected (Court Eule 255). If any such action has been brought, execution upon a final judgment therein must have been issued PROVISIONS REGULATING PARTICULAR ACTIONS. 291 and returned wholly or partly unsatisfied be- fore an action can be commenced to foreclose the mortgage (§ 1077). A deficiency judgment so-called {i.e., a di- rection that the residue of the debt remaining unpaid after the sale of the mortgaged prop- erty and the application of the proceeds to the payment of the debt) may be entered against any defendant who is liable to plaintiff for the payment of the mortgage debt, whether he has signed the bond or thereafter assumed the pay- ment of the mortgage debt (§ 1083). Plaintiff cannot take final judgment until twenty days after he has filed a notice of pen- dency of the action, which must state the par- ties, the object of the action, a description of the property, the date and parties to the mort- gage, and the time and place of recording it (§ 1080). If answers are interposed, the trial is had by the court without a jury. In case of the defend- ant's default in answering, the court may di- rect a reference to compute the amount of the mortgage debt, and if any party is an absentee or an infant, the referee is also directed to take proof of the facts alleged in the complaint and to examine the plaintiff or his agent under oath as to any payment (Court Eule 256). Upon the decision, or report, final judgment of fore- closure and saJe is entered, which describes the 292 A HANDBOOK OF CIVIL PRACTICE. particular boundaries of the property to be sold, fixes the sum due upon the mortgage, and the costs, directs a sale and appoints the officer to make the sale, directs the payment by the offi- cer of the expenses of the sale and the costs, and the amount so found due, and also provides for the temporary disposition of any surplus, and an award of a deficiency judgment if the proceeds of the sale prove insufficient, and ad- judges that the interests and liens of all the parties to the action are cut off by the sale (See Court Eules 259, 261; § 1085). The method of sale and what are to be in- cluded in the expenses of the sale have already been mentioned at the beginning of this chap- ter (See § 1087). The surplus realized is paid into court for the benefit of the persons entitled (Court Rule 261), and surplus money proceed- ings are thereafter instituted by which the rights thereto are determined {id., §§ 262-4). The conveyance executed by the officer mak- ing the sale vests in the purchaser the estate which the mortgagee would have acquired had the equity of redemption been foreclosed in his favor; the conveyance is valid as though exe- cuted by the mortgagor and mortgagee, and is an entire bar against each of them and against all parties to the action properly summoned and all persons claiming an interest in the. prop- erty acquired after the filing of the lis pendens (§ 1085). The officer making the sale must file with the clerk his report of sale within thirty PROVISIONS REGULATING PARTICULAR ACTIONS. 293 days after its completion, showing his disposi- tion of the proceeds accompanied by vouchers from the payees (§ 1088). The persons liable to plaintiff for a deficiency upon the sale should be made parties defendant if they can be personally served. No subse- quent action can be commenced against any such person, if he was not joined in the fore- closure action, without leave of court (§ 1078), and such leave will be refused unless his non- joinder in such action can be properly excused. His non-residence and absence from the State furnish a complete excuse, for no jurisdiction could be obtained by substituted service where his liability is merely to pay any deficiency (which is a personal claim only and cannot be asserted in a type of action wherein an attach- ment is not obtainable). An action for foreclosure of a mechanic's lien may be brought in any court which has-juris- dit3tion of an action founded on a contract for an amount equal to the lien (Lien Law, § 41). Under this provision a mechanic's lien of five hundred dollars or 'less may be foreclosed in the municipal court of the City of New York, for two hundred dollars or less in justices ' courts. The procedure in an action brought in a court not of record differs considerably from the pro- cedure when the action is brought in a court of record. 294 A HANDBOOK OF CIVIL PRACTICE, When the action is brought in a court of record, the statutory provisions relating to the foreclosure of mortgages and the sale of the property and distribution of the- proceeds ajt- ply {id., § 43) ; as parties defendant there must be joined all subsequent lienors by judgment, mortgage, mechanic's lien or otherwise, and all mechanic's lienors of equal or prior right {id., § 44). The court may determine the equities between all the parties to the action as well as the priority of the different liens {id., § 45). In a court not of record the summons with a verified complaint must be personally served upon the owner at least eight days before the return day {id., § 46), but in case of his absence from the State or concealment therein, such service may be made by leaving a copy of the summons at his last place of residence, and pub- lishing a copy thereof once a week for three successive weeks {id., § 47). In case of de- fendant's default, judgment may be rendered for the amount claimed {id., % 48). An issue may be raised by verified answer filed on the return day of the summons, and the issue tried as other issues in the same court {id., §§ 48-9). Execution issued upon such a judgment shall direct the officer to sell the title or interest of the owner in the premises charged with the lien {id., § 50). An action to foreclose a lien on a public im- provement may be brought in the same manner PROVISIONS REGULATING PARTICULAR ACTIONS. 295 as upon any other meclianic's lien {id., § 42). If the lien is established, the judgment directs the municipal corporation defendant to pay the lienors, in the order of their priority and to the extent of the sums found due them, so much of the amount then due from the municipal cor- poration to the contractor as will satisfy the liens but not exceed the amount due to the con- tractor {id., § 60). II. Matrimonial Actions. In any one of the three matrimonial actions, if the summons is served without the complaint it must bear an inscription on its face, specify- ing the particular nature of the action — ^viz., whether an "action to annul a marriage" or an "action for a divorce" or an "action for a separation"; otherwise plaintiff will not be allowed to take judgment by default if defend- ant fails to appear or plead in the action (§ 1167). When a married woman commences one of these actions, she is deemed a resident within the statutory requirements if she dwells within the State at the time of such commencement, although her husband resides elsewhere (§ 1166). A reference in any one of these actions can- not be granted upon the defendant's default, but proof of the facts must be made in open court and the evidence written out and filed 296 A HANDBOOK OF CIVIL PRACTICE. with the judgment-roll (Court Kule 282). The court may exclude the public from the hearings, and direct the sealing up of the evidence (id.). A reference on ^consent of the parties may be granted or refused by the court (§ 465), and when granted must be made to a person not nominated or agreed to by either party, and only after the usual proof of service of the sum- mons and complaint has been presented (Court Rule 281). During the pendency of an action for di- vorce or for separation, the court may, in its discretion, require the payment by the husband to the wife of alimony and counsel fee [i.e., for the "v^ife's support, and to enable her to carry on or defend the action), and a sum for the education and support of the children of the marriage (§ 1169). So, the final judgment therein must make similar provision for the custody, support and education of the children, and for the support of the Avife if she is the plaintiff and succeeds in the action (§ 1170). The court retains power to modify the final judgment with respect to these matters, and if the plaintiff wife remarries must annul the direction for her support (§§ 1159, 1170). For the purpose of enforcing such an order or judg- ment, the court may require security to be given; or upon the husband's default in making the payment, the court may make an order sequestrating his personal property and the rents and profits of his real property, and ap- PROVISIONS REGULATING PARTICULAR ACTIONS. 297 point a receiver thereof (§ 1171). If such sequestration proves ineffectual, or appears useless, the husband may be punished for non- compliance with the order or judgment direct- ing payment of alimony and for the support of children of the marriage, as for a contempt of court and fined or imprisoned (§ 1172). Im- prisonment under such an order or judgment may continue not more than three months for the non-payment of a sum less than five hun- dred dollars, and six months if exceeding that sum (Civil Rights Law, § 72) ; punishment for failure to pay an instalment is not a bar to further punishment for failure to pay subse- quently accruing instalments (§ 1172), super- seding the decision in Peo. ex rel. Levine v. Shea, 201 N. Y. 471. No demand of any kind need now be made upon the husband before taking the proceeding to punish him for dis- obedience of the order (id.), but of course the order requiring payment must have been per- sonally served upon him. The provision for payment of alimony in a judgment against a non-resident defendant based on substituted service of the summons and entered on his de- fault is a nullity (Baylies v. Baylies, 196 App. Div. 677). An action to annul a marriage, i. e., to have it judicially declared void either from the be- ginning or from the date of the adjudication, may be brought by either party on the grounds : 298 A HANDBOOK OF CIVm PRACTICE. 1. That one or both of the parties had not attained the age of legal consent, and have not freely cohabited for any time after attaining such age (§ 1133). The action may be brought by the infant, a parent or guardian, or next friend; it cannot be brought by the one of the parties who was of the age of consent when the marriage was contracted {id.). Although marrying with the consent of the parents, an infant under eighteen may sue for annulment upon reaching that age, and notwithstanding prior cohabitation (Kruger v. Kruger, 137 App. Div. 289). The children of such a marriage are the legitimate children of both parents (§ 1135). If the action is brought by a next friend, the court in its discretion may refuse annulment (§ 1145). 2. That a former husband or wife of one of the parties was living and the former marriage was in force ; if at least one of the parties con- tracted the subsequent marriage in good faith, the issue thereof are deemed for all purposes legitimate children of the parent competent to contract the marriage (§§ 1134-5). This action may be maintained by either of the parties to the later marriage, or the party to the former marriage who was not a party to the later one (Stokes V. Stokes, 198 N. Y. 301). In deter- mining the good faith of a party, the absence for five years, which creates the statutory per- mission for the later marriage, does not estab- PROVISIONS EEGULATING PAKTICTJLAE ACTIONS. 299 lish good faith of itself, and diligent inquiry is necessarily to be shown (id.). 3. That one of the parties was an idiot or lunatic ; may be brought by any relative or next friend (§§ 1136-8). After the death of the lunatic, an action to annul may be brought by any relative having an intel-est (§ 1137). 4. That the consent of one of the parties was obtained by force, duress or fraud; may be maintained by the party whose consent was so obtained, or by the parent, guardian or any relative of such party, but only if the parties have not voluntarily cohabited with full knowledge of the fraud if based on that ground (§ 1139). The fraud justifying a judgment of annulment must go to the very essence of the marriage contract; fraudulent representations as to social position, wealth, and the like, will not suffice (Fisk v. Fisk, 6 App. Div. 432). 5. That one of the parties was physically in- capable of entering into the marriage state for an incurable cause (may be maintained against the one incapable within five years from mar- riage; or may be maintained by the one in- capable, provided he was unaware of the in- capacity, or of its incurable character) (§ 1141). 6. That the marriage was an incestuous one. Although the marriage is void ah initio, the court will entertain the action and declare the invalidity (Stein v. Dunne, 119 App. Div. 1). In no case shall judgment annulling a mar- 300 A HANDBOOK OF CIVIL PRACTICE. riage be rendered ^q}on default without proof of the facts showing the ground therefor; the declaration or confession of either party is not alone sufficient as such proof (§ 1143) ; the court must, upon application of either party, or may of its own motion, send the issues of fact to be tried by a jury unless founded on a charge of physical incapacity (§ 1142). The court may require payment of temporary alimony and the expenses of the action when the woman is the defendant (Higgins v. Sharp, 164 N. Y. 4), but not where she is the plaintiff (Jones V. Brinsmade, 183 id. 258). If the ac- tion is brought by the parent or guardian of the infant spouse, both parties to the marriage are necessary defendants (Ferb v. Fero, 62 App. Div. 470). Final judgment is entered after the expira- tion of three months from the entry of an in- terlocutory judgment, as in an action for di- vorce (§§1175-6). An action for an absolute divorce, dissolving the marriage (with the effect that the parties no longer continue to be husband and wife, and nothing remains of the marriage status, in the way of rights and duties from one to the other, save those prescribed by statute, or directed by the judgment) may be maintained against the party to the marriage guilty of adultery (§ 1147) : PROVISIONS REGULATING PARTICULAR ACTIONS. 301 1. Where both parties were residents of the State when the offense was committed. 2. When the parties were married within the State. 3. Where the plaintiff was a resident of tho State when the offense was committed, and is a resident when the action is commenced. 4. Where the offense was committed within the State, and the plaintiff, Avhen the action is commenced, is a resident. The court has no jurisdiction to decree a di- vorce except in the cases enumerated in the statute, and the complaint must show and the proof must establish that the jurisdictional re- quisites exist. Service of the summons should be made by one who knows the defendant, or such a person should accompany the process server; in case of default the court may and usually does re- quire particular proof of the identity of the de- fendant with that of the one served (Court Rule 53, subd. 9). If the defendant does not appear or answer, plaintiff must establish the material allegations of the complaint before he is entitled to judg- ment, and, in addition thereto, must (by his own testimony or otherwise) prove that no di- vorcQkhas been rendered against him in the State (§ 1150). The defendant's answer need not be verified, notwithstanding the verification of the com- 302 A HANDBOOK OF CIVIL PRACTICE. plaint, unless it includes a counterclaim as to which it must then be verified (§ 1148). Con- donation, consent, and delay in commencing the action, are affirmative defenses, which de- fendant must plead if he desires to establish them (McCarthy v. McCarthy, 143 N. Y. 239; Lowenthal v. Lowenthal, 157 N. Y. 242). A counterclaim for divorce or separation may be interposed (§ 1168). The issue of adultery, when raised by the an- swer, must be tried by a jury, if either party makes application therefor before the trial, or the court so directs (§ 1149). The remaining issues must be tried by the court without a jury, except that the legitimacy of children raised by the husband plaintiff shall also be tried by the jury (Court Eule 279). A co-respondent may be served by ^ther party with his or her pleading; in such case, and within twenty days thereafter, the co- respondent may appear and defend the issues so far as they affect him ; or he may at any time before entry of judgment appear on his o\^ motion and defend (§ 1151). Although plaintiff establishes the fact of the defendant's adultery, he is nevertheless not en- titled to a decree of divorce (a) if the adultery was committed by his procurement or conniv- ance, or (b) has been forgiven, (c) if he has voluntarily cohabited with the defendant after knowledge of the adultery, (d) if five years have elapsed between its discovery and the PK0VISI0N5 KEGTJLATING PAETICTJLAB ACTIONS. 303 commencement of the action, or (e) where plaintiff has also been guilty of adultery (§ 1153). In this action, the plaintiff and defendant are entirely incompetent as witnesses against the other, except to prove the marriage and dis- prove the allegation of adultery (§ 349). Plain- tiff therefore cannot prove his residence, when that fact is material (Dickinson v. Dickinson, 63 Hun, 516). The plaintiff, however, on the trial, if met by any one of these affirmative de- fenses, is allowed to negative the existence of a previous divorce, and to further negative for- giveness and connivance, procurement, volun- tary cohabitation with knowledge of the fact, and the lapse of five years since discovery by him (id.) ; in case of defendant's default in an- swering, plaintiff must establish these nega- tives, either by means of his affidavit, or by allegations thereof in his verified complaint (Court Rule 277). In an attempt to further check fraudulent di- vorces, the legislature requires that there be first entered an interlocutory judgment, and that after three months it becomes the final judgment as of course, unless the court's deci- sion requires and the interlocutory judgment provides for the entry of a final judgment or un- less for sufficient cause the court in the mean- time shall otherwise have ordered (§§ 1175-6). During the three months' interim the marriage relation continues. 304 A HANDBOOK OF CIVIL PRACTICE. After securing a decree of absolute divorce, plaintiff may marry again, but the defendant is forbidden to marry during the plaintiff's life; the court, however, is given poM'^er to withdraw this prohibition after five years and upon proof of defendant's exemplary conduct meantime (Dom. Rel. Law, § 8). If the wife is the plaintiff, the legitimacy of any child born or begotten prior to the com- mencement of the action is not affected by the judgment; such judgment may require the de- fendant to provide suitably for the education and maintenance of the children of the mar- riage, and for plaintiff's support, but this pro- vision may at any time thereafter, if applica- tion therefor be made by leave of court, be annulled, varied or modified, and must be an- nulled as to further payments to plaintiff on proof of her marriage after judgment (§§ 1155, 1159) ; the wife's right to dower existing down to the time of the judgment remains unaffected (§ 1156). If the husband is the plaintiff, the legitimacy of any child 'born or begotten before the com- mission of the offense is not affected by the judgment, but the legitimacy of any other child may be determined as one of the issues if its illegitimacy be distinctly alleged in the com- plaint (§ 1157; .Court Rule 279). Legitimacy of all children begotten before the commence- ment of the action is presumed in the absence PBOVISIONS REGULATING PARTICULAR ACTIONS. 305 of contrary proof (§ 1157). The wife's dower interest in plaintiff's real property and her right to a distributive share of his personalty are alike destroyed by the judgment in favor of the husband (§ 1158). Persons other than the pa^rties or their at- torneys are not permitted to examine the' plead- ings or testimony on file without an 'order of court (Court Rule 278). An axjtion to procure a separation (a limited divorce, which affects some of the marital rights or obligations, but leaves the marriage status otherwise unaffected) may be maintained by either party to a marriage because of (a) cruel and inhuman treatment; (b) such conduct as renders continuance of cohabitation unsafe and improper; (c) abandonment of the plaintiff, or (d) the neglect or refusal by the defendant hus- band to provide for the plaintiff (§ 1161) ; but in order that the court may entertain the ac- tion, either (a) both parties at the time of its commencement must be residents of the State, or (b) the marriage must have been solemnized within the State, and the plaintiff a resident when the action is commenced, or (c) the par- ties must have become residents of the State for a term of one year, and the plaintiff is a resident when the action is commenced (§ 1162). The complaint must show these necessary jurisdictional facts; it must also specify par ticularly the nature and circumstances of the 20 306 A HANDBOOK OF CIVIL PRACTICE, defendant's misconduct, with time and place of each act complained of (Court Rule 280). Without these specifications the complaint is insufficient (Otton v. Otton, 196 App. Div. 403). The answer may set up by way of justifica- tion, the plaintiff's misconduct, of a character which would entitle defendant to a decree of separation; if that defense is established, the defendant is entitled to judgment in the action (§ 1163). The defendant may also set up a cause of action for a divorce or a separation, as a counterclaim (§ 1168). A party is not entitled as of right to a trial by jury (Packard v. Packard, 88 App. Div. 339), but the court may, in its discretion, direct a jury trial of one or more questions of fact raised in the action (§ 430). Final judgment may separate the parties from bed and board forever, or for a limited time ; upon the joint application of the parties, with proof of their reconciliation, the court may revoke its judgment at any time (§ 1165). A final judgment in favor of the wife may direct that defendant provide for her suitable maintenance, and for the education and main- tenance of the children (§ 1164). III. Judgment Creditors' Suits. The action is somewhat in the nature of sup- plementary proceedings; it may, however, be PROVISIONS REGULATING PARTICULAR ACTIONS. 307 ancillary thereto and brought when the debtor or other person, as a witness upon supplemen- tary proceedings, discloses that property exists which can be reached in the action. After re- turn unsatisfied of an execution issued to the proper county upon a judgment, the judgment- creditor may bring the action to reach and apply non-leviable assets of the judgment-debtor, or to set aside an apparent bar and reach leviable assets (§§ 1189-91). The execution upon plain- tiff's judgment must have been issued to the sheriff of the county where the judgment-debtor resides, or if he is a non-resident, to the sheriff of the county where he has an office for the regu- lar and personal transaction of business, or if he has no such office, to the sheriff of the county where the judgment-roll is filed (§ 1190). A temporary injunction may be issued re- straining the transfer by the judgment-debtor or the payment to him of any property which might be applied to satisfy plaintiff's judgment (§ 1193). A temporary or permanent receiver may be appointed, to whom the debtor or any other defendant may be directed, to deliver any property or documents relating thereto, and to execute any necessary instrument of transfer (§ 1194). The debtor or other defendant may be compelled to appear before the court or a referee and be examined under oath concerning the debtor's property (§ 1195). This action will not lie against a domestic corporation, and 308 A HANDBOOK OF CIVIL PRACTICE. the surplus income from a trust created by an- other for the debtor's benefit cannot be reached in such action (§ 1196). A judgment may be sued upon by the judg- ment-creditor and a new judgment obtained (a) where ten years have elapsed since it was docketed, or (b) if it was rendered, upon de- fendant's defaijlt in answering and appearing, and upon substituted service of the summons, or (c) if the court in which the second action is brought has previously made an order upon notice to the judgment-debtor granting leave to bring the second action (§ 484). An assignee of a judgment may sue on it at any time. A new judgment is desirable when because of the lapse of ten years from its rendition the original judgment ceases to be or to become a lien on the judgment-debtor's real property (§ 510). IV. Actions Affecting Estates of Decedents. A creditor of a decedent may bring an action against the persons who have received, as legatees, next of kin, or husband or wife, any of the decedent's personal property or the pro- ceeds of its sale, and in such action may recover satisfaction of his debt to the extent of such assets as were received by the defendants (Dec. Est. LaM^, § 170). The creditor may sue one or all of the persons to whom distribution of such assets was made ; if brought against all of them PROVISIONS REGULATING PARTICULAR ACTIONS. 309 jointly, the amount recovered must be appor- tioned among the defendants in proportion to the respective amounts received by them; if brought against one of them severally, the re- covery caimot exceed the amount which the creditor would have been entitled to recover against him in a joint action (id., §§ 171-3). A similar action may be maintained by a creditor against the heirs of an intestate, or devisees of a testator, but only in case one year has elapsed since the decedent's death and no letters have been granted on his estate, or where eighteen months have elapsed since letters tes- tamentary or of administration were granted upon his estate (id., §§ 101, 177). During such period the- creditor's remedy is by a proceed- ing in the surrogate's court to have such real estate sold and applied to the payment of debts (Surr. Ct. Act, §§ 233-250). Such an action must be brought jointly against all the heirs at law or all the devisees, and the recovery appor- tioned among them (Dec. Est. Law, §§ 179-180). It is necessary as against the heirs at laAv for plaiirtiff to establish that the decedent's per- sonal assets were insufficient to pay plaintiff's debt {id., § 181). An action to establish a, will may be brought in the"Supreme Court where a will of personal property has been duly executed by a non-resi- dent according to the laws of his residence, and the case is not one where the surrogate's court 310 A HANDBOOK OF CIVIL, PEACTICB. can admit the will to probate; or where a will executed in any such manner as to entitle it to probate cannot be obtained from another juris- diction, or has been lost or destroyed by acci- dent or design before probate (Dec. Est. Law, § 200). The contents of such a will must be incorporated into the final judgment establish- ing it, which judgment the surrogate may Tecord and letters testamentary must be granted thereupon {id., §§ 201-3). The pro- visions of a lost or destroyed will must be clearly and distinctly proven by at least two credible witnesses, a correct copy or draft being equivalent to one witness {id., § 204). The validity, construction or effect of a devise of real property within the State may be made the subject of an action in like manner as if in a deed, provided, however, it has not been pre- viously determined by the surrogate {id., § 205). An action to recover his share of the de- cedent's estate may be maintained hy an after- horn child against whom, for that reason, the will is a nullity (Dec. Est. Law, § 28). A legatee, or next of kin, may, after the ex- piration of one year from the granting of letters testamentary, or of administration, maintain an action against, the executor, or administra- tor, after refusal by the latter to pay the legacy, or distributive share {id., § 146). PROVISIONS REGULATING PARTICULAR ACTIONS. 311 V. Joint Debtors. An action against joint debtors may proceed to final judgment although some oiily of the defendants have been served or have appeared (§ 1197). In such case, the judgment is con- clusive evidence of the liability of each defend- ant served or who appeared, and is binding upon the joint property of all the defendants and the individual property of the defendants served or appearing (§§ 1198-9). The judg- ment-creditor's attorney must issue the execu- tion on the judgment with an indorsement thereon properly limiting its enforcement (id). The clerk, upon docketing the judgment, must endorse the words "not summoned" against the name of each defendant not served and who has not appeared (§ 1200). Upon failing to obtain satisfaction of this original judgment, the plaintiff may thereafter bring an action against any one or more of the defendants who were not summoned in the orig- inal action (§ 1185). The complaint must be verified, and must allege that the judgment is not paid, and state the sum then remaining un- paid (§ 1186). The answer may contain, in addition to the defenses which might have been set up in the original action, objections to the judgment, and defenses and counterclaims thereafter arising (§ 1187). Joint debtors who are not co-partners may compound separately, and the composition dis- 312 A HANDBOOK OF CIVIL PRACTICE. charges only the debtor making it; this modi- fies a common law i-"ule that such a composition by a joint debtor would inure to the benefit of all and extinguish the debt (Debtor & Creditor Law, §§ 230-3). VI. Action to Recover a Chattel (Replevin). In the actions of conversion and trespass de bonis asportatis, the plaintiff seeks the value of the chattels by way of indemnity, and a satis- fied judgment in either of these actions operates to vest title thereto in the defendant. But in this action to recover the chattels plaintiff is seek- ing their possession, with damages for the de- tention only; he will accept their value as the necessary alternative if possession cannot be obtained. Defendant's disposal of the chattel before action commenced, even though known to plaintiff, does not defeat this action, which may be chosen because of the application of a rule of damages more favorable to plaintiff in the particular case than would be applied if the action were conversion (Nichols v. Michael, 23 N. Y. 264). The measure of damages in these actions is compared in Abbott's Forms of Pleading, second edition, to which the student is referred. The common law action of replevin is of con- siderable antiquity; something of its history is given in the opinion of the court in Manning V. Keenan, 73 N. Y. 45; the present statutory action, denominated an action to recover a PROVISIONS REGULATING PAETICXJLAR ACTIONS. 313 chattel, is substantially a substitute for the old common law action of replevin (Griffin v. Long Isl. R. Co., 101 N. Y. 348), and is more com- monly called an action of replevin. Since plaintiff demands judgment award- ing him the possession of the chattel, he must have had a legal right to such possession at the commencement of the action, which must be both alleged and proven (Wood v. Orser, 25 N. T. 348). If plaintiff was the owner, it is sufficient to merely so allege in his complaint, but if his right of possession rests on some right other than ownership (such as, lienor, lessee or bailee) the facts showing the special property right must be alleged (Court Rule 270). An allegation of plaintiff's ownership raises a presumption that he is entitled to pos- session; a mere allegation that defendant "wrongfully detains" from plaintiff the speci- fied chattel, without alleging plaintiff's owner- ship or special property, is wholly insufficient (Scofield V. Whitelegge, 49 N. Y. 259). An assignee of the property subsequently to the wrongful taking or detention may maintain the action (§ 1091). The action is founded either upon defend- ant's wrongful taking (known as replevin in the cepit), or upon his wrongful detention (replevin in the detinet). In the first situa- tion, it is. sufficient to merely allege that de- fendant wrongfully took the chattel, without setting forth the facts showing that the taking 314 A HANDBOOK OF CIVIL PRACTICE. was wrongful (Court Eule 271). If the action is founded on wrongful detention, the complaint must set forth facts showing that the detention was wrongful {id.). It is plain that this remedy is not available unless the chattels are capable of identification. The complaint, as the foundation of the right to require the sheriff to take them, should par- ticularly describe the chattels with their marks of identification. The action cannot be maintained if (a) the chattel was taken under a valid warrant against plaintiff to collect a tax, assessment or fine, or (b) if seized under an execution or attachment, against plaintiff or (c) against a third person and plaintiff did not have the right to reduce it to possession (§ 1089). The plaintiff may cause the chattels to be replevied during the pendency of the action, either before or after the service of the sum- mons ; the practice in so doing has already been discussed {ante, pp. 120-123). Failure to require such a seizure, or the sheriff's failure to make it when required, does not affect the action (§ 1116). Defendant may justify on the ground that a third person was entitled to the chattel, with- out connecting himself with the latter 's title (§ 1093). At common law he could not do so when charged with wrongful taking (Griffin v. Long Isl, E. Co., 101 N. Y. 348). The issues are tried by a jury (§ 425). The PKOVISIONS REGULATING PARTICULAR ACTIONS. 315 verdict must fix the damage of the prevailing party, and must fix the value of the chattel unless the prevailing party has it in his pos- session (§ 1120). Final judgment for plaintiff awards possession of the chattel to him, and, unless it is in his possession, awards its value to be paid by defendant if possession is not given (§ 1124). Execution follows the terms of the judgment, and requires the sheriff to deliver the chattel as awarded by the judgment (§ 644) or if not found in his county to satisfy the sum awarded as its value out of the property of the judgment debtor (§ 1126). VII. Provisions Relating to Other Miscella- neous Rights of Action. An action by a resident, or domestic corpora- tion, against a foreign corporation may be maintained for any cause of action; an action by a non-resident or foreign corporation against a foreign corporation may only be maintained (a) for damages for breach of a contract made within the State or relating to property situated within the State at the time of its making; (b) to recover real property located or a chattel replevied within the State ; (c) upon a cause of action arising within the State, unless affecting real pro'perty outside of the State; (d) where a foreign corporation is doing business within the State (Gen. Corp. Law, §§ 46-7). 316 A HANDBOOK OF CIVIL PKACTICE. An action by a private person upon the official bond of a public officer (which reads to the people of the State) cannot be prosecuted without leave of court first obtained. This leave may be obtained without notice upon affi- davits showing the ground of action existing in favor of the applicant (Pub. Off. Law, §§ 20- 28). An action to recover damages for a wrongful act, neglect or default, by which the decedent's death was caused, may be maintained by the executor or administrator ; such action must be brought within two years after the decedent's death, and the damages recovered after paying the decedent's funeral expenses, the expenses of the action, and the commissions of the per- sonal representative, are exclusively for the benefit of the wife or husband and next of kin (Dec. Est. Law, §§ 130-3). The damages awarded may be such a sum as the jury deems to be a fair and just compensation for the pecuniary injuries resulting to the persons for whose benefit the action is brought; the clerk must add to the amount awarded interest from the decedent's death {id.). At common law, no action of this character existed, and the right of action created by these sections refers only to a death so " caused within the State ; it is pre- served from abrogation by the legislature (Const, Art. 1, § 18). PROVISIONS REGULATING PARTICULAR ACTIONS. 317 An action of slander may be maintained by a woman upon words imputing unchastity to her without alleging or proving special damages ( Court Kule 97 ) . At common law no such action would lie without showing special pecuniary damages resulting. An action may be maintained by a taxpayer of the particular locality to prevent waste of public funds or property (Gen. Munic. Law, § 51). INDEX. [Figures refer to Pages.] ABATEMENT of actions, 142-143. ACCOUNT, when actions are barred, 30. ACCOUNTING by executor or administrator, 240-242. ACKNOWLEDGMENT OF DEBT, under Statute of Limi- tations, 23-24. of written instruments, effect of, 138-139. ACTIONS, CIVIL, defined, 21. when barred by Statute of Limitations, 29-32. when right of, assignable, 34. procedure in ordinary course of, 33-212. joinder of, 60. provisions regulating place of trial of, 140-142. bringing to trial, 156-157. placing on calendar, 157. preferences among, 157-158. mode of trial in> 158-174. - costs in, 179-182. appeals in, 200-212. procedure in, in courts not of record, 213-217. ADMINISTRATION OF ESTATES, See Executok and Ad- ministrator. ADMINISTEATOB, when appointed, 233. priority of appointment of, 233. procedure upon appointment of, 234. issuing limited letters to, 234. security required of, 234. See Executor and Administrator and Surrogates' Courts. ADMINISTKATOE, TEMPORARY, when appointed, 234. powers and duties, 235. ADMINISTRATOR WITH WILL ANNEXED, when ap- pointed, 231-232. powers and duties of, 231. in what priority letters to, may issue, 232. ADMISSION, of genuineness, how secured, 137. [319] 320 A HANDBOOK OF CIVIL PRACTICE. AFFIDAVIT, when statements in not accepted by court, 112, 113, 150. using verified pleading as, ,112. when copies served on motion, 150-151. AFFIRMATIVE DEFENSES, what are, 78-80. AGENT, when may sue, 34. ALIMONY AND COUNSEL FEE, in matrimonial actions, pending trial, 296. AMENDMENT of pleadings, 89-91. ANCILLARY LETTERS, when issued, 235. ANNULMENT OF MARRIAGE, ACTION FOE, right of jury trial in, 159. when maintainable, 297-899. procedure in, 299-300. ANSWER, contents of, 75-83. effect of denials in, 75. illustrations of character of denials in, 76. new matter in, 78-80. counterclaims in, 80-83. form of pleading statute of limitations in, 28. APPEALS, generally, 200-205. to Appellate Division, 205-207. to Court of Appeals, 207-211. to Appellate Term, 211-212. how taken, generally, 200-201. time of taking, 201. stay of proceedings pending, 202. on what papers heard, 202-203. certification of record on, 203. review of exceptions on, 204-205. what questions reviewed on appeal, by Appellate Divi- sion, 205-206. id. by Court of Appeals, 209. from courts not of record,. 216-217. from surrogate's court, 226-227. APPEARANCE by defendant, effect of, 55. how made, 55. form of, 56. may contain demand for complaint, 56. in surrogate's court, 222. INDEX, 321 APPELLANT, defined, 200. who may be, 200. APPELLATE DIVISION, organization and jurisdiction of, 6-7, 205-206. appeal to, on what heard, 202-203. time of taking appeal to, 206. judgment after decision by, 206-207, order of reversal by, what must be stated in, 207. APPELLATE TEEM, how constituted, 211. jurisdiction of, 211. time of taking appeal to, 212. APPRAISAL, of estates, 237. ARBITRATION, defined, 21. effect of, 21. ARREST, ORDER OF, when obtained, 102. of woman for wilful injury only, 104. by whom granted, 104. contents of, ] 04-105. upon what papers, 105. how vacated, 105. imprisonment under, 105. efficiency of remedy, 106-107. ASSESSMENT OP DAMAGES, offer permitting, at speci- fied sum, 125-126. ASSIGNMENT, what claims capable of, 34. who real party in interest after, 34. ASSOCIATION, VOLUNTARY, how to sue and be sued, 38. ATTACHMENT OF PROPERTY, when essential to validity of judgment, 52. ATTACHMENT, WARRANT OF, when obtained, 110-111. upon what papers granted, 111-113. by whom granted, 113. contents of, 113-114. how executed, 114-117. how vacated or discharged, 117-118. ATTORNEYS AT LAW, admission of, how regulated, 5-18. appearance of, 18. suspension of, 18. statutory lien of, 18. method of enforcement of lien, 19. 322 A HANDBOOK OF CIVIL PRACTICE. ATTORNEYS AT 'LAW— Continued. employment and discharge of, 19. certain acts of, prohibited, 19-20. powers of, 19-20. assigned to represent poor person, 35. to produce written authority to act, 56. service upon, in an action, 153-15G. liable until security for costs given, 125. competency as witness, 177. may satisfy judgment, 194. BILL OF PARTICULARS, defined, 95. when awarded, 95-97. BOND, ACTION UPON, of public officer, 316. CASE ON APPEAL, defined, 203. of what consists, 203. certification of, 203-204. CEKTIEIED COPY, admissible in evidence, 138. CERTIORARI, 248-254, 260-263. See, also, State Writs. CHALLENGE, right of, to juror, 162. CHANCERY, New York Court of, abolished, 1. CHANGE OP NAME, proceedings for, 271-272. CHARGE TO JURY, function of, 171. exceptions to, 171. requests to, 171. CHATTEL, ACTION TO RECOVER, See Replevin. CHILD, ACTION BY AETER-BORN, to obtain share of estate, 310. CITATION, defined, 221. contents of, 221. how served, 221-222. on probate of will, to whom directed, 229. CITY, See Municipality. CITY COURT OF BROOKLYN, 8. CITY COURT OF THE CITY OF NEW YORK, organization and jurisdiction of, 10-11. appeals from, 11. CITY MARSHALS, powers of, 17. INDEX. 323 CIVIL PRACTICE ACT, history of the iTevelopment, and the scope of, 1-4. when taking effect, 4. CIVIL ACTIONS, See Actions. CIVIL PRISONEES, 16. CLAIMS, against estates, notice to present, 237. id., proof of, 238. CLERK OF COURT, powers and duties of, IV. CLERGYMAN, when incompetent as witness, 176. CODE OF CIVIL PROCEDURE, commissioners reporting the, 2. sjTiopsis of chapters of, 2-3. when taking effect, 3. its repeal, 'and acts succeeding, 4. CODE OP PROCEDURE, its preparation and adoption, 2. COMMITTEE OP INCOMPETENT, proceedings for ap- pointment of, 268-270. COMPLAINT, defined, 59. contents of, 59. joinder of actions in, 60. illustrations of forms of, 64-70. raising objections to, 70-75. dismissal of at opening of trial, 163. <";ONDITION PRECEDENT, performance of, how alleged, 98. CONSOLIDATION, of actions, 143-144. CONSTABLES, powers and duties of, 17. CONSTITUTION, of 1846, changes in proceedure by, 1. CONTEMPT, proceedings to punish for, 274-278. CONTINGENT FEE, of attorneys, how protected and en- forced, 19. COPARTNERSHIP, See Partnership. CORPORATION, how to sue or be sued, 38. domestic, service of summons upon, 47. foreign, service of summons upon, 47. capacity of, how put in issue, 76, 99. capacity of, to be alleged, 99. misnomer of, 99. ansvv'er of, in action on -lote, 100. proceedings to chfuige name of, 272. 324 A HANDBOOK OF CIVIL PRACTICE. COEPOEATION— Comtiimed. proceedings for voluntary dissolution of, 272-274. actions against foreign, when maintainable, 315. COSTS, amount of, 179-181. how taxed, 181. how taxation reviewed, 181-182. in justice's judgment, to be paid on appeal taken, 217. in surrogate's courts, 226. security for, 123-125. COUNTERCLAIM, defined, 80-81. motions against, 81-83. how tried, 159. in courts not of record, 215. COUNTY CLERK, also clerk of Supreme Court, 17. . See, also, Clerk of Court. COUNTY COURTS, jurisdiction and organization of, 8-9 COUNTY JUDGE, when also surrogate, 9. COURT OF APPEALS, 5-6, 207-211. COURT OF CHANCERY, when abolished, 1. COURT OF COMMON PLEAS OF THE CITY OF NEW YORK, 8. COURT RECORDS, how proven, 138. COURT RULES, how established, 4. effect of, 4. COURTS, jurisdiction of the civil, 6-13. general organization of, 14-20. orders of, distinguished from judge's orders, 14. COURTS OF RECORD, what are, 5. procedure in, 33-212. COURTS NOT OF RECORD, what are, 5. jurisdiction of, 5. procedure in, 213-217. CREDITOR'S SUITS, 306-308. CRIME, conviction for, effect on competency of witness, 177. CROSS-EXAMINATION, right and scope of, 166-167. DAMAGES, offer to permit assessment of, 126-127. DEATH, action for negligently causing, 316. of party, effect on Statute of Limitations, 26-27. effect on pending actions, 142. . after verdict, effect of, 143. INDEX. 325 DEATH— Con rtH»frf. pending an appeal, 201. presumption of, 178. proving contributory negligence in action for causing, 178. DECEDKXTS' ESTATES, appraisement of, 237. notice to present claims against, 237-238. funeral expenses a preferred claim against, 238. claims against, in what order paid, 239. legacies, when payable out of, 239. sale of realty to pay claims against, 243-244. special provisions regulating actions against, 308-309. action by after-born child to obtain share of, 310. action by legatee or next of kin to obtain share of, 310. DECISION of court after trial, contents of, 172. when to be made, 173. of surrogate, 223. DECLAEATORY JUDGMENT, 186-187. DECREE, SURROGATE'S, defined, 225. effect of, 225. may be docketed, 225. execution upon, 225. enforceable by punishment for contempt, 225. effect of, upon an accounting, 242-243. DEFENDANTS, who should be, 35. effect of mistake in name of, 44-45. unknown, how designated, 45-46. how served with summons, 46-55. DELIVERY OF PUBLIC BOOKS AND PAPERS, proceedings to enforce, 278. DEMAND, when necessary, effect on Statute of Limitations, 27-28. DEMURRER, abolished, 70. DENIALS, illustrations of forms of, 76. construction and effect of, 77-78. DEPARTMENTS, JUDICIAL, 6-7. DEPOSIT, of property pending action, 119. DEPOSITIONS, 130-137. DEVELOPMENT OF CIVIL PRACTICE AND PROCEDURE, " in N. Y., 1-4. DIRECTION OP VERDICT, 169-170. 326 A HANDBOOK OF CIVIL PBVCTICE. DISABILITY, of party, effect on Statute of Limitations, 24-26. effect of subsequently occurring, 23. DISCOVEEY AND INSPECTION, of books, documents and articles, when and how allowed, 128-1.30. of assets in surrogate 's court, 2.'5C. DISMISSAL, of action, for want of prosecution, 145. at opening of trial, motion for, 16.3. at close of plaintiff's evidence, 167. waiver of denial of motion for, 168. DISPOSSESS PROCEEDINGS, 264-268. DISSOLUTION OP CORPORATION, proceedings for volun- tary, 272-274. DISTRIBUTION, of estates, See Executor and Admini.s- TRATOE. DIVORCE, ACTION FOR, inscription on summons in, 42. jury trial in, 159. when maintainable, 300-301. special provisions regulating, 301-305. DOCKETING, of judgment, 188. DOCUMENTARY EVIDENCE, preparation of, 137-140. DOWER, ACTION FOR, special provisions relating to pro- cedure in, 288-289. EJECTMENT, ACTION OF, special provisions relating to procedure in, 282-284. EQUITY, jurisdiction in, 1. ESTATES, administration of. See Executor and Administra- tor. actions relating to. See Decedents' Estates. EVIDENCE, preparation of documentary, 137-140. when certified copy admitted as, 138. instrument acknowledged as, 138-1.39. admission and exclusion of at trial, 164. objection to, how taken, 164. general provisions relating to, 174-179. in equity cases, how taken, 174. competency of certain persons to give, 175-178. of adverse party, may be rebutted, 178. effect of seal as, 178. in surrogate's court, 223, of witness as to right in real property, how perpetu- ated, 281. INDEX. 327, EXAMINATION BEFORE TRIAL, of a party, 130-131. of a witness, 131-1.')2. EXAMINATION OF WITNESSES, 164-167. EXCEPTIONS, defined, 165-166. how and when taken, 166, 173-174, 204-205. taken to denial of motion for new trial, 204. heard ]>y Appellate Court in first instance, 205. in surrogate's court, 223. EXECUTIONS, 190-195. when may be issued, 190. different kinds of, defined, 190. against property, to what county issued, 190. id., contents of, 191. id., exemptions from levy under, 191-192. id., personal property, how sold under, 192. id., real property, how sold under, 192-193. continuing, against wages or income, 194. against person, 195. on judgment of a court not of record, 216. EXECUTOR AND ADMINISTRATOR, how to sue and be sued, 37-44. competency of interested witness in action against, 175- 176. letters issued to, 227. when disqualified, 233. when foreign may sue, 236. proceeding for discovery of estate property by, 236. sale of estate property by, 237, 243. advertising for claims, 237-238. action on disputed claim, 31, 238. payment of funeral expenses by, 238. payment of debts by, 239. payment of personal claim, 239. payment of legacies, 239-240. accounting by, 240-242. commissions of, 242. proceedings by, to sell realty to pay claims, 243-244. may maintain action for negligently causing death, 316. EXHIBITS, defined, 166. FINDINGS OF FACT, by court, 172. not made by surrogate, 223. 328 A HANDBOOK OF CIVIL PEACTICE. FORECLOSUKE OF MORTGAGE, by advertispmeiit, 278. by action, 289-293. FOREIGN COBPORATIOKS, statute of liiiiitatiojis as effect- ing, 26. when may sue and he sued, .38, 315. how served with summons, 47, 5] -5.3. FORMS, of answer pleading statute of Ihnitations, 28. of notice of appearance, 56. of affidavit of service of summons, 57. of complaints, 64-70. of denials in answers, 76. of verification of pleading, 87. of stipulation extending time, 100. of notice of motion, 14R. of order to show cause, 149. of order on contested motion, 152. of judgment entered by clerk on default, 183. FRAUD, running of statute of limitations in actions for, 28. GENERAL RULES OP PRACTICE, superseded by Rules of Civil Practice, 4. GENERAL DENIAL, form of, 76. effect of, in answer, 78. GOODS SOLD AND DELIVERED, complaint for, 65. GRANTEE, under void deed, how to sue, 35. GUARANTOR, as party defendant with principal, 39. GUARDIAN aD LITEM, for infant party, how appointed, 35-36. powers and duties of, 36. omission of, an irregularity, 36-37. appointment of special, for incompetent, 37. GUARDIAN, GENERAL, when appointed, 244-245. powers and duties of, 245-246. annual inventory and account, 245. final accounting by, 246. not to purchase infant's real property at judicial sale, 281. GUARDIAN, SPECIAL, in surrogate's courts, 222. costs allowable to, 226. GUARDIAN, TESTAMENTARY, 246-247. HABEAS CORPUS, WRIT OF, 248-254. See, also, State Wkits. INDEX. 329 HUSBAND AND WIFE, as parties to an action, 35. . as witnesses, 176. INCOMPETENCY, of witnesses, 175-178. INCOMPETENT, suspension of lunning of statute of limita- tions on behalf of, 24-26. liow made a party to an action, 37. service of summons on, 47. proceedings for appointment of committee of, 268-270. proceedings for sale of real property of, 278. INFANT, suspension of running of statute of limitation on behalf of, 24-26. how made a party to an action, 35. defendant, service of summons upon, 46. special guardian for, in surrogate's court, 222. general guardian of, 244-247. proceedings for sale of real property of, 278. INJUNCTION OEDEE, when obtained, 107-108. by whom granted, 107. contents of, 108. how vacated, 109. damages under, how determined, 109. in judgment creditor's suit, 307. INSOLVENT, proceeding to obtain discharge of, 278. INTEEPLEADEE, 144-145. ISSUES, defined, 58. how raised, 58-85. JAIL LIBERTlJiS, what are, 16. JOINDEE, of actions, 60. JOINT AND SEVERAL DEBTORS, joining as parties, 39. JOINT DEBTORS as parties defendants, 39. actions against, special provisions regulating, 311-312. may compound separately, 311. JOINT TORT FEASORS, joinder as parties, 40. JUDGE in or out of court distinguished, 14. powers of judge out of court, 15. trial before, 172-174. JUDGMENT, complaint must demand, 59. how pleaded, 97. when enforceable only against attached property, 118. when direction in to convey real property, disobeyed, how enforced, 119. 330 A HANDBOOK OF CIVIL PRACTICE. JVDGMENT— Continued. offer of, 127-128. entry of, of what consists, 182. id., on default, 182-183. form of, when entered by clerk on default, 183. id., after jury trial, 185. id., after trial by court, 186. declaratory, defined, 186. id., its scope and effect, 186-187. effect of, dismissing complaint, 188. docketing- of, 188. lien of, 188-189. when enforceable by execution, 190. when enforceable by proceedings to punish for contempt, 190. how satisfied under executions against property, 190-194. how satisfied of record, 20, 194. execution against person upon, 195. upon determination of Appellate Division, 206. upon determination of Court of Appeals, 210. in court not of record, 216. affecting real property, where entered, 281. in action of ejectment, effect of, 283-284. deficiency, in foreclosure, 291. when action on, maintainable, 308. upon default in action against joint debtors, 311. JUDGMENT CREDITORS' SUITS, 306-308. JUDGMENT ROLL, 187. JURISDICTION OF CIVIL COURTS, 5-13. of Court of Appeals, 207-208. of appellate division, 205. of appellate term, 211. See, also, under particular courts. JUROR, how notified to attend, 16. challenges to a, 162. withdrawal of, 168. JURY, what actions triable by, as of right, 159. when trial by, directed by court, 159-160. selection of, 161-162. direction of verdict of, 169-170. inde:-:, 331 JURY — Continued. how waived, 160. verdict of, 171-172. in courts not of record, 215. in surrogate's courts, 224. JUSTICES' COURTS, organization and jurisdiction of, 13, 213. procedure in, 213-217. LAND, summary proceedings to recover, 264-26S. LEGACIES, when payable, 2:19-240. action for payment of, 310. LEGATEE, ACTION BY, to obtain legacy, 310. LETTERS OF ADMINISTRATION, defined, 227, 233. to whom issued, 233. proof before issuance of, 234. security upon issuance of, 234. LETTERS OF GUARDIANSHIP, defined, 227. may be revoked, 245. LETTERS TESTAMENTARY, defined, 227, 231. effect of, 231. when issued, 231. ancillary, when issued, 235. LEVY, by sheriff under attachment, 115-116. LIBEL, complaint in action for, 69. alleging application of, 98. LIEN, of attorneys, 18. of judgment, on real property, 188-189. id., on personal property, 189. LIEN, MECHANIC'S, action to foreclose, 293-295. LIFE TENANT, proceedings to discover death of, 278. LIMITATIONS, STATUTE OF, 23-32. defined, 23. acknowledgment or new promise under, 23-24. certain time excluded, 24-27. application of, when demand necessary, 27-28. when knowledge of one's right necessary to running of, 28. must be pleaded or objection taken by motion, 28, 74. how pleaded, 29. court or judge may not extend time of, 15, 29. 332 A HANDBOOK OF CIVIL PRACTICE. LIMITATIONS, STATUTE OF— Continued. effect of party's death before appeal taken, 201. iic.tion, how commenced under, 29. when actions barred by, 29-32. applies to special proceedings, 218. when claim against an estate barred by, 31. LIMITED LETTERS of administration, 234. LIS PENDENS, 279-280. defined, 279. contents of, 279. effect of, 280. LUNATIC. See Incompetent. MAIL, service by, 154. MANAGING AGENT, who is a, 47. MANDAMUS, 254-258. Sec, also, State "Writs. MABEIED WOMAN, when a resident for purpose of bringing matrimonial action, 295. MATRIMONIAL ACTIONS, inscription on summons in, 42, 295. proof of service of summons in, 58. procedure in, 295-306. references in, 296. competency of parties as witnesses in, 176. MECHANIC'S LIEN, ACTION TO FORECLOSE, special provisions relating to procedure, in, 293-295. MINISTERIAL OFFICERS OP COURTS, enumerated and duties defined, 15-18. MODE OF TRIAL, 158-174. MORTGAGE, foreclosure of, 289-293. MOTIONS, grounds of against complaint, 70-74. id., against answer, 81-83. general consideration of, 146-153. where heard, 151. at opening of trial, 163. MUNICIPAL COURTS OF THE CITY OF NEW YORK, organization and jurisdiction of, 12-13. actions in, where brought, 13. trials in, 13. appeals from, 211. MUNICIPALITY, presentment of claim to, 32. INDEX, 333 NAME, stating in summons, 44. effect of mistake in, 44-45. of party, when unknown, 45. proceedings for change of, 271-272. NEGLIGENCE, ACTION FOR, complaint in, 68. when causing death, 316. NEXT OF KIN, ACTION BY, to obtain distributive share of estate, 310. NEW PROMISE, under Statute of Limitations, 23-24. NONRESIDENT, service of summons on, 51-53. NONSUIT, motion for, 167. voluntary, 168. See, also, Dismissal or Action. NOTE OF ISSUE, 157. NOTICE OF MOTION, when required, 146-147. form of, 148. time required for, 149. order to show cause as short, 149. NOTICE OF NO PERSONAL CLAIM, served with sum- mons, 43, 290. NOTICE OF PENDENCY OF ACTION, 279-280. NOTICE OF TRIAL, 156-157. NOTICE TO PRESENT CLAIMS, 237-238. OBJECTIONS, to pleadings, 70-74, 81-83. to evidence, 164-165. OFFER, of assessment of damages at specified lum, 126-127. of judgment, 127-128. OPEN AND CLOSE, right to, 162-163. ORDER, to show cause, form of, 149. upon contested motion, form of, 152. ORGANIZATION OF CIVIL COURTS, 5-13. PARTIES, to a civil action, 33-41. when may sue as representing others, 40. adding or striking out, 40-41. naming the, 43-46. effect of death of, 142. omitted, may apply to be joined, 41. PARTITION, ACTION OF, special provisions relating to procedure in, 284-288. PARTNERSHIP, how suing or sued, 37. after decease of partner, 38, 142. 334 A HANDBOOK OF CIVIL PRACTICE. PERISHABLE PROPERTY, when attached, may be sold, 116. when subject of action, 120, PERPETUATING TESTIMONY, 281. PERSON, execution against, 195. PHYSICAL EXAMINATION of plaintiff, 131, 135. PLACE OP TRIAL, See Trial. PHYSICIAN, competency as witness, 176. PLAINTIFF, defined, 33. who should be, 33-35. when security for costs may be required of, 124. physical examination of, 131, 135. PLEADINGS, purpose of, 58. general rules for drawing, 61-6"4. illustrations of forms of, 64-70. considered in detail, 58-85. motions against complaint, 70-74. id., against answer, 81-83. verification of, 85-88. amendment of, 89-91. variance between proof and, 91. irrelevant or scandalous matter in, 92. indefinite allegations in, 92. frivolous, defined, 93. frivolous, remedy against, 93. sham, defined, 93. sham, remedy against, 93. supplemental, 94. bills of particulars of, 95-98. special provisions affecting, 97-100. time for service of, 100. filing of, 101. in courts not of record, 214-215. POOR PERSON, who may be allowed to sue as, 35. PREFERENCES, of actions on trial calendar, 157. PRESUMPTION OF DEATH, when arises, 178. PRINCIPAL AND AGENT, who may be plaintiff, 34, PROBATE OF WILL, when surrogate may allow, 227-233. who may npply for, 228. who must be cited upon, 228-229. proof of due execution before, 229-230. INDEX. 335 PROBATE OF WlL,h— Continued. when lost or destroyed, 230. letters testamentary issued upon, 231. appeal from decree of, 226. effect of, generally, 225. id., of personal property, 225. id., of real and personal property, 225. PROCEDURE, history of development of civil, in New York, 1-4. in an action, in courts of record, 33-212. in trial before jury, 161-172. id., before court, 172-174. id., before referee, 174. id., in courts not of record, 213-217. in special proceedings generally, 218-219. in surrogates' courts, 220-247. formerly under State writs, 248-263. in miscellaneous proceedings, 264-278. in various particular actions, 279-317. PROCEEDINGS TO RECOVER LAND, SUMMARY, 264-268. PROCEEDINGS FORMERLY UNDER STATE WRIT. See State Writs. PROHIBITION, 258:260. See, also, State Writs. PROOF of service of summons, 57-58. id., form for, 57. of execution by subscribing witness, 139. PROMISSORY NOTE, suing parties on, 39. complaint on against maker, 65. the same, against maker and payee, 66. pleading b^^ copy, 98. PROVISIONAL REMEDIES, defined, 101. enumerated, 102. particular, considered, 102-123. PUBLICATION, of summons, 54. PUBLIC IMPROVEMENT, foreclosure of lien on, 294-295. PUBLIC OFFICER, action upon bond of, 316. REAL PARTY IN INTEREST, who is, 34. REAL PROPERTY, title to in justice's court, 215. sale of, to pay debts of decedent, 243-244. id., under execution, 192-193. 336 A HANDBOOK OF CIVIL PRACTICE. REAL FBOPEHTY— Continued. summary proceedings to recover, 264-268. actions afifecting, 279-295. REBUTTAL, right of, 169. RECEIVER, temporary, when appointed, 118-119. in supplementary proceedings, 200. RECORD ON APPEAL, contents of, 202-203, 210. REFERENCE, when ordered, 160-161. powers of referee upon, 161. form and effect of decision upon, 174. in surrogate's court, 224. in matrimonial actions, 295. REMITTITUR, defined, 210. REPLEVIN, ACTION OF, special provisions regulating, 312-315. REPLEVIN, WRIT OF, 120-123. contents of, 120. when issued, 120-121. what papers must show, 120-121. security upon obtaining, 121. how executed, 121. custody of chattels taken under, 122-123. REPLY, defined, 83. when required by statute, 83. when required by court, 83-84. what may contain, 84. effect of failure to serve, 84. REPORT, of referee, 174. REPORTER, COURT, 18. REPRESENTATIVE ACTION, when may be brought, 40. REPRESENTATIVE CAPACITY, person suing in, how desig- nated, 44. REQUESTS, to charge, 171. to find, 172. RESIDENCE, in matrimonial actions, 295. RESPONDENT, defined, 200, 219. RIGHTS, CIVIL, how enforced, 21-22. RULES, COURT, how adopted, 4. to what extent controlling, 4. RULES OF PLEADING, some general, 61-63. INDEX. 337 SALES OF EEAL PROPERTY UNDER JUDGMENT, 192-193. what included in expenses of, 280-281. how made, 280. SEAL, effect of, on written instrument, 178. SECURITY FOR COSTS, 124-125. SECURITY ON APPEAL, 202. SEPARATION, ACTION FOR, when maintainable, 305. special provisions regulating, 305-306. SERVICE, of summons. See Summons. of papers in the action, 158-156. SETTLEMENT, power of attorney to make, 20. SHERIFF, powers and duties of, 15-16. powers under warrant of attachment, 114-115. how levy made under warrant, 115-116. may convey- real property when direction in judgment not obeyed, 119. SLANDER, ACTION FOR, by woman, 317. See, also, Libel. SPECIAL PROCEEDINGS, defined, 21. procedure in, 218-219. Statute of Limitations applies to, 218. formerly instituted by State writ, 248-263. miscellaneous, 264-278. See, also, State Writs. STATE WRITS, 248-254. defined, 248. enumerated, 248. title of proceeding under, 250. habeas corpus, 248-254. certiorari to review cause of detention, 248-254. mandamus, writ of, abolished, 254. id., proceedings in, 254-258. prohibition, writ of, abolished, 258. id., procedure in, 25S-260. certiorari to review determination, writ abolished, 248. id., procedure in, 260-262. STATUTE OF LIMITATIONS. See, Limitations, Statute OF. time of running, cannot be extended, 15. 338 A HANDBOOK OF CIVIL PRACTICE. STATUTES, how pleaded, 97. how proven, 138. STAY OF PROCEEDINGS, how obtained on appeal, 202. STENOGEAPHEE, COURT, powers and duties of, 17. STIPULATIONS, 20. form of, extending time, 100. SUBMISSION OF CONTROVERSY, 22. SUBPOENA, of justice of peace, 215. SUBPOENA DUCES TECUM, 138. SUBSCRIBING WITNESS, proof by, 1.39. when not necessary to be called, 179. SUMMARY PROCEEDINGS to recover land, 264-268. SUMMONS, character of, 41. contents of, 42. mistake in, how corrected, 42. inscription on, in matrimonial actions, 42. personal service of, 46-50. setting aside service of, 49. in matrimonial actions, 53. waiver of defect in service of, 49. supplemental, 42. substituted service of, against a resident, 50-51. id., against a non-resident or foreign .corporation, 51-53. service of, without state, 53, 54. directions of order for substituted service, 54. when substituted service complete, 54, 55. effect of substituted service of, 55. in court not of record, 214. in matrimonial actions, inscription on, in certain cases, 295. SUPERIOR CITY COURTS, 8. SUPERIOR COURT OF BUFFALO, 8. SUPERIOR COURT OF THE CITY OF NEW YORK, 8. SUPPLEMENTAL PLEADINGS, 94-95. SUPPLEMENTAi. SUMMONS, when to issue, 42. SUPPLEMENTARY PROCEEDINGS, 195-200. defined, 195. when judgment creditor may institute, 196. order for examination in, 197. when cannot be had, 199. property which cannot be reached under, 200. INDEX. 339 SUPEEME COtJRT, jurisdiction and organization of, 6-8. Appellate Divisions of, 6-7. Trial Divisions of, 7. Special Terms of, 7. Trial Terms of, 7. SURETY, as party defendant with principal, 39. SURROGATE'S COURTS, jurisdiction and organization of, 9, 220-221. procedure in, 221-247. citation in, 221. costs in, 226. appeals in, 226-227. TAXPAYER, ACTION BY, 317. TENDER, how made, 125-126. effect of, 125-126. TENANT, summary proceedings to remove, 2C4-268. TERMS OP COURT, 7. trial terms, 7. special terms, 7. TESTIMONY, PERPETUATING, 281. TIME, when court or judge cannot extend, 15, 29, 201. for service of pleadings, 100. for service of notice of motion, 149. TITLE, how tried by sheriff, 16. to real property, when arising in justice's court, 215. TORT, complaints in actions for, 68-70. TRIAL, miscellaneous proceedings prior to, 123-158. flxing place of, 140-142. how action brought to, 156-158. mode of, 158-174. motions at opening of, 164. mode of, in courts not of record, 215-216. UNKNOWN NAME, how party having is designated, 45. VARIANCE, defined, 91. effect of, 91. VENUE, how fixed, 140-142. VERDICT, direction of, 169-170. general or special, 171-172. when may be set aside, 172. VERIFICATION OF PLEADINGS, defined, 85. when required, 85. 340 A HANDBOOK OF CIVIL PRACTICE. VERIFICATION 0¥ PLEADINGS— Comtiwed. by whom made, 86. when party excused from making, 88. contents of, 87. WAGES, continuing execution against, 194. WAIVER OF JURY, by motion for direction of verdict, 170. WILL, nuncupative or unwritten, 228. lost or destroyed, how proven, 230. recording of, after probate, 232-233. action to establish, when maintainable, 309-310. action to determine validity, construction and effect of, 310. See Probate of Will. WITNESSES, depositions of, before trial, 131-132. examination of, at trial, 164-165. scope of cross examination, 166. competency of, 175-178. husband and wife as, 176. interested, in actions against estates, 175-176. privilege of clergymen, physicians and attorneys, 176-177. id., waiver of, 177. evidence of, as to right in real property, proceeding to perpetuate, 281. WRITINGS, genuineness of disputed, how established, 179. WRITS, STATE. See State Writs. WRONGS, CIVIL, how redressed or prevented, 21-22.