QlflritFU Haul ^rljnnl Hibraty Cornell University Library KFN5975.B35 1920 Bender's justices' manual of civil and c 3 1924 022 786 531 Cornell University Library The original of this book is in the Cornell University Library. 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BENDER'S JUSTICES' MANUAL OP CIVIL AND CRIMINAL LAW AND PRACTICE FOR JUSTICES OF THE PEACE AND POLICE JUSTICES IN THE STATE OF NEW YORK "WITH COMPLETE FOEMS DMDEK THE CONSOLIDATED LAWS, PENAL LAW, CODE OF CIVIL PROCEDirEE AND CODE OP CRIMINAL PROCEDURE AS AMENDED COMPILED AND EDITED EDWIN BAYLIES OF THE JOHNSTOWN BAB EDITOR OF WAIT'S LAW AND PKACTICB, 7tH EDITION, AND AUTHOR OF " CODE PLEADING," "NEW TRIALS AND APPEALS," ''TRIAL PRACTICE" FOURTH EDITION AETHUE F. CUETIS, OF THE DELAWABE COUNTY BAE ALBANY, N. Y. MATTHEW BEl^DER & COMPANY INCOEPOEATED 1920 Copyright, 1909 Bt MATTHEW BENDER & COMPANY Copyright, 1911 By MATTHEW BENDER & COMPANY Copyright, 1913 By MATTHEW BENDER & COMPANY Copyright, 1920 By MATTHEW BENDER & COMPANY Incorporated INTRODUCTION TO FOURTH EDITION. The lapse of six years since the publication of the Third Edition of BENDEE'S JUSTICES' MANUAL has afforded abun PRACTICE. the owner to kill the dog immediately. An owner who fails to kill such dog within forty-eight hours after the service, either personally or by registered mail, upon him of such order, shall be subject to a penalty of twenty-five dollars, and the further penalty of two dollars for each twenty- four hours thereafter until the dog is killed. If such order be issued and the owner fails to kill such dog as required therein, a duly designated representative of the department of farms and markets or any peace officer shall kill such dog on or off the premises of the ovmer, and any person may kill such dog if running at large off the premises of the owner. § 4. Summary proceedings. Proceedings to recover lands are commenced by the service of a precept and not by service of a summons, and therefore fall under the general classification of special proceedings. The application for the removal of a person from real property may be made to a justice of the peace of the city or town, or recorder of the city, wherein the real property, or a portion thereof, is situated. (Code Civil Pro., § 2234.) The application is made by the presentation to the jus- tice of a verified written petition in which must be stated the facts entitling the applicant to the removal of the defendant. (Code Civil Pro., § 2235.) The jurisdiction of the justice of the subject matter of the proceeding depends upon the legal sufficiency of the petition. {Bell v. Karsch Brewing Co., 52 Misc. 159, 101 N. Y. Supp. 803; Ferber v. Apfel, 99 ]Sr. Y. Supp. 215, 113 App. Div. 720; Kazis v. Loft, 80 N, Y. Supp. 1015; Loft V. Kazis, 84 Id. 228; Engel, Heller Co. v. Elias Brew- ing Co., 37 Misc. 480 ; Potter v. New York City Baptist Mission Society, 23 Misc. 671 ; Ross v. New York City Baptist Mission Society, 23 Misc. 683.) If the petition does not contain a statement of the facts which the statute requires, the justice vnll be without jurisdiction; and it is a familiar principle, that when for any cause a court has no jurisdiction of the subject matter of an action or proceeding, neither an appearance, con- sent of the parties, nor pleading to the merits and going to trial will give it jurisdiction. {Potter v. New York City Baptist Mission Society, 23 Misc. 671, 680, and cases cited; Ferher v. Apfel, 113 App. Div. 720, 99 N". Y. Supp. 215.) Where the defect in the petition is jurisdictional it cannot be cured by amendment, and the justice is without power to allow an amendment. {Ferher y. Apfel, IIB A-p^p. Div. 720.) But the justice will not be ousted of jurisdiction by reason of the fact that the title to real property is involved. The provisions of the Code which require a dismissal in cases of disputed title relate only to actions as distinguished from special proceedings. {Quinn v. Quimti, 46 App, Div. 241; People JURISDICTION IN SPECIAL PROCEEDINGS. 29 V. Goldfogle, 23 Civ. Pro. Rep. 41Y; Dorschel v. BurUy, 18 Misc. 240; Wetter v. Souhrious, 22 Misc. Y39 ; Van Deventer v. Foster, 87 App. Div. 62^ 83 N. Y. Supp. 1067 ; People ex rel. Hill v. Kelsey, 82 Misc. 491, 144 N. Y. Supp. 135.) Jurisdiction of the subject matter having been acquired, jurisdiction of the person may be acquired by the issuing, ser- vice and return of the precept issued by the justice to whom the petition was presented. (Code of Civil Pro., §§ 2238, 2240, 2242, 2243'; Beich V. Cochran, 105 App. Div. 542, 554, 94 N. Y. Supp. 404.) 30 CIVIL LAW AND PEACTICE. CHAPTEE IV. COITTEACTS GBNEEALLTj AND THE EIGHTS ASH EEMEDIES OP PABTIES. Section 1. Deflnition of a contract. 2. Essentials of a contract. 3. Oral and written contracts. 4. Sealed and unsealed instruments. 5. Express and implied contracts. 6. Executory and executed contracts. 7. Unilateral and bilateral contracts. 8. Parties to contracts. 9. Consideration; in general. 10. Consideration; promise to do what one is obligated to do. 11. Consideration; forbearance. 12. Consideration; compromise of disputea claim, 13. Consideration; affection; promise to marry. 14. Consideration; mutuality of promises. 15. Assent oi parties; in general. 16. Assent of parties; formal contract to be subsequently dirawn. 17. Assent of parties; fraud. 18. Interpretation of contracts; in general. 19. Interpretation of contracts; intent is primary consideration. 20. Interpretation of contracts; construction against party preparing contract. 21. Interpretation of contracts; practical construction. 22. Interpretation of contracts; reasonable construction souglit. 23. Interpretation of contracts; reference to usage. 24. Interpretation of contracts; general and specific words. 25. Interpretation of contracts; conflict between written and printed portions. 26. Interpretation of contracts; agreement for liquidated damages. 27. Interpretation of contracts; provision giving one party right to construe contract. 28. Validity of contracts; in general. 29. Validity of contracts; contracts against good morals. 30. Validity of contracts; contracts against public policy. 31. Validity of contracts; enforcement of illegal contract. 32. Contracts void and contracts voidable. 33. Modification of contract. 34. Rescission of contract. 35. Performance oi contract; in general. 36. Performance of contract; time for performance. 37. Performance of contract; impossibility of performance. 38. Performance of contract; entire and severable contracts. 39. Performance of contract; substantial performance. § 1. Definition of a contract. A contract is defined by Blackstone as " an agreement upon sufficient consideration to do or not to do a particular thing ; " by Kent, as an agree- CONTEACTS GEI^^EEALLY AND EIGHTS OF PAETIES. 31 ment of two or more persons, upon sufficient consideration, to do or not to do a particular tiling ; by Chitty, as " a mutual assent of two or more per- sons competent to contract, founded on a sufficient and legal motive, induce- ment, or consideration, to perform some legal acts, or to omit to do any- thing, the performance of which is not enjoined by law ; " and by Comyn, as " a bargain or agreement voluntarily made upon good consideration, between two or more persons capable of contracting, to do, or forbear to do, some lawful act." All these definitions are substantially the same, and describe what is known as a simple contract, or agreement not under seal, relating to something to be done or omitted in the future. § 2. Essentials of a contract. To constitute a simple contract, or contract by parol, it is said that six things are necessary to concur: 1st. A person able to contract. 2d. A person able to be contracted with. 3d. A thing to be contracted for. 4:th. A good and sufficient consideration, or quid pro quo. 5th. Clear and explicit words to express the contract or agreement. 6th. The assent of both of the contracting parties. {Justice v. Lang, 42 N. Y. 493, 496 ; Bristol V. Mente, 79 App. Div. 67.) § 3. Oral and written contracts. Contracts may be classified as oral or as written. Or a contract may rest partly in the written engagement of the parties and partly iji their verbal agreement. But certain contracts are required by what is com- monly known as the Statute of Frauds to be in writing. Thus, in relation to contracts pertaining to real property, it is provided by section 259 of the Eeal Property Law that, " A contract for the leasing for a longer period than one year, or for the sale of any real property, or an interest therein, is void, unless the contract, or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the lessor or grantor, or by his lawfully authorized agent." This section relates to leases and to contracts to convey. Another section provides that the actual conveyance of the interest in real estate shall be in writing. (See Eeal Property Law, § 242.) Section 31 of the Personal Property Law provides generally as to the contracts which shall be in writing. It provides as follows : " Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party sought to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking: 32 CIVIL LAW AND PRACTICE. " 1. By its terms is not to be performed within one year from the making thereof ; " 2, Is a special promise to answer for the debt, default or miscarriage of another person; " 3. Is made in consideration of marriage, except mutual promises to marry; " 4. Is^a conveyance or assignment of a trust in personal property; " 5. Is a subsequent or new promise to pay a debt discharged in bank- ruptcy." Certain contracts for the sale of personal property are required to be in writing. Thus, section 85 of the Personal Property Law provides: 1. A contract to sell or a sale of any goods or choses in action of the value of fifty dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memo- randum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf. 2. The provisions of this section apply to every such contract or sale, notwithstanding that the goods may be intended to be delivered at some future time or may not at the time of such contract or sale be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or com- pleting thereof, or rendering the same fit for delivery ; but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller's business, the provisions of this section shall not apply. 3. There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods. § 4. Sealed and unsealed instruments. In former times, there was a considerable difference in the law pertain- ing to sealed instruments and to those which did not have a£Rxed the seal of the person signing the same. Modern statutes have changed some of the prior rules of law on the subject. Formerly the presence of a seal con- clusively imported that the contract was based on a sufficient consideration but now the seal on an executory contract is only presumptive evidence of a sufficient consideration, and the presumption may be rebutted. (Code Civil Pro., § 840.) There is remaining one important distinction as to the Statute of Limitations. An action on a sealed instrument may be brought within twenty years after the cause of action has accrued (Code CONTRACTS GEXEEALLY AXD EIGHTS OF PAETIES. 33 Civil Pro., § 381) ; but an action on an unsealed instrument must generally be brought within six years. (Code Civil Pro., § 382.) A sealed instru- ment generally binds only the parties thereto, and it cannot be shown by parol that apparent parties acted merely as agents for other parties. (Peterson v. City of New York, 194 N. Y. 437.) It is no longer required that the seal of a private person shall consist of a wafer or be imprinted in the substance of the paper ; for it is provided by section 44 of the General Construction Law that the private seal of a person, other than a corporation, to any instrument or writing, shall con- sist of a wafer, wax or other similar adhesive substance affixed thereto, or of paper or other similar substance affixed thereto, by mucilage or other adhesive substance, or of the word " seal," or the letters " L. S." opposite his signature. § 5. Express and implied contracts. A contract may be express or implied. It is express where the parties have, at the time of entering into it, by oral declarations or written state- ment, agreed upon its terms. A contract is implied where some of its essential terms, omitted by the parties, are supplied by the law upon the presumption, based upon their precedent acts, that they intended that such omitted terms should be deemed a part of their agreement. An implied promise or contract is but an express promise proved by circumstantial evidence. (McCown v. N. Y. C. & H. E. B. R. Co., 50 K Y. 176, 180.) Thus, upon the rendition of services at the request and for the benefit of another, the law fastens upon the person making the request an obligation to pay their reasonable value; and adjudges the customary or market price to be that reasonable value. (Baer v. Koch, 2 Misc. 334, 340.) But a promise to pay for services, will be implied only when the court can see that they were rendered under such circumstances as authorized the party performing them to entertain a reasonable expectation of their payment by the party soliciting the performance. (Davidson v. Westchester Oas- Light Co., 99 K Y. 559, 566.) § 6. Executory and executed contracts. A contract may be executory or executed. It is executed when both parties have fully performed it. It is executory where it is unperformed on the part of one or both of the parties. For example, a deed of real estate is an executed contract, while an agreement for the sale of property at a future date is an executory contract. An agreement may be a completed valid contract, although it contem- plates the subsequent execution of a more formal contract and efforts to 3 34 CIVIL LAW AND PEAOTIOE. agree upon the form of the contract hare proved unavailing. {Ferguson Contracting Co. v. Helderherg Cement Co., 135 App. Div. 494, 120 N. T. Supp. 317.) § 7. Unilateral and bilateral contracts. A contract may be unilateral, that is, one-sided, or it may be bilateral, that is, two-sided. One person may make a definite offer and another per- son may accept it without promising anything in return and without mak- ing himself liable for anything, so that although one is bound the other is not, and the engagement lacks what is called mutuality. In such a case there is not an enforceable agreement. (Commercial W. & C. Co. v. Narthampton P. C. Co., 115 App. Div. 388, 395 ; Booth v. Milliken, 127 App. Div. 522.) But a contract, although unilateral in form, will be binding upon the one party who assents thereto by subscribing his name at the end thereof, and upon the other party who accepts the instrument so signed as a valid and operative agreement and acts thereupon. {L'Amoreux v. Oould, 7 N. Y. 349 ; Justice v. Lang, 42 N. Y. 493, 498; Mason v. Decker, 72 IST. Y. 595 ; Lord v. Cronin, 154 IST. Y. 172.) § 8. Parties to contracts. Ordinarily the persons who conduct the negotiations which culminate in an agreement are the parties to the contract, unless they are acting as the agents or representatives of others. An agent or attorney may make a contract for his principal or client, which, if within the scope of his em- ployment, will bind the person for whom he professes to act. But where the contract made by the agent is under seal, no person can sue or be sued to enforce its covenants except those who are named as parties to the instru- ment and who signed and sealed the same. (Henricus v. Englert, 137 N. Y. 488.) This is the general rule at common law, but the rule has some statutory exceptions. {Town of Ulysses v. Ingersoll, 182 N. Y. 369.) Persons who subscribe a contract may make themselves liable as parties to the contract although their names are not mentioned in the body of the instrument. {Esselstyne v. McDonald, 98 App. Div. 197, 90 IST. Y. Supp. 518 ; Perhins v. Goodman, 21 Barb. 218.) It is a presumption of law, in the absence of express words, that the parties to a contract intend to bind not only themselves but their personal representatives. (Kemochan v. Murray, 111 N". Y. 306.) This rule applies in cases of contracts for the payment of money, or the sale or pur- chase of property or of a covenant of warranty, or the like. It is, of course, competent for the parties to agree that the contract shall not survive and CONTKACTS GEITEEALLY AND EIGHTS OF PAETIES. 35 that all obligation under it should terminate on their death. So the con- tract may be of such a nature as to admit only of personal performance, or as to imply that it is to be operative only during the continuance of per- sonal relations, although not so expressed in terms, and will be deemed dissolved by death or other disability which renders performance, accord- ing to the intention, impossible. Contracts for the rendition of personal or professional services are of this character, and they terminate with the death or disability of the party owing them. (Id.) Where a contract is executed by three or more individuals, each party will be bound only to the extent of the promises made by him. {Moloney V. Iroquois Brewing Co., 63 App. Div. 454, 71 IS. T. Supp. 1098 ; Berry Harvester Co. v. Walter A. Wood Co., 152 IST. Y. 540; Union Insurance Co. V. Central Trust Co., 157 N. Y. 633.) § 9. Consideration; in general. A sufficient and legal consideration is necessary to the validity of every contract, and a promise to pay a sum of money or to perform any act, when such promise is not based upon a sufficient consideration, cannot be enforced. {Arevd v. Smith, 151 N. Y. 502.) The consideration may consist either in a benefit moving to the promisor, or in some forbearance or right surrendered by the promisee. {First Nat. Bank of Richfield Springs v. Keller, 127 App. Div. 435.) It need not be a money con- sideration, but it must be either a benefit to the party promising, or some detriment, or expense, or labor, or undertaMng on the party to whom the promise is made. It constitutes a sufficient consideration to support a con- tract if the promisee in return for the promise does anything legal which he is not bound to do, or refrains from doing anything which he has a right to do. {Street v. Oalt, 136 App. Div. 724, 121 K Y. Supp. 514.) § 10. Consideration ; promise to do what one is obligated to do. The performance of an act which the party is under a legal obligation to perform cannot constitute a consideration for a contract. {Rohinson v. Jeweti, 116 N'. Y. 40; Olmstead v. Latimer, 158 N". Y. 313; Carpenter v. Taylor, 164 IST. Y. 171 ; Feldman v. Rockford Co., 70 Misc. 66, 126 IST. Y. Supp. 646.) Thus, the payment of a valid and admitted debt by one who owes it is no consideration for a promise by the creditor. {Arend v. Smith, 151 N. Y. 502.) And an agreement by a mortgagor to pay a mort- gage debt before it becomes due by the terms of the mortgage is void unless founded upon some new consideration. {Feldman v. Rockford Co., 70 Misc. 66, 126 N. Y, Supp. 646.) An agreement on the part of a solvent corporation to distribute the proceeds resulting from the disposition of its 36 CIVIL LAW AJSTD PKACTICE. assets equitably among its creditors is merely to do that which the law requires, and is not a consideration sufficient to support an agreement on the part of a creditor to forbear forcing collection of his claim. (Mount Vernon Rattan Co. v. Joachimson, 119 App. Div. Tl, 103 N". T. Supp. 1045.) The payment of a part of a debt which is due, is no consideration for an extension of time in which to pay the remainder. (Pahodie v. King, 12 Johns. 426.) And payment of interest already accrued, or a promise to pay interest for the future (Beynolds v. Ward^ 5 Wend. 502), is not a sufScient consideration to support a promise to extend the time of pay- ment ; nor will the giving of a new obligation with additional security for a part of the debt avail as a consideration for an agreement to extend the time of payment of the residue. (Gibson v. Benne^ 19 Wend. 389; Parmelee v. Thompson, 45 N. Y. 58.) But payment upon a note before it is legally demandable is a sufficient consideration for an agreement between the holder and maker that the time for the payment of the balance of the note shall be extended. (New- sam V. Finch, 28 Barb. 175 ; Scott v. Frink, 53 Barb. 533.) § 11. Consideration; forbearance. A promise to forbear, or extend the time of payment of a debt actually ■due, based upon a promise by the debtor to pay the sum with iterest at a later date, is without legal consideration and unenforceable. (Repelow v. Walsh, 98 App. Div. 320, 90 IST. Y. Supp. 651; Kellogg v. Almsted, 25 ]Sr. Y. 189 ; Olmstead v. Latimer, 158 N. Y. 313.) On the other hand, an agreement to forbear proceedings at law for the collection of a valid claim then due, is a good consideration for the promise of a third party to pay the debt. (T. & N. Bank v. Parker, 130 IST. Y. 415.) So where a debt is due, a promise by the debtor to raise the rate of interest one per cent is a valid consideration for an agreement to forbear proceedings at law for the collection of the debt. (Haggerty v. Allaire Works, 5 Sandf. 230.) A valid and binding agreement to extend the time of payment between the holder of a promissory note and the principal debtor, without the knowledge or consent of a surety thereon, operates to release the surety, provided the holder knows of his true relation to the note. But to have thiis effect the agreement between the holder and principal debtor must be upon a valid consideration and must be sufficient to preclude the creditor, during the extended period, from enforcing the debt against the principal. (Parmelee v, Thompson, 45 ¥. Y. 58 ; National Citizens Bank v. Toplitz, 178 K Y. 464.) When a debt is due, and the creditor forbears collection in consideration CONTEACTS GENERALLY AND EIGHTS OF PAETIES. 37 of a guaranty by a third party of the payment of the debt, the consideration is sufficient to support an action against the guarantor. (Watson v. Bandall, 20 Wend. 201.) § 12. Consideration ; compromise of disputed claim. Courts have from the earliest times favored compromises of bona fide disputes and have held agreements therefor to be founded upon a good consideration, irrespective of the validity of the claim which was com- promised. A promise made upon a settlement of a dispute to prevent litigation is made upon a good consideration. (Minehan v. Hill, 144 App. Div. 854, 129 N. Y. Supp. 873.) A note given on a fair compromise of a doubtful claim is founded on a good consideration and the court will not look behind the compromise. (Fanners' Bank of Amesterdam v, Blair, 44 Barb, 641.) The rule is well settled that the compromise of a doubtful claim is a good considera- tion for a promise to pay money ; and when an action is brought upon the promise it is no answer to show that the first suit could not have been main- tained, or that the claim was not a valid one. (Stewart v. Ahrenfeldt, 4 Denio, 190; White v. Hoyt. 73 N. Y. 505; Andrews v. Brewster, 124 ]Sr. Y. 133 ; Dovale v. Ackermann, 2 App. Div. 404, 37 JST. Y. Supp. 959.) A claim to the possession of a farm, with other matters in controversy, were submitted by the parties to an arbitrator who decided in favor of the defendant and on his bringing action to recover possession it was agreed that the plaintiff should deliver possession to him, and he should relin- quish his claim under the arbitrator's decision and pay the plaintiff a stipulated sum. This was a fair settlement of a suit pending and the surrender of possession was a legal consideration for a note given for the sum of money to be paid. (Hall v. Brown, 15 Johns. 194.) § 13. Consideration; affection; promise to marry. Natural love and affection between near relatives is a sufficient con- sideration to support an executed contract, but not a mere covenant or promise, or executory agreement. (Duvoll v. Wilson, 9 Barb. 487.) A promise of marriage, subsequently performed, is a good consideration for a note given on the faith of the promise (Verplank v. Story, 12 Johns. 536; Wright v. Wright, 54 "N. Y. 437), or an agreement to make a mar- riage settlement (Hosmer v. Tiffany, 115 App. Div. 303), or to pay money. (L&ib v. Dohriner, 60 Misc. 66.) A contract by which a third person promises to perform certain agreements in consideration of a marriage between other parties is founded upon a sufficient consideration. (Sarasohn v. Eamaiky, 193 N. Y. 203.) 38 CIVIL LAW AND PEACTICE. § 14. Consideration; mutuality of promises. A promise is a good consideration for a promise, provided that it imposes some legal liability on the person making it. If it imposes none, it can- not be a consideration. (Commercial Wood and Cement Co. v. Northamp- ton Portland Cement Co., 115 App. Div. 388, 100 jST. Y. Supp. 960.) A new promise by a party to do less than he has already agreed to do is not a sufficient consideration for the promise of another party to do more than he is obliged to do. (Weed v. Spears, 193 IST. Y. 289.) A promise by one party to sell is a sufficient consideration for the promise of the other party to buy. (Van Dam v. Tapscott, 40 App. Div. 36, 57 IST. Y. Supp. 534.) It is not essential to the existence of a consideration for a promise that mutuality of obligation should exist between the parties at the time of making the promise. Where a person has made a proposition coupled with a promise, a voluntary performance by the one to whom the proposition was made of the act required by the proposition, constitutes a considera- tion which will uphold the promise. (Marie v. Garrison, 83 IST. Y. 14; Cox V. Stohes, 156 N. Y. 491; Boherts v. Cohh, 103 E". Y. 600; Keuka College v. Bay, 41 App. Div. 200, 58 N. Y. Supp. 745 ; Boosevelt v. Nius- haum, 75 App. Div. 117.) " The party making the promise is bound to nothing until the promisee within a reasonable time engages to do or else does or begins to do the thing which is the condition of the first promise. Until such engagement or such doing, the promisor may withdraw his promise because there is no mutuality and therefore no consideration for it. But if without any promise whatever the promisee does the thing required, then the promisor is bound on another ground. The thing done is itself a completed consideration, and the original promise to do some- thing if the other party would do something is a continuing promise until the other party does the thing required of him." (1 Parsons on Contracts, 8th ed., p. 466.) It is upon this theory principally that subscribers to funds for charitable, educational or religious purposes are held liable upon their engagements. (See Barnes v. Ferine, 12 IST. Y. 18 ; Hutchins v. Smith, 46 Barb. 235 ; Wilson V. Baptist Education Society of New YorJc, 10 Barb. 308 ; Boherts V. CoU, 103 ]Sr. Y. 600 ; Eeuka College v. Bay, 41 App. Div. 200.) An option is not an agreement for the sale of property, but is simply a continuing offer or contract by which the owner stipulates with another that he shall have the right to buy the property at a fixed price within a certain time, and unless it be founded upon a consideration it may be revoked or withdrawn at any time before acceptance. (Quick v. Wheeler, 78 ISr. Y. 300 ; Benedict v. Pincus, 191 N. Y. 377 ; Pomeroy v. Newell, 117 CON"TEACTS GENEEALLY AND RIGHTS OE PARTIES. 39 App. Div. 800; Ganss v. Guffey Petroleum Co., 125 App. Div. 760.) It ■was held by a divided court, in the case last cited, that the expenditure of money, hy the party to whom the option was given, solely for the purpose of enabling him to determine whether he would accept the ofFer and pur-- chase the property at the stipulated price, did not furnish such a con- sideration as would preclude the party making the offer from withdrawing it before acceptance. § IS. Assent of parties; in general. To constitute a valid contract, it is necessary that there be an assent of the contracting parties. The assent of the parties is usually the result of an offer by one party and an acceptance of such offer by the other party. When the parties meet each other personally, the conversation between them determines whether there has been an offer and acceptance sufficient to constitute a contract. But, when the parties conduct their negotiations at a distance by letters or telegrams, whether there has been such a meet- ing of the minds as to constitute a contract is sometimes a difficult ques- tion involving the construction of the different communications. In order to establish a legal contract through the medium of correspond- ence, it must be made to appear that there was not only a plain, unequivo- cal offer, but that the acceptance of such an offer was equally plain and free from abiguity. In other words, there must have been an exact meet- ing of the minds of the contracting parties, in respect to every detail of the proposed contract, and if the precise thing offered was not accepted; or if the acceptance was in any manner qualified by conditions or reserva- tions, however slight they may have been, the universal rule seems to be that no valid contract is thereby established, but that such a modified or qualified acceptance must rather be treated as a rejection of the offer. (Myers v. Smith, 48 Barb. 614; TJUman v. Day, 38 Hun, 298; Myers v. Trescott, 59 Hun, 395; Sidney Glass Works v. Barnes & Co., 86 Hun, 374 ; Chicago, etc., B. B. Co. v. Dane, 43 IST. Y". 240 ; Barrow Steamship Co. v. M. G. B. Co., 134 IST. Y. 15 ; Mahar v. Compton, 18 App. Div. 536 ; Brudhaher v. James, 57 App. Div. 527.) In order to make an agreement where an offer is made by one party to another when they are not together, the acceptance of the offer by the other must be manifested. It is not necessary that the acceptance comes to the knowledge of the party making the offer before he shall be bound, if the manifestation of the acceptance be put in the proper way of reaching him ; but mental determination, not put in course of indication by act to the other party, is not such acceptance. {White v. Corlies, 46 N. Y. 467.) On a sale of goods where the seller understood that the terms of the 40 CIVIL LAW AND PKACTICE. sale were that they were to be paid for in a note indorsed generally by the buyer, but the buyer understood that it was to be indorsed without recourse, it was held that there was no contract, and as the goods had been delivered to the buyer, and he did not return them, he was liable to pay for them. (Baldwin v. Middleburger, 2 Hall, 176.) Where a landlord and tenant mutually suppose that they have agreed upon the rent, but one under- stands it to be fixed at a certain rate, and the other at a lower rate, there is no agreement, and the tenant must pay as much as the premises are reasonably worth. (Scranton v. Booth, 29 Barb. 171.) That which is due by the parties under a supposed contract, where there was such mutual misunderstanding that their minds never met so as to make a contract, is not binding. {Fullerton v. Dalton, 58 Barb. 236.) To constitute a binding contract, the minds of the parties must have met upon every material provision, whether of primary or secondary consequence, con- tained in it. (Sanders v. Pottlitzer Bros. Fruit Co., 53 St. Kep. 645.) Where an offer, proposal or contract is expressed in clear and explicit terms, matter printed in small type at the top or bottom of the office stationery of the writer, where it is not easily seen, which is not in the body of the instrument or referred to therein, is not necessarily to be con- sidered as a part of such offer, proposal or contract. (Sturtevant Co. v. Fireproof Film Co., 216 N. Y. 199.) § 16. Assent of parties, formal contract to be subsequently drawn. Where all the substantial terms of a contract have been agreed upon by the parties to a negotiation, and nothing is left for future negotiation and settlement, the fact that it was the understanding that the contract should be formally drawn up and put in writing, does not leave the transaction incomplete and without binding force, in the absence of a positive agree- ment that it should not be binding until so reduced to writing and formally executed. (Sanders v. Pottlitzer Bros. Fruit Co., 144 N. Y. 209 ; Disken V. Herter, 73 App. Div. 453, 77 N. Y. Supp. 300.) But it is always com- petent for the parties to a contract to agree upon the method of its execu- tion and delivery, and if any material stipulation relating thereto remains unperformed by them, the instrument will not take effect as their contract. (Brachett v. Barney, 28 IST. Y. 333 ; Whitford v. Laidler, 94 IST. Y. 145 ; Ferguson Contracting' Co. v. Helderherg Cement Co., 135 App. Div. 494, 120 ISr. Y. Supp. 317.) §17. Assent of parties ; fraud. An instrument procured by fraud, trick or artifice, or executed by a party in such a state of intoxication as to be incapable of consenting or OONTEACTS GENEKALLT AND EIGHTS OF PAETIES. 41 contracting, is invalid as between the parties to the transaction. These facts, however, do not always constitute a defense as against an innocent person, who is himself free from any fraud or negligence, and who has advanced money or property to another upon the credit afforded hy the instrument. But even in such a case, the person who has signed the paper is not liable upon it unless it is found that he failed to observe proper care and caution, and was chargeable with negligence in attaching his signature. If he actually signed the paper, though procured to do it by fraud, and is chargeable with negligence, he is liable to an innocent party who acted to his prejudice upon the face of the instrument. Such cases are not gov- erned by the rules applicable to the hona fide holder of negotiable paper procured by fraud, but by the equitable rule that where one of two innocent parties must suffer, he who has put it in the power of a third person to commit the fraud must sustain the loss. (Page v. Krekey, 137 '^. Y. 307.) § 18. Interpretation of contracts ; in general. After a contract has been proved, it is many times necessary to ascertain what the contract means. 'Eo one always uses words in such a manner that their meaning is never a question of doubt. In ascertaining the mean- ing of a contract, the intent of the parties is sought, and rules of law of more or less force have been developed to aid in determining such intent. In construing a contract, the whole instrument is to be considered, for the use of a few words or sentences may cloud rather than clear the question. {Eoles V. Borough Pack Co., 142 App. Div. 765, 127 K Y. Supp. 671.) A contract is to be construed in the light of the circumstances surrounding its execution, but this rule authorizes only a just construction of ita language and a common understanding of the contracting parties, and does not permit the making of a new contract or a reformation of it, or a dis^ regard of its terms. {Mdune v. Unity Press, 143 App. Div. 94, 127 N. Y. Supp. 1002.) It is not the province of courts to change the terms of a contract which has been entered into, even though it be harsh and unrea- sonable, for the folly or wisdom of a contract is not for the courts to pass upon. Its terms, however burdensome, must be enforced if such is the clear meaning of the language used. {Cohen v. Walworth, 95 Misc. 479, 158 N. Y. Supp. 1081.) § 19. Interpretation of contract; intent is primary consideration. The primary and controlling rule in the construction of contracts is that the intention of the parties shall be determined. ( Qail v. Oail, 127 App. Div. 892, 112 ISr. Y. Supp. 96 ; Hargraves Mills v. Gordon, 137 App. Div. 42 CIVIL LAW AND PKACTICE. 675, 122 ]Sr. Y. Supp. 245 ; People ex rel. New York Central, etc., B. Co. V. Walsh, 211 N. Y. 90.) The great object, and practically the only foundation of rules for the construction of contracts, is to arrive at the intention of the parties. (Oillet v. Bank of America, 160 !N. Y. 549; Worthington v. Hermann, 89 App. Div. 627, 88 N. Y. Supp. 76.) It is, therefore, held that in the construction of contracts it is the duty of the court to put itself, as near as may be, in the situation of the parties, and from a consideration of the surrounding circumstances and the occasion and apparent object of the parties, determine therefrom the meaning and intent of the language employed in framing the agreement. (Smith v. Kerr, 108 K Y. 31; Solomon Tobacco Co. v. Cohen, 95 App. Div. 297, 88 IST. Y. Supp. 641. ) All rules of interpretation of a contract are aimed to one purpose and that is to discover the intention of the parties. One element of a contract may be more helpful than another to indicate inten- tion. To certain types of agreements the courts have ascribed greater rela- tive potency, so that in the absence of other overmastering terms they by their own force establish intention, but no rule is per se determinative. (Clark V. West, 137 App. Div. 23, 122 IST. Y. Supp. 380.) A contract of guaranty is to be construed by the same rules as govern the construction of other contracts, that is, the intention of the parties is to be ascertained and enforced if it be lawful and adequately expressed. (Clausen v. Title Guaranty & Surety Co., 168 App. Div. 569, 153 N. Y. Supp. 835.) § 20, Interpretation of contracts; construction against party preparing contract. • Where a contract is so manifestly ambiguous that reasonable and intelli- gent men would honestly difPer as to its meaning, the doubt should be resolved against the party who prepared and executed the agreement and is responsible for the language used. (Kratzenstein v. Western Assurance Co., 116 IST. Y. 54; United Waterworks Co. v. Omaha Water Co., 164 ]Sr. Y. 41 ; Industrial & General Trust Co. v. Tod, 180 E". Y. 215 ; Jack- son V. Builders' Wood-working Co., 91 Hun, 435, 36 IST. Y. Supp. 227 ; Comey v. United Surety Co., 217 IST. Y. 268 ; Elwood v. Goldmam., 217 "E. Y. 585 ; Staten Island Shipbuilding Co. v. Spearin, 149 App. Div. 854, 134 N. Y. Supp. 98.) The reason for this rule, that the language of an instrument is to be construed against the person who proposes it rather than against the person who is invited to accept it, is that men are sup- posed to take care of themselves and he who chooses the words ought to be held to a strict interpretation of them rather than he who accepts them. (Staten Island Shipbuilding Co. v. Spearin, 149 App. Div. 854, 134 ]Sr. Y. Supp. 98.) Where fruit trees are sold by a traveling agent, any 00:N'TKACTS GENEEALLY and eights of PAETIES. 43 ambiguity in the contract embodied in a printed form is to be construed in favor of the buyer. {Sanford v. Brown Bros. Co., 134 App. Div. 652, 119 N^. Y, Supp. 333.) Where a contract is drawn by the defendant's lawyers and tendered to the plaintiff with the assurance that his future for the next five years would be secure, if its meaning is doubtful, the contract is to be construed most favorably for the plaintiff. (Morcm v. Standard Oil Co., 211 IST. Y. 187.) It is a general rule of law that where the language of a promisor may be understood in more senses than one, it is to be interpreted in the sense in which he had reason to suppose it was understood by the promisee. (Gillet v. BanJc of America, 160 IST. Y. 549, 555; Tracy v. First Nat. Bank, 48 App. Div. 285, 62 E". Y. Supp. 657; White v. Hoyt, 73 K Y. 505; Stanton v. Erie R. Co., 131 App. Div. 879, 116 K Y. Supp. 375; Wolf V. United States Casualty Co., 101 Misc. 541, 167 K Y. Supp. 673.) If it is doubtful, in view of the general tenor of an instrument and the relations of the contracting parties, whether given words were used in an enlarged or restricted sense, other things being equal, that construction should be adopted which is most beneficial to the promisee. (Hoffman v. Aetna Ins. Co., 32 N. Y. 405 ; Belden v. Burhe, 72 Hun, 51.) §21. Interpretation of contracts ; practical construction. It has many times been held that the practical construction put upon a contract by the parties to it is sometimes almost conclusive as to its mean- ing^ and that there is no surer way to find out what the parties mean than to see what they have done. (Fox v. Coggeshall, 95 App. Div. 410, 88 K Y. Supp. 676; Nicoll v. Sands, 131 IST. Y. 24; Insurance Co. v. Butcher, 95 U. S. 273 ; Maloney v. Iroquois Brewing Co., 63 App. Div. 454, 71 N". Y. Supp. 1098 ; Woolsey v. Funke, 121 IST. Y. 87 ; Sattler v. Halloch, 160 K Y. 291 ; Matter of Eurela Mower Co., 86 Hun, 309 ; McClanathan v. Friedel, 85 Hun, 175 ; Hargraves Mills v. Gordon, 137 App. Div. 695, 122 N. Y. Supp. 245 ; Schachne v. Chamber of Commerce Corp., 102 Misc. 197, 168 K Y. Supp. 791.) If ambiguity exists in a con- tract, the practical construction put upon it by the subsequent conduct of the parties thereto is a valuable aid in determining its true meaning. (Jarvie v. ArhucUe, 163 App. Div. 199, 148 N. Y. Supp. 189.) But it is only where the language of a contract is indefinite or ambiguous that the acts of the parties in carrying it out are received as a practical con- struction of it. (Hill v. Priestly, 52 ~R. Y. 635; Maloney v. Iroquois Brewing Co., 63 App. Div. 454; Elefante v. Pizitz, 182 App. Div. 819, 169 N. Y. Supp. 910.) 44 CIVIL LAW AN^D PEACTICE. § 22. Interpretation of contracts; reasonable construction sought. It is a general rule of construction that the words of a contract will be given a reasonable construction where that is possible, rather than an unreasonable one, and also that the court will endeavor to give a con- struction most equitable to both parties, instead of a construction which would give one of them an unfair or unreasonable advantage over the other. (Fleischman v. Furgueson, 223 1^. Y. 236; Heller v. Kalisch, 141 App. Div. 205, 125 IST. Y. Supp. 1057.) Where there is an uncer- tainty or doubt as to the meaning of words or phrases used in a oontraet, in seeking for the intent of the parties as evidenced by the words used, the fact that a construction contended for would make the contract unreason- able, and place one of the parties entirely at the mercy of the other, may properly be taken into consideration. {Russell v. Allerton, 108 N. Y. 288; Pollock v. Penn. Iron Works Co., 13 Misc. 194; Eeyn v. N. Y. Life Ins. Co., 192 IST. Y. 1; Schoelikopf v. Coatsworth, 166 K Y. 77.) § 23. Interpretation of contracts ; reference to usage. When the usage in relation to matters embraced in a contract is rea- sonable, uniform and well settled, not in opposition to fixed rules of law, nor in contradiction of the expressed terms of a contract, and when the usage is so far established and known to the parties that it may be sup- posed that the contract was made in reference to it, it is deemed to form a part of the contract, and may be shown in order to enable the court to declare what the contract expressed to the parties. There are usages, so restricted to locality, trade or business, that a party ignorant of them is not presumed to have contracted with reference to them. (Booth Bros. V. Baird, 87 Hun, 452.) § 24. Interpretation of contracts ; general and specific words. Where words of general description are associated with words of par- ticular description, the general words, in the absence of anything clearly manifesting a contrary intent, are to be construed and limited so as to be ejusdem generis with the particular words. (Belden v. Burke, 72 Hun, 51, 83, 25 N". Y. Supp. 601 ; Ducker v. Del Oenovese, 93 App. Div. 575, 578.)' But, while it is a well-established rule of construction that general expressions in a contract will be restricted by particular descriptions or additions following them, like other rules of construction, the rule is applied to determine the intent of the parties and not to thwart such intent. When applied it does not destroy entirely the force of the general words, but limits their force so that they cover only the class in which the CONTKACTS GENEEALLY AND EIGHTS OF PAETIES. 45 particular words fall. (^Davids Co. v. Hoffman-LaBoche Chemical Works, 97 Misc. 33, 160 N. Y. Supp. 973.) § 25. Interpretation of contracts; conflict between written and printed portions. In construing instruments which are in part printed and in part written on printed blanks, a preference should be given to the written part. {Harper v. Albany Mutual Ins. Co., 17 1^. Y. 194; Weisser v. Maitland, 3 Sandf. 318, 322; Heyn v. New York Life Ins. Co., 192 IST. Y. 1; Kratzenstein v. Western Assurance Co., 116 IST. Y. 54, 57.) This rule is applied with great liberality, where it appears that the printed matter is in obscure type or placed where it would not be likely to be seen, or where the printed matter was evidently not intended to be incorporated in the contract. In such cases, the printed matter is accorded little influence in changing the clear and explicit language of the contract, {Poel V. Brunswick-Balke-CoUender Co., 216 IST. Y. 310.) When repug- nancy exists between the written and printed clauses of an instrument, that which is written prevails over that which is printed, but because there was a conflict between the printed and written clauses as to the date of delivery it does not follow that all the other printed clauses of the con- tract are to be disregarded. The instrument is to be construed as a whole and effect is to be given to every word and expression contained in it where there is no irreconcilable conflict. {Poel v, Brunswick-Balke- Collender Co., 216 N. Y. 310.) If the whole contract can be construed together so that the written words and those printed make an intelligible contract, such construction should be adopted, because the intention of the parties is presumed to be alive and active throughout the whole instru- ment, and it is presumed that no averments are anywhere inserted without meaning and without use. (Hutt v. Zimmer, 78 Hun, 23.) § 26. Interpretation of contracts; agreement for liquidated damages. An agreement for stipulated damages, for the breach of a contract, necessarily implies that they are to be received in satisfaction of and complete compensation for the breach to which such stipulation is applica- ble. (Shiell V. McNitt, 9 Paige, 101.) Where a contract contains an express stipulation that in case of a bleach of the contract the party in default shall pay to the other a speci- fied sum as liquidated damages, the language used is not necessarily con- trolling in respect to the construction of the contract in this regard or the amount recoverable as damages. Such provision will be treated as liqui- dated damages only in those cases where from the nature of the trans- 46 CIVIL LAW A'N'D PEACTICE. action the actual damages consequent upon a breach of the contract are incapable of accurate measurement, or where the sum specified in the instrument is not out of all proportion to any damages which could possibly arise from the breach. In the cases where these general features do not exist, the tendency of the courts is to treat the stipulation not as providing for liquidated damages, but in the nature of a penalty. Where the language of such a provision specifying the amount of damages to be paid in case of a breach of the contract is clear and explicit to that effect, the amount is to be deemed liquidated damages when the actual damages contemplated at the time the agreement was made are in their nature uncertain and unaseertainable with exactness and may be dependent upon extrinsic considerations and circumstances, and the amount is not on the face of the contract out of all proportion to the probable loss. (Curtis v. Van Bergh, 161 JST. T. 47 ; Ward v. Hudson Eiver Bldg. Co., 125 IST. Y. 230 ; Caesar v. BuUson, 174 IST. Y. 492.) § 27. Interpretation of contracts; provision giving one party right to construe contract. No effectual provision can be inserted in any contract which confers upon one of the parties the right to construe the contract and makes the construction by such party final. No one can be made by contract the final judge of his own acts. The effect of such provision is to make the construction of the contract by the party to whom the power is given final in case he acts in good faith, but not otherwise. (Industrial & General Trust V. Tod, 180 N. Y. 215.) § 28. Validity of contracts ; in general. All contracts or agreements which have for their object anything which is repugnant to justice, or against the general policy of the common law, or contrary to the provisions of any statute, are void ; and whenever a con- tract or agreement is entered into with a view to contravene any of these general principles, there is no form of words, however artfully introduced or omitted, which can prevent the courts from investigating the truth of the transaction. (Gray v. HooTe, 4 N. Y. 449.) It is a general rule that illegal or prohibited contracts are void although not expressly so declared by statute. (Barton v. Port Jachsouj etc.. Plank Boad Co., 17 Barb. 397; Oneida Bank v. Ontario Bank, 21 N. Y. 495; Rorton v. Erie E. B. Co., 65 App. Div. 590; Sirhin v. Fourteenth Street Store, 124 App. Div. 384 ; Swing v. Dayton, 124 App. Div. 58.) To this rule there are exceptions. A contract by a corporation endeavoring to CONTEACTS GENEEALLY AND EIGHTS OF PAETIES. 47 practice law in prohibition of section 280 of the Penal Law is invalid and will not be enforced. {United States Title Guaranty Co. v. Brown, 86 Misc. 287, 149 N. Y. Supp. 186.) Parol evidence is always competent to show that the consideration for a written contract is illegal, for, if a different rule prevailed, the parties to an illegal contract could make them enforceable by the simple device of putting them in writing and using such words as would conceal or omit the illegal objects sought to be accomplished. (Si. Hubert Guild v. Quinn, 64 Misc. 336, 118 IST. Y. Supp. 582.) The validity of a contract is to be determined as of the time when it was made. (Appleton & Co. v. Warlassa, 92 Misc. 42, 155 N. Y. Supp. 987.) § 29. Validity of contracts ; contracts against good morals. Contracts against good morals are frequently held to be void. Thus a contract letting premises for purposes of prostitution is void. ( Updyhe V. Campbell, 4 E. D. Smith, 570.) And, where the consideration of a contract is the compounding of a felony, the contract cannot be enforced. (Strauss Linotyping Co. v. Schwalbe, 159 App. Div. 347, 144 N. Y. Supp. 549; Catskill Nat. Bank v. Lasher, 165 App. Div. 548, 151 IST. Y. Supp. 191 ; Doucet v. Massachusetts Bonding & Ins. Co., 180 App. Div. 599, 167 !N^. Y. Supp. 892.) Where the consideration of a contract is the agreement not to prosecute one for a felony, the contract is void in ita inception and continues void and cannot be given validity by ratification. {Strauss Linotyping Co. v. Schwalbe, 159 App. Div. 347, 144 I^, Y. Supp. 549.) A contract for forbidden work on Sunday is void and not capable of ratification. {Hamilton v. Gridley, 54 Barb. 542.) Where by a con- tract it was agreed that for the work of seven days constituting a week, from a certain time to a certain time, one of the parties thereto should be guaranteed and receive compensation to be paid weekly, the contract cannot consistently, with the intent of the parties, be construed to give an option to the party to whom the guaranteed amount was to be paid to work on Sundays or not as he chose. And, where by the operation of the contract Sundays came within its terms, the contract was void and the guaranty could not be enforced. {McClanathan v. Friedel, 85 Hun, 175.) A contract for the sale of obscene literature is against good morals and is void. But the sale of those books which are generally considered as literary classics is not forbidden, though present-day views of morality may condemn them. {St. Hubert Guild v. Quinn, 64 Misc. 336, 118 N. Y. Supp. 682.) 48 CIVIL LAW ANT) PEACTICE. § 30. Validity of contracts ; contracts against public policy. Contracts against public policy are of a class that cannot be enforced. Thus, it would be contrary to a sound public policy to recognize and to enforce an agreement to recompense a party for giving his evidence in an action to be commenced (Lyon v. Hussey, 82 Hun, 15 ; Cowles v. Rochester Folding Box Co., 179 IST. Y. 87 ; Laffin v. Billington, 86 N. Y. Supp. 267, 14 'E. Y. Am. Cases, 360) ; or to enforce an agreement to pay an expert a stated sum for making an appraisal of certain property, vs^here one condition of the agreement is that his testimony shall give a value substantially less than the testimony of an opposing expert {Hough v. State of New York, 145 App. Div. 718, 130 IS. Y. Supp. 407) ; or to enforce an agreement to refer all matters of difference or dispute which may arise to arbitration (Delaware & Hudson Canal Co. v. Pennsylvania Coal Co., 50 ]Sr. Y. 250; Beward v. City of Rochester, 109 JST. Y. 164; National Contracting Co. v. Hudson River Water Power Co., 192 JST. Y. 209 ; Sutro v. Balk, 151 IST. Y. Supp. 764) ; or any contract which provides for the sale by an individual of the right given to him with others by legislative enactment to give or withhold his consent to any project affect- ing a public interest and where the giving or withholding of such consents may become the basis of governmental action (Biggs v. Ryan, 121 N. Y. 301) ; or any contract which has for its object the procuring of legislative action (Veasey v. Allen, 61 App. Div. 119; Mills v. Mills, 40 JST, Y. 543) ; or contracts by which the parties to them combine for the purpose of creating a monopoly in restraint of trade, to prevent competition, to control and thus to limit production, to increase prices and maintain them. (Cummings v. Union Blue Stone Co., 164 N. Y. 401 and cases cited.) While contracts between vendor and vendee in restraint of trade will be upheld, they are not to be treated with special indulgence. They are intended to secure to the purchaser of the good will of a trade or busi- ness a guaranty against competition by the vendor. When this object is accomplished in the absence of any further precise and clear stipulation, it will not be presumed that more was intended. (Greenfield v. Gillman, 140 ]Sr. Y. 168.) In order to invalidate a contract on the ground that it is immoral or against public policy, it should appear that the agreement itself con- templated illegal acts or acts condemned as against good morals or public policy ; it is not sufficient that acts were done which might be condemned. (Appleton & Co. v. Warlasse, 92 Misc. 42, 155 N. Y. Supp. 987.) A provision in a lease that it shall not be put in evidence in an action between the parties relating to the subject matter thereof, is not enforce- able, for the court cannot permit itself to be ousted of the right to consider CONTEACTS GENEEALLY AND EIGHTS OF PAETIES. 49 competent evidence by a provision in a contract that it shall not be put in evidence. {Leak, etc.. Orphan Rouse v. Hoyle, 79 Misc. 301, 139 N. Y. Supp. 1098.) § 31. Validity of contracts; enforcement of illegal contract. It is a general rule that the courts will not aid either party in enforcing an illegal executory contract; nor, if executed, will they aid either party in setting it aside or in recovering back what has passed under it. (Nellis V. Clark, 4 Hill, 424; Haynes v. Budd, 83 IST. Y. 251; Woodworih v, Bennett, 43 JST. Y. 273 ; Knowleton v. Congress & Empire Spring Co., 57 N. Y. 518; Goodrich v. Houghton, 134 IST. Y. 115; Materne v. Hor- witz, 101 1:^. Y. 469 ; Doucet v. Massachusetts Bonding & Ins. Co., 180 App. Div. 599, 167 IST. Y. Supp. 892.) This rule applies where the parties to the illegal contract are equally in fault and equally guilty of violating the statute; and the court will, under certain circumstances, relieve a party to a contract which the other party was prohibited by statute from making. {Tracy v. Talmage, 14 N. Y. 162; Curtis v. Leaviti, 15 IST. Y. 9 ; Sacketts Harbor Bank v. Codd, 18 N. Y. 240 ; Irwin V. Curie, 171 N. Y. 409.) Therefore, when a contract, otherwise unob- jectionable, is prohibited by a statute which imposes a penalty upon one of the parties only, the other is not in pari delicto, and where the contract, is not malum in se he may recover as upon an implied assumpsit against the party prohibited or upon whom the penalty is imposed for any money or property which he has advanced upon such contract. (Akers v. Mutual Ufe.Ins. Co., 59 Misc. 273 ; 112 N. Y. Supp. 254.) § 32. Contracts void and contracts voidable. A contract may be void, or it may be merely voidable, and there is a broad distinction between the two as to the rights and liabilities of the parties. Using the term in its exact sense, and limiting it to the parties them- selves, a void contract is binding upon neither party and cannot be ratified. Even if ratified in form by both, it would be a new contract and would take effect only from the date of the attempt at ratification. A voidable contract, on the other hand, binds one party but not the other, and the latter may rescind or ratify at pleasure. (Blinn v. Schwarz, 177 E". Y. 252, 259.) Contracts to defraud creditors, contracts made under duress or while one of the parties was intoxicated and the like, are not void but voidable at the option of the injured party, while contracts to do acts forbidden by law, such as refusing to obey a subpoena, are utterly void. (Blinn v. 4 50 CIVIL LAW AND PEACTICE. Bchwarz, 177 ]Sr. Y. 252, 259.) A contract procured by duress exercised by means of threats is not void but voidable; and as a general rule only the party upon whom the duress was exercised may take advantage of it to avoid the contract. The right of avoidance is purely personal to the party coerced, who must act within a reasonable time to avoid the con- tract. {Colon (& Co. V. East One Hundred and Eighty-ninth Street Bldg. Co., 141 App. Div. 441, 126 N. Y. Supp. 226.) The contracts of infants are not absolutely void but only voidable. {Parsons v. Teller, 111 App. Div. 637.) As to contracts purely executory it must be shown that an infant party ratified them after he became of age before they can be enforced against him. {Beardsley v. Hotchlciss, 96 N. Y. 201.) An executory contract relating to the personal property of an infant may be avoided by the infant during infancy. {Bool v. Mix, 17 Wend. 119 ; Stafford v. Boof, 9 Cow. 626 ; Chapin v. Shafer, 49 IST. Y. 407; Petvie v. Williams, 88 Hun, 292, 34 N", Y. Supp. 670.) The privi- lege thus allowed to infants by the law is entirely for their benefit and protection, and other parties cannot set it up for their own benefit. {Jack- son V. Carpenter, 11 Johns. 539, 543.) As to the executed contracts of infants, such as deeds of lands or conveyances of personal property, they will generally be deemed to be ratified unless disaffirmed during infancy or within a reasonable time thereafter. {Beardsley v. Hotchlciss, 96 N. Y. 201, 211.) On, arriving at full age they may ratify and confirm their contracts or rescind and break through them as shall seem most for their advantage {Jackson v. Carpenter, 11 Johns. 539 ; Green v. Oreen, 69 N. Y. 533) though the ordinary rule is that although an infant may rescind an executed contract at will, he must restore or offer to restore to the party with whom he contracted what he received under the contract. {Mutual Milk & Cream Co. v. Prigge, 112 App. Div. 652, 98 IST. Y. Supp. 458; Bice v. Butler, 160 IS]". Y. 578; Pierce v. Lee, 36 Misc. 870; Crummey v. Mills, 40 Hun, 370 ; Wheeler & Wilson Mfg. Co. v. Jacobs, 2 Misc. 236.) Contracts of lunatics and infants are similar in their character and in their effect on the contracts of the parties. The deed of a person of unsound mind who has not been judicially declared incompetent is void- able, and not absolutely void. {Blirm v. Schwarz, 177 IT. Y. 252 ; Smith V. Byan, 191 IST. Y. 452 ; Lewis v. Byan, 123 App. Div. 497.) § 33. Modification of contract. Before the breach of a written contract not under seal, it may be modified, or the performance thereof wholly waived by the oral agreement of the parties, provided the substituted contract is not one which the GONTEACTS GENEEALLY AND EIGHTS OF PAETIES. 51 Statute of Frauds require to be in writing. (Farrington v. Brady, 11 App. Div. 1, 42 E". Y. Supp. 385 ; Eagle Iron Works v. Farley, 83 App. Div. 82, 82 K Y. Supp. 603 ; Solomon v. Valleite, 152 E". Y. 147.) But a contract or covenant under seal cannot be modified by a parol unexecuted agreement {Voege v. Ronalds, 83 Hun, 114, 31 N. Y, Supp. 353; Coe v. Eohby, 1 Hun, 157, 72 IST. Y. 141; Smith v. Kerr, 33 Hun, 567, 571, 108 ]Sr. Y. 31; Delacroix v. Bulhley, 13 Wend. 71; Dodge v, CramdaU, 30 ]Sr. Y. 306, 307; Farrington v. Brady, 11 App. Div. 1; Howie v. KasnowHz, 83 App. Div. 295) ; but an executed parol modification of a sealed instrument is valid and enforceable. {Davis v. Bingham, 39 Misc. 299 ; McCreery v. Day, 119 K Y. 1 ; McKenzie v. Harrison, 120 N. Y. 260.) A written unsealed agreement containing a stipulation that no modifica- tion thereof should be binding unless in writing duly accepted by the parties, may be orally modified by the assent of the parties. {General El. Co. V. Nat. Contracting Co., 178 N. Y. 369.) § 34. Rescission of contract. One who has been induced to enter into a contract by means of fraud- ulent representations may rescind the contract on discovery of the fraud. (Hutcheon v. Johnson, 33 Barb. 392.) A contract, although fraudulently procured, is not void, but is voidable at the election of the party defrauded. He may either affirm or disaffirm the contract, but he cannot do both, either in whole or in part. He should make his election at the earliest moment after discovery of the fraud and so proceed thereafter that there may be no question as to whether he has elected to affirm Or disaffirm the contract. The taking of any benefit under the contract after knowledge of the fraud, or changing the condition of the property which is the subject matter of the contract, is a ratification of it. {Cobh v. Hatfield, 46 K Y. 533; Masson v. Bovet, 1 Denio, 69; Outcault v. Bonheur, 120 App. Div. 168.) Effective rescission requires a lawful right to rescind, due notice of an intention to rescind, and the restoration of benefits received by the party attempting to rescind so that the other party may be placed in statu quo. Even if the most complete right of rescission exists, it cannot be exercised without a return or an offer to return such benefits. {Cox v. Stohes, 156 N. Y. 491, 506; Cobh v. Hatfield, 46 IST. Y. 533; Baker v. Bobbins, 2 Denio, 136 ; Gould v. Cayuga County Nat. Bank, 86 N. Y. 75 ; Moyer v. Shoemaker, 6 Barb. 319 ; Getty v. Devlin, 54 N. Y. 403, 415 ; Outcault V. Bonheur, 120 App. Div. 168; Hogan v. Weyer, 5 Hill, 390.) To retain any part of that which has been received upon the contract is 52 CIVIL LAW A^D PKACTICE. incompatible with its rescission. (Masson v. Bovet, 1 Denio, 69 ; Voorhies V. Earl, 2 Hill, 288; Hogan v. Weyer, 5 Hill, 389.) The tender of that which was received under the contract must be without qualifications or conditions. (Gould v. Cayuga County Nat. Bank, 86 E". Y. 75.) The effect of the avoidance of an agreement on the ground of fraud is to place the parties in the same position as if it had never been made; and all rights which are transferred, released or created by the agreement are revested, restored or discharged by the avoidance. (Id.) If the fraudulent vendee, or one in privity with him, has disbursed money in order to get possession of the property sought to be recovered and enable him to consummate the fraudulent scheme to deprive the vendor of his property, the law does not require the defrauded party to reimburse the fraudulent vendee for his expenditures. ( Chickenheimer v. Angevine, 81 IST. Y. 3'94.) And if what one obtains by a fraudulent contract is absolutely of no value whatever, he need not return it before disaffirming the contract. The law does not require an idle ceremony. (Gould v. Cayuga Nat. Bank, 86 N". Y. 75.) So where a vendor upon a sale induced by fraud has taken the vendee's ovrai note, the vendor may repudiate the contract and bring his action to recover the property without first sur- rendering the note. (Nichols v. Michael, 23 ]^. Y. 264.) The rule requiring the return of whatever has been received under a contract before disaffirming the contract applies only as to the original parties. And where a fraudulent vendee, after obtaining the possession of property by fraud, has parted with the possession of the property to a fraudulent holder, there is nothing to be done by the vendor towards the person in possession but to demand the possession of the property. (Pearse v. Pettis, 47 Barb. 276.) So where one of the parties to a contract has attempted to rescind it, and the other party has accepted the situation and brought an action to recover the consideration paid by him, treating the contract as if the abandonment and rescission of it by the other party was binding upon all parties, the rule that the party seeking rescission of a contract must return what he has received under it, has no application. (Brewster V. Wooster, 131 N". Y. 473.) And where the plaintiff seeks merely to recover damages for a fraud practiced upon him in a matter of contract, he may recover without rescinding the contract and delivering up the prop- erty. It is only where he seeks to recover back money paid or goods delivered in the performance of a contract, that he is bound to place the other party in the same condition that he was in before the contract by restoring or offering to restore what he has received on account of it. (Ely V. Mumford, 47 Barb. 629.) CONTEACTS GENEKALLY AND EIGHTS OF PAETIES. 53 § 35. Performance of contract ; in general. As a general rule, before a party can recover upon a contract, he must show that he himself has performed his part of the contract. (Broadbent V. Marley, 27 Misc. 778 ; Oakley v. MoHon, 11 N". Y. 25 ; Fox v. Satterlee, 8 N. Y. Supp. 879.) One cannot recover upon an uncompleted contract, Vi^here the failure of performance is due to his own act. (Winehurgh Advertising Co. v. Bloom, 128 N. Y. Supp. 562.) Where one party to an executory contract prevents the performance of it, or puts it out of his own power to perform it, he has committed a breach of the contract which relieves the other party from the obligation of full performance on his part. (Rosenthal Paper Co. v. National Folding Box & Paper Co., 175 App. Div. 606, 162 N. Y. Supp. 814.) A condition precedent must be strictly performed to entitle a party to recover. {Oakley v. Morton, 11 N". Y. 25.) Thus, where a party has contracted to deliver a quantity of lumber at a given day, at a specified price per foot, to be paid for on the delivery of the whole, if he delivers only a part by the day specified he cannot recover for the part delivered though it be used by the vendee, as the contract is entire, and the delivery of the whole of the lumber by the day specified is made by the contract a condition precedent to the right to the payment for any part. {Paige v. Ott, 5 Denio, 406.) So where goods have been received and used by a vendee under a contract for the delivery of specified quantities at different times, and the quantity delivered is less than that required by the contract, the breach is a bar to an action for the price. (Catlin v. Tohias, 26 IST. Y. 217.) And the doctrine is undisputed that where a special contract is entered into, which is entire, for the sale and delivery of property, a full performance by the vendor is a condition precedent to his right of action against the vendee for the price of the property delivered by the vendo]? under the contract. {Pratt v. Gulich, 13 Barb. 297.) But where the goods purchased are not to be delivered in parcels at different times, but by one and a single delivery, and the vendee elects to receive a portion and appropriates the same to his own use, such receipt and use is evidence of a waiver of the condition precedent, and the vendee may be compelled to pay for what was actually delivered. {Avery v. Willson, 81 N. Y. 341.) These cases are illustrations of the well estab- lished rule that when a plaintiff seeks to enforce a contract by action, he is not entitled to recover where its true interpretation depends upon the condition of performance by him, unless performance is shown, or unless actual waiver with full knowledge of the facts is proved. {People's Bank V. Mitchell, 73 'N.Y.iOQ.) It is not universally true that a party to a contract who has himself 54 CIVIL LAW AND PEACTICE. failed to perform some of its provisions is thereby precluded from recover- ing damages for a breach committed by the other party. The question in such cases is, whether the stipulation which the plaintiff has failed to observe was a condition precedent to the performance by the defendant ; and whether it is of that character or not depends upon the general scope and Intention of the agreement to be gathered from its several provisions. (Tipton V. Feitner, 20 IST. Y. 423.) A party alleging performance is bound to establish that fact, and fail- ing to do so, no recovery can be had. (La Chicotte v. Richmond B. & El. Co., 15 App. Div. 380 ; Schnaier v, Nathan, 31 App. Div. 225 ; McEntyre V. Tucker, 36 App. Div. 53 ; Cox v. Halloran, 64 App. Div. 550 ; Stern v. McKee, 70 App. Div. 142.) If the party relies upon an excuse for failure of full performance he is bound to allege and prove facts constituting such excuse, and in addition thereto that he was at that time ready and had the ability to perform, and would have performed except for the acts or matters relied upon as excuse for performance. {Stern v. McKee, 70 App. Div. 142.) And where a party has contracted to furnish supplies of a certain size and material, and has failed to do so, it is no excuse for the deviation from his contract that he furnished other supplies of a different size and material that he considered just as good as those contracted for. {Schultze V. Ooodstein, 180 IST. T. 248.) § 36. Performance of contract; time for performance. Where the time for the performance of a contract is not fixed, but the contract is valid and complete in all other respects, it is presumed that the parties intended that it should be performed within a reasonable time, considering the circumstances under which it was executed, and the law by implication reads such intention into the contract as if it had been originally expressed therein. In such a ease it is incumbent upon either party desirous of preserving any legal remedy or availing himself of a defense at law for a breach of the contract, to put the other party in default by tendering performance on his part and demanding performance by the other party within a reasonable time specified. (Northrup v. Scott, 85 Misc. 515, 148 IST. Y. Supp. 846.) A contract for the making and delivery of a certain number of signs " at once," contemplates that the delivery shall be promptly made or that it shall be made with greater celerity than ordinarily comprehended by a reasonable time. {Binger Co. v. Blumherg, 76 Misc. 432, 134 IS]". Y. Supp. 1115.) Time is not generally of the essence of a contract which is to be performed within a reasonable time, but either party may make it so, whenever he desires, by simply giving notice to that effect. {Taylor v. Ooelet, 208 N. Y. 253.) CONTKACTS GEJJ^^EKALLY Al^D EIGHTS OF PARTIES. 55 § 37. Performance of contract; impossibility of performance. While it is a settled rule of law that a party must fulfill his contractual obligations, an act of God or the law or the interfering or preventive act of the other party may free one from the performance, but, if what is agreed to be done is possible and lawful, the obligation or performance must be met. Difficulty or improbability of accomplishing the stipulated undertaking will not avail the obligor. It must be shown that the thing cannot by any means be effected, and nothing short of this will excuse non- performance. The courts will not consider the hardship or expense or the loss to the one party or the meagreness or the uselessness of the result to the other. They will neither make nor modify contracts nor dispense with their performance. {Richards & Co. v. Wresclmer, 156 !R. Y. Supp. 1054.) Performance of a contract to be performed in this country will not be excused because of the existence of a state of war between foreign nations rendering it impossible to perform. {Richards & Co, v. Wreschner, 174 App. Div. 484, 158 N. Y. Supp. 1129.) A contract to furnish a certain amount of acid which contains a clause that " contingencies beyond your control, firej strike, accidents to your works or to your stock or change in the tariff will allow you to cancel this contract or any part of the same," may be cancelled in the event of such a contingency as the European War, it appearing that it was understood that the goods called for by the contract were imported from abroad. {Davids Co. v. Hoffman-LeRoche Chemical Works, 97 Misc. 33, 160 K Y. Supp. 973.) Where the performance of work and labor is a condition precedent to entitle a party to recover, a fulfillment must be shown; yet where per- formance is prevented or rendered impossible by the sickness or death of the party, a recovery may be had for the labor actually done upon a quantum meruit, the contract being resorted to as the measure of the damages or amount of compensation to which the plaintiff is entitled. {Wolfe V. Howes, 20 K Y. 197 ; Clark v. Gilbert, 26 N. Y. 279.) Con- tracts for personal services requiring skill, and which can only be per- formed by the particular individual named, are not, in their nature, of absolute obligation under all circumstances. Both parties must be sup- posed to contemplate the continuance of the ability of the person whose ■killed services are the subject of the contract, as one of the conditions of tb« contract. Contracts for personal service are subject to this implied •ofuiition, that the person shall be able at the time appointed to perform tkem- and if he dies, or without fault on the part of the covenant or j^Moines disabled, the obligation to perform is extinguished. {Spalding T. Rma, 71 N. Y. 40.) 56 CIVIL LAW AND PKACTICE. § 38. Performance of contract ; entire and severable contracts. In determining whetlier there has been full performance entitling a party to recover upon a contract within the rules stated, it may be necessary to first determine whether the contract is entire or severable. A contract is entire when the parties intend that the promise by one party is con- ditional upon entire performance of his part of the contract by the other party. The contract is said to be severable when the part to be performed by one party consists of several distinct and separate items, and the price- to be paid by the other is apportioned to each Jtem or is left to be implied by law. Ming v. Corbin, 142 jST. Y. 334; Kinmy v. McBride & Co., 88 App. Div. 92.) The intention of the parties determines the entirety or divisibility of the contract. {Ming v. Corbin, 142 N. Y. 334; Clarh v. West, 137 App. Div. 23, 122 K Y. Supp. 380.) § 39. Performance of contract; substantial performance. The law is well settled in this State by repeated decisions, that in a building contract where performance is made a condition of payment, per- formance must be shovsm to entitle a party to recover. (Phillip v. Gallant, 62 N. Y. 256; Smith v. Brady, 17 K Y. 173 and cases cited.) As, however, this class of contracts embrace many particulars which it is dif- ficult, if not impracticable, to comply with, with entire exactness, the apparent rigor of the general rule has so far been relaxed as that a sub- stantial compliance will be deemed sufficient. (Johnson v. De Peyster, 50 ]Sr. Y. 666 ; Glacius v. Blaclc, 50 N. Y. 145 ; Phillip v. Gallant, 62 ISr. Y. 256; Van Orden v. McBae, 121 App. Div. 143, 105 IST. Y. Supp. 600 ; Rowe v. Gerry, 112 App. Div. 358 ; Spence v. Earn, 163 IST. Y. 220 ; Sinclair v. Tallmadge, 35 Barb. 602.) A building contract, like any other, is to be fairly performed according to its terms, and any substantial change, unless authorized by the owner or architect, is made at the risk of the contractor. The law tolerates unsub- stantial deviations made in good faitih, but it exacts full compensation therefor and permits a recovery on the theory of substantial performance, only after the proper deductions have been made. (Schvltze v. Goodstein, 180 IN". Y. 248.) Substantial performance is performance except as to unsubstantial omissions with compensation therefor. Where the omission is slight and unintentional, in order to prevent the hardship of a failure to recover even for that which was well done, compensation is substituted pro tanto for performance. When a plaintiff shows that he performed his contract he is entitled to judgment for the contract price; but when he shows that he performed his contract except that through inadvertence he COWTEACTS GENERALLY AE^D EIGHTS OF PARTIES. 57 omitted to do some unsubstantial things, he is not entitled to recover anything until he shows that the things omitted, if worthy of any attention whatever, can be supplied for a comparatively small sum, in which event he can recover the contract price after deducting that sum. But he must furnish the evidence by which to measure the compensation for the defects as that is the substitute for his failure to do as he agreed. (Spence v. Ham, 163 N". Y. 220.) The doctrine of substantial performance is also applied in actions by a vendor to enforce an executory contract for the manufacture and sale of goods: (Miller v. Benjamin, 142 N. Y. 613) to a contract for advertising; (Bauchey v. Drake, 85 N". Y. 411) and to a contract to make and put up some fourteen or fifteen hundred signs for advertising purposes; (Des- mond-Dunne V. Friedman-Doscher Co., 162 E". Y. 486) and doubtless is applicable in other cases where exact performance is rendered practically impossible by infinite detail in the matters to be performed. But in no case must there be willful! or intentional departure from the requirements of the contract, the defects of performance must not pervade the whole, or be so essential as to substantially defeat the object t>he parties intended to accomplish. (Miller v. Benjamin, 142 K Y, 613; Fox v. Davidson, 36 App. Div. 159.) 68 CIVIL LAW AND PKACTICE. CHAPTEE V. SPECIAL CONTRACTS TO LABOE. Section 1. Parties to contracts of employment. 2. Necessity of writing. 3. Definiteness required. 4. The term of employment. 5. Compensation. 6. Discharge of employee. 7. Remedy by servant for wrongful diseharg*. § 1. Parties to contracts of employment. The general rules of law in relation to contracts apply to contracts of employment. As in all other contracts there must be parties capable of contracting. The old common law doctrine as to the disability of married women to contract has been substantially abrogated in this State by the passage of the acts in relation to married women, and much that was left vague and obscure by those acts in relation to tihe rights and liabilities of the parties to contracts having for their subject matter the employment of married women, has been rendered reasonably clear by recent legislation. Formerly it was often difficult to determine whether wife or husband was legally entitled to the compensation for services rendered by the wife under a contract made by either. It is now provided by statute as follows : "A married woman shall have a cause of action in her own sole and separate rigiht for all wages, salary, profits, compensation or other remuneration for which she may render work, labor or services, or which m'ay be derived from any trade, business or occupation carried on by her, and her husband shall have no right of action therefor unless she or he with her knowledge and consent has otherwise expressly agreed with the person obligated to pay such wages, salary, profits, compensation or other remuneration. In any action or proceeding in which a married woman or her husband shall seek to recover wages, salary, profits, compensation or other remuneration for which such married woman has rendered work, labor or services, or which was derived from any trade, business or occupation carried on by her or in which the loss of such wages, salary, profits, compensation or other remuneration shall be an item of damage claimed by a married woman or her husband, the presumption of law in all such cases shall be that such married woman is alone entitled thereto, unless the contrary expressly appears." (Domestic Relations Law, § 60.) SPECIAL CO]SrTKACTS TO LABOK. 59 The enabling acts which have conferred valuable personal and property rights upon married women 'have had no effect upon the duties which the wife owes to the husband at common law ; but have given her a clear right to effectually contract for compensation for services rendered for others distinct from those duties which she owes to her husband in the marital relation. (Stevens v. Cunningham,, 181 IST. Y. 454.) It is provided by statute that " where a minor is in the employment of a person other than his parent or guardian, payment to such minor of his wages is valid, unless such parent or guardian notify the employer in writing, within thirty days after the commencement of such service, that such wages are claimed by such parent or guardian, but whenever such notice is given at any time, payments to the minor shall not be valid for services rendered thereafter." (Domestic Relations Law, § 72. ) Ordinarily, where one person renders services for another at his request, the law will imply a promise to pay therefor what such services are reasonably worth; but between persons living together as members of the same family, bearing towards each other a family relation, no promise to pay will be implied, and no action will lie unless the services were rendered at the request of the party receiving them under a promise to pay therefor, or under such circumstances as show that the party receiving them expected to pay and 1>he other to receive pay therefor, or that the services were rendered with the understanding between the parties that compensation therefor would be made by will. (Marion v. Farnan, 68 Hun, 383.) Because of the relation between parent and child the presumption is that services rendered by the child for the parent were gratuitous and such as were due from the ohild to the parent. (Matter of Dusenherry, 10 Misc. 633.) But a father may emancipate his minor child, even by parole, and after such emancipation may make contracts with him and become liable to him for wages, or the child may make valid contracts with others for his services. (Kain v. LarUn, 131 N. Y. 300.) § 2. Necessity of writing. The contract of 'hiring may be oral or written, except that where the agreement by its terms is not to be performed within one year from the making thereof, the agreement, or some note or memorandum thereof, must be in writing and subscribed by the party to be charged therewith, or by his lawful agent, as otherwise it will be void. (Personal Property Law, § 31.) An oral contract for the employment of a person for the term of one year, the employment to commence on the following day, is void. (Billington v. Cahill, 51 Hun, 132, 4 IST. Y. Supp. 660 ; Levison v. 8tix, 10 Daly, 229 ; Jonap v. Preger, 59 Misc. 187, 110 N. Y. Supp. 483. And 60 CIVIL LAW AND PRACTICE. see Price v. Press Publishing Co., 117 App. Div. 854, 103 IN". Y. Supp. 296.) But a contract of employment running from September 15, 1910, to September 15, 1911, does not as a matter of law cover a year and a day so as to be forbidden by tbe Statute of Frauds. (Cohen v. Levy, 77 Misc. 98, 136 ]Sr. Y. Supp. 56.) A parol agreement, wbich does not provide when the term of service will terminate, nor how long it should continue, is not one which " by its terms " could not be performed within a year, and therefore is not rendered void by the statute. (Jagau v. Goetz, 11 Miss. 380; Ze«f v. Kent, 62 K Y. 560.) Where an employer has the benefit of one's services under a contract, he cannot contend that the agreement was void because it was not in writing, for the Statute of Frauds cannot be invoked to perpetrate a fraud. {Maune V. Unity Press, 143 App. Div. 94, 127 'S. Y. Supp. 1002.) Ordinarily, where the contract of employment is one which is forbidden by the Statute of Frauds, the employee is not entitled to recover thereupon, but he may recover upon a quantum meruit for the reasonable value of the services rendered under the void contract. (Hartwell v. Young, 67 Hun, 472; Booker v. Heffner, 95 App. Div. 84.) § 3. Definiteness required. A contract of employment, whereby the employer agrees to pay the employee a sum " not exceeding " a named amount, is void for indefinite- uess. (United Press Y. New Yorh Press Co., 1Q4:1^.Y. 4:06.) Likewise, an agreement to pay the employee a certain named salary and a " fair " share of the profits, is ineffective as to the share of the profits because it is not as definite as required by the law. (Varney v. Ditmars, 217 N. Y. 223.) But a contract of employment for a term of years at a salary of " not less than $45 per week," is enforceable to the extent of $45 per week, for the contract is definite to that extent. (Bosbach v. Sachett & Wilhelms Co., 134 App. Div. 130, 118 IST, Y. Supp, 846.) § 4. The term of employment. A hiring at a stated sum per year, month or week, no time being specified at which the employment should terminate, is an indefinite hiring, or a hiring at will, and may be terminated at any time by either party. (Martin v. New York Life Ins. Co., 148 IST. Y. 117; Watson v. Ougino, 204 N. Y, 535; Oressing v. Musical Instruments Sales Co., 169 App. Div, 38, 154 ]Sr, Y. Supp, 420, 222 N. Y. 215 ; Summers v. Phenix Ins. Co., 50 Misc, 181 ; Byrne v. Weir, 38 Misc. 741 ; Outerbridge v. Campbell, 87 App, Div, 597.) Where the contract is not for a specified time, it may be terminated at SPECIAL CONTEACTS TO LABOR 61 the will of either of the contracting parties. (Crotty v. Erie B. B. Co., 149 App. Div. 262, 133 N. Y. Supp. 696 ; Leifer v. Scheinman, 179 App. Div. 665, 167 IST. Y. Supp. 105 ; Auburn Draying Co. v. Wardell, 178 App. Div. 270, 165 N. Y. Supp. 469.) But a contract of employment, which in terms provides that it may be terminated by either party " on thirty days notice after January 1, 1913," does not create a hiring at will which may be terminated without cause prior to the date specified, but it can only be terminated without cause after such date. {Marshall v. Sacheii Co., 166 App. Div. 141, 151 N. Y. Supp. 1045.) In construing a contract of employment, it is to be considered that it is unlikely that the parties should, in words clearly expressive of a design to fix a long term of employment, agree in the same instrument to make it terminable at the will of either. The dominant design should not be frustrated by giving a strict and rigid meaning to general words or expressions without regard to the context, the purposes expressed and the inherent nature of the con- tract. (Maune v. Unity Press, 160 App. Div. 778, 146 N. Y. Supp. 127.) Where there has been a hiring for a year under a written contract, and after the expiration of the term the employee continues in the same employ- ment, receiving the same pay as under the written contract, without any understanding or agreement, verbal or otherwise, limiting the term of such continued employment, the law implies an agreement for a renewal of the contract upon the same terms for another year. (Mendelson v. Bronner, 124 App. Div. 396; Adams v. Fitzpatrick, 125 IST. Y. 124; Brightson v. Claflin Co., 180 IST. Y. 76 ; Trefjinger v. Groh's Sons, 116 App. Div. 250, 185 ]Sr. Y. 610 ; Bennett v. Mahler, 90 App. Div. 22 ; Wood v. Miller, 78 Misc. 377, 138 K Y. Supp. 562.) The death of the servant during the term of his employment ends the contract whether his services involved skilled or common labor ; and upon the same theory the contract ends with the death of the master. (Lacy V. Getman, 119 W. Y. 109.) And where a salesman is employed for a definite term by a copartnership, and during the term the copartnership is dissolved by the death of one of the partners, the contract of employment is thereby terminated. (Mason v. Secor, 76 Hun, 178, 27 IST. Y. Supp. 570.) Where a contract of employment provides that the servant shall perform his sei-vices to the complete satisfaction of his master, the master has the right to discharge him at any time he is dissatisfied with his services. (Diamond v. Mendelsohn, 156 App. Div. 636, 141 IST. Y. Supp 775 ; Waldi V. Goodwin Mfg. Co., 165 App. Div. 244, 150 IST. Y. Supp. 831 ; Bech v. Only Shirt Co., 176 App. Div. 867, 163 K Y. Supp. 786.) But a con- tract for a definite time is not converted into one dependent upon the 62 CIVIL LAW AND PKACTICE. satisfaction of the employer, merely because it contains a recital that the employee is desirous of obtaining and filling the position to the satisfaction of the employer. (Heller v. Bodensich, 81 Misc. 222, 142 N. Y. Supp. 496.) § 5. Compensation. Where a contract of employment is for no definite time, and the em- ployee may leave at any time, he is entitled to be paid for the exact time he works (Kelly v. Walton, 6 Misc. 152) ; and where the hiring is by the week, and the employee does not work the entire week, he is not entitled to a full week's pay without a legal excuse for not continuing in employ- ment t'he full week. (Strach v. Hurd, 41 St. Eep. 777 ; Eden v. Silber- ierg, 89 App. Div. 259.) Nonpayment of monthly wages is not equiva- lent to a discharge, and, if the servant quits the employment in the middle of the following month, he can recover only for the actual wages earned, (Wheaton v. Riggins, 90 N. Y. Supp. 1041; Bamette v. Cohen, 110 N. Y. Supp. 835.) Where the contract provides for payment of wages at stated periods a failure to pay according to the contract furni&hes the employee a good excuse for putting an end to the service unless payment at the time is expressly waived by the employee. (Tickenor v. Brick- heimer, 40 Misc. 194.) Where a person has entered into a contract to work for another an entire year, and after working several months, without cause, and without the agreement or fault of his employer, of his own volition, goes away, aban- doning t>he performance of his contract, he is entitled to no compensation for the labor actually performed. (Lantry v. Parks, 8 Cow. 63 ; Jennings V. Camp, 13 Johns. 94.) Where the parties in making a contract for labor have failed to fix a time for payment, the law will fix it at the time performance is completed. (Ourski V. Doscher, 112 App. Div. 345, 98 N. Y. Supp. 588; Stewart v. Newberry, 220 JST. Y. 379.) Where by agreement between the parties, the compensation of one as salesman for the other is to be a commission on sales, the servant or em- ployee is entitled to commissions on orders for goods solicited and obtained by him, although the goods are not delivered until after his discharge, and the commissions, by the agreement, are not payable until delivered. (Dibble v. Dimmick, 143 JST. Y. 549.) Although the sales made by a traveling salesman are small as compared with his salary, if the employee honestly endeavored to make sales and did not succeed, it is one of the risks the employer took, and is no defense to an action for the salary. (Bloom V. Cox Shoe Mfg. Co., 154 N. Y. 711.) SPECIAL CONTRACTS TO LABOR. 63 The presumption is that where a party enters into the service of another for a stipulated annual compensation and continues beyond the year, that he does so on the same terms, {Adams v. FUzpatricJc, 125 JST. Y, 124; Douglass v. Merchants' Ins. Co., 118 JST. Y. 484; Huntingdon v. Claflin, 38 N. Y. 182; Vail v. Jersey Little Falls Mfg. Co., 32 Barb. 564; Lichterihein v. Fisher, 87 Hun, 397; Wood v. Miller, 78 Misc. 377, 138 N. Y. Supp. 562.) The continuance in the employment with the consent of the employer after the expiration of the year is equivalent to a new hiring upon the same terms ; and the fact that the employer did not con- tinue the business during a portion of the time will not affect the con- struction of the contract of hiring, or the rights or liabilities of the parties thereunder. (Vail v. Jersey Little Falls Mfg. Co., 32 Barb. 564; Wallace V. Devlin, 36 Hun, 273.) But where the employer, after several years of employment of a salesman at an annual salary, forms a copartnership with others, the continuance of the salesman in the same capacity after the formation of the partnership creates no presumption that the salesman continued in the employment of the partnership on the same terms as when in the employment of the original employer. (Mason v. Secor, 76 Hun, 178.) § 6. Discharge of employee. No particular form of words are necessary to constitute a disoharge. Any language that gives the employee to understand that the employer no longer requires his services is sufficient to operate as a discharge. (Ryan V. The Mayor, 154 N. Y. 328 ; Arnold v. Adams, 27 App. Div. 345 ; Jack- son V. Mayor, etc., of N. Y., 87 Hun, 296 ; Coy v. MaHin, 29 Hun, 296 ; Coy V. Martin, 29 App. Div. 418 ; Sigmon v. Ooldstone, 116 App. Div. 490, 101 N.Y. Supp. 984.) While it is not possible to formulate any hard and fast rule which will in all cases determine whether the disoharge of an employee before the expiration of the agreed term is justifiable or otherwise, it may be stated generally that the cause which will justify the discharge must be in some way connected with the duties of the employment or affect the master's interest injuriously. (Burt v. Catlin, 65 App. Div. 456; Brownell v. Ehrich, 43 App. Div. 396 ; Freyer v. Bidwell, 11 N. Y. Supp. 71.) Much will necessarily depend upon the nature of the business of the employer, the duties assumed by the employee, and the relation of the duty omitted to that business. A disoharge may be justifiable although the discharged employee is not in fault, as in case of serious illness lasting, or likely to last, so long as to interfere substantially with the interests of his employer. (Gaynor v. Jonas, 104 App. Div. 35; McGarrigle v. McCosher, 83 App. 64 CIVIL LAW AND PKACTICE. Div. 255, 82 N. Y. Supp. 494.) And, on the other hand, although the immorality of the employee would justify his discharge under certain con- dition not existing, it would not have that effect if it in no way affected the employer's business. (Brownell v. Ehrich, 43' App. Div. 369.) Frequent intoxication {Mowhray v. Gould, 83 App. Div. 255, 82 I^. Y. Supp. 102), disobedience of reasonable orders not inconsistent with the contract of hiring {Jerome v. Queen City Cycle Co., 163 N. Y. 351 ; Costel V. Jeantet, 108 App. Div. 201), repeated violations of a rule for- bidding smoking in the part of a factory where inflammable substances are in constant use (Honigstein v. Hollingsworth, 39 Misc. 314), and willful disobedience of a direction of the employer, though it be as to matter of form {Russell v. Inman, 79 App. Div. 227, 79 JST. Y. Supp. 681), are illustrations of grounds sufficient to justify the discharge of an employee before the expiration of his term, of service. A master is entitled to direct how a servant shall perform his duties and in so doing he is entitled to consult his own convenience as well as the interest of the business, and to prescribe such hours of work for each employee as shall in his opinion best conduce to the efficient administra- tion of the business as a whole. So long as such directions are not unrea- sonable the servant is bound to obey them, and it is no answer to a charge of disobedience for the servant to say that some other method of doing the business was better than that which the master chose, or that notwith- standing the disobedience of instructions he managed in his own way to get the work done somehow. {Macauley v. Press Pub. Co., 170 App. Div. 640, 155 ]Sr. Y. Supp. 1044.) The retention of a servant in the master's employ after knowledge of breaches of duty, does not condone the offenses and prevent their use thereafter as grounds of discharge where the breaches were committed from time to time and continued until the discharge {Gray v. Shephard, 147 N. Y. 177; Siselman v. Cohen, 25 Misc. 529) ; and the employer may avail himself of a breach of duty which existed as a ground of discharge at the time, although it was then unknown to him. {Green v. Edgar, 24 Hun, 414 ; Arkush v. Hannan, 60 Hun, 518 ; Hutchinson v. Washburn, 80 App. Div. 367, 80 IST. Y. Supp. 691 ; Rafalo v. Edelstein, 80 Misc. 153, 140 N. Y. Supp. 1076.) The motive of the master in discharging his servant is unimportant if a legal ground for discharge exists. {Jack- son V. N. Y. Post Graduate Hospital, 6 Misc. 101.) § 7. Remedy by servant for wrongful discharge. It is a well-settled rule that if the master, for good and sufficient cause, discharge the servant before the expiration of the term of service ; or if SPECIAL CONTEACTS TO LABOR 65 the servant, without good cause, quit service before the end of his term, he can recover nothing for the part of the term past, nor for the future. But when the servant has served his full term, this rule has no applica- tion. (Turner v. KouwerHioven, 100 N. Y, 115.) It is settled law in this State that upon the wrongful discharge of an employee the only action he can bring is for the recovery of damages for the breach of the contract of employment, and that 'he cannot maintain an action for wages on the theory of constructive service. The breach being single, but a single action can be brought on it, and in that action the plaintiff must recover all his damages. {Wieland v, Willcox, 40 App. Div. 213; ^Valdron v. Hendriclcson, Id. 7; AYeed v. Burt, 78 IST. Y. 191; Howard v. Daly, 61 'S. Y. 362; Basset v. French, 31 IST. Y. Supp. 667; Fallon v. Farher, 30 Misc. 626; Perry v. Dickerson, 85 K Y. 345.) A claim for wages earned and due before dismissal, and for damages for a wrongful dismissal, constitute two separate and independent causes of action. The right to recover wages earned and due before dismissal is complete and perfect before the right to damages accrues. L'pon the wrongful dismissal a new cause of action arises, wholly disconnected in its origin and nature with the claim for wages. A suit by a servant for wages due is consistent with the continuance of the contract of employ- ment and of actual service thereunder. A suit for a wrongful dismissal proceeds upon the ground of an entire repudiation of the contract by the master. T'he suit for wages is brought to recover for services rendered ; the action for wrongful dismissal, to recover compensation for the loss of a situation, and for not being allowed to serve and earn wages under the contract. In an action for a wrongful dismissal occurring in the middle of a quarter or period, before wages are due and payable under the con- tract of employment, compensation for services in the broken quarter or period, may be recovered as part of the damages, for by the wrongful dis- missal the plaintiff was prevented from earning the wages for the broken quarter under the contract, and compensation for the services actually rendered is justly due as part of the damages; but wages earned and due at the time of such dismissal are not recoverable in such action, as the cause of action for wages is independent of the wrongful dismissal and are in no sense a part of the damages resulting therefrom, {Perry v. Dickerson, 85 N, Y. 345, See Moody v, Leverich, 4 Daly, 401.) If a servant is wrongfully discharged, he has no action for wages except for past services rendered and for sums of money that have come due. As far as any other claim on the contract is concerned, he must sue for the injury he has sustained by his discharge and is not allowed to serve and earn the wages agreed upon, (McCargo v. Jergens, 206 JN", Y, 363,) 5 66 CIVIL LAW AND PEACTICE. A servant wrongfully discharged has but two remedies growing out of the wrongful act: (1) He may treat the contract of hiring as continuing, though broken by the master, and may recover damages for the breach. (2) He may rescind the contract, in which case he could sue on a quantum meruit for services actually rendered. These remedies are independent of, iind additional to his right to sue for wages for sums actually earned and due by the terms of the contract. (Howard v. Daly, 61 IST. Y. 362, 369, ■370; Milage v. Woodward, 186 JST. Y. 252.) Where an employer disc-harges a person from his employ, the discharged employee may wait until his wages become due and then recover them. But this rule is to be taken with restrictions. He recovers not for ser- vices rendered, but damages for breaking the contract by discharging him before the termination of his agreement — that is, for refusing to employ and pay him according to the contract. If it appears that he was idle and could not obtain other employment, his damages would be the whole compensation agreed upon, and that only. (Heim v. Wolf, 1 E. D. Smith, 73; Milage v. Woodward, 186 IST. Y. 252; Cullen v. Battle Island Paper Co., 124 App. Div. 113, 108 IST. Y. Supp. 921 ; Howard v. Daly, 61 E". Y.. 362, 371.) If it appears that the employee obtained other employment,, then he is entitled to only a partial recovery. (Heim v. Wolf, 1 E. D. Smith, 73.) It is undoubtedly the duty of the discharged employee to reduce, if possible, the damages sustained by him by reason of his dis- charge. But in an action to recover damages for a breach of the contract, the burden of proof is on the defendant to show either that the plaintiff has found employment elsewhere, or that other and similar employment, had been offered and declined, or at least that such employment might, have been found. The plaintiff is not bound to show afBrmatively, as a part of his case, that such employment was sought for and could not be> found. (Gostigan v. Mohawk & H. B, B. Co., 2 Denio, 609 ; Howard v. Daly, 61 N. Y. 362, B71; Milage v. Woodward, 186 IST. Y. 252.) The mere offer by an employer to re-employ his employee whom he has wrongfully discharged may be considered in mitigation of damages, but it does not, regardless of the circumstances and conditions existing at the time between the employer and employee, furnish the employer with a complete defense to an action for damages for breach of contract. A wrongfully discharged employee is not bound to accept employment from his former employee in preference to other employers. His sole duty is,, in mitigation of damages, to accept such employment as is offered him by any one, even including his former employer, who has already broken one contract, where the terms and conditions of such proffered employment, are reasonable. (Heiferman v. Oreenhut Cloak Co., 83 Misc. 435, 145. K Y. Supp. 142.) SALES AND WAREANTIES. 67 CHAPTER VI. SALES AND WAEEANTIES. SscnoN 1. Nature of contract of sale. 2. Offer and acceptance. 3. Form of contract of sale ; Statute of Frauds. 4. Sale or return. 5. Time of performance. 6. Place of delivery. 7. When title passes. 8. Warranties; in general. 9. Implied warranty of title. 10. Implied warranty in sale by deseriptiom. 11. Implied warranties of quality. 12. Implied warranties in sale by sample. 13. Remedies of seller; in general. 14. Remedies of seller; lien for purchase price. 15. Remedies of seller; stoppage in transit. 16. Remedies of seller; right of resale. 17. Remedies of seller; right to rescind sale. 18. Remedies of seller; action for price. 19. Remedies of seller; damages for nonaccepta-nee by buyer. 20.. Remedies of buyer; in general. 21. Remedies of buyer; action for conversion. 22. Remedies of buyer; action for failure to deliver. 23. Remedies of buyer; specific performance. 24. Remedies of buyer; breach of warranty. 25. The Personal Property Law relative to sales. § 1. Nature of contract of sale. A sale of goods is defined by statute as an agreement whereby the seller transfers the property in goods to the buyer for a consideration called the price. . And a contract to sell goods is defined as a contract whereby the seller agrees to transfer the property in goods to the buyer for a con- sideration called the price. (Personal Property Law, § 82. See B. C. & G. Consolidated Laws.) To constitute a valid sale there must be parties capable of contracting ; a thing which is the object of the contract; a price agreed upon, or a price to be regulated by actual value; and the consent of the parties to the contract. § 2. Offer and acceptance. Ordinarily a sale is the result of a definite proposition by one party and its acceptance by the other. Until an offer is made by one party, 68 CIVIL LAW AND PEACTICE. complete and definite in all its material terms, the other cannot, by the mere acceptance of the proposition, make a valid contract of sale. In other words, so long as there remains any of the material conditions of the contract to be settled and agreed upon, no binding agreement exists. {Schenectady Stove Co. v. Holbrooh, 101 N". Y. 45.) An offer in the nature of a proposition for a contract may be withdrawn at any time before acceptance. (Id.) In this respect it differs from an option given by one party to another to exercise within a definite period, which, if given for a consideration, cannot be withdrawn until the end of the period prescribed for exercising the option. {Benedict v. Pincus, 191 N. Y. 377; McVicar v. Keating, 19 App. Div. 581, 582.) An agreement to purchase a business, part of the consideration to be paid at once, part on a day named, and the " balance to be agreed upon later," is not a contract since the minds of the parties have never met as to the payment of the balance. (Muller v. Idler, 126 App. Div. 366.) It is well settled that in order to establish a legal contract of sale through the medium of correspondence, it must be made to appear that there was not only a plain, unequivocal offer, but that the acceptance of the offer was equally plain and free from ambiguity. In other words, there must have been an exact meeting of the minds of the contracting parties in respect to every detail of the proposed contract, and if the precise thing offered was not accepted, or if the acceptance was in any manner qualified by conditions or reservations/ however slight they may have been, no valid contract is established, and, on the other hand, the modified or qualified acceptance is to be treated as a rejection of the offer. {Myers v. Smith, 48 Barb. 614; Uhlman v. Day, 38 Hun, 298; Myers v. Trescott, 59 Hun, 395 ; Sidney Glass Worhs v. Barnes & Co., 86 Hun, 374; Mahar v. Comp- ion, 18 App. Div. 536.) It is equally well settled that a proposition by one party by letter to another party at a distance, containing a specific offer, which is unconditionally accepted by the latter, will cons-titute a valid contract between them {Mactier v. Frith, 6 Wend. 103 ; Clark v. Dales, 20 Barb. 42), from the time of the deposit of the letter of accept- ance in the post-office, addressed to and to be transmitted to the party making the offer. {Vassar v. Camp, 11 1^. Y. 441.) " If a negotiation be conducted in writing, and even if there be a dis- tinct proposition in a letter, and a distinct assent, making a contract, and then the parties reduce this contract to writing, and both execute the instrument, this instrument controls the letters, and they are not permitted to vary the force and effect of the instrument, although they may sometimes be of use in explaining the terms." (2 Pars. Cont, 6th Ed., p. 548.) And where there have been oral negotiations resulting in the giving of SALES AND WARKA:NtTIES. 69 a bill of sale, it is by this instrument alone tbat the rights and liabilities of the parties are to be determined. {Udell v. Sarafan, 19 Misc. 542.) § 3. Form of contract of sale ; Statute of Frauds. Subject to certain exceptions, a contract to sell or a sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly by word of month, or may be inferred from the conduct of the parties. (Personal Property Law, § 84. See B. C, & Gr. Consolidated Laws.) Section 85 of the Personal Property Law, with reference to the contracts which are required to be in writing, provides as follows : " 1. A contract to sell or a sale of any goods or choses in action of the value of fifty dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memo- randum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf. " 2. The provisions of this section apply to every such contract or sale, notwithstanding that the goods may be intended to be delivered at some future time or may not at the time of such contract or sale be actually made, procured or provided, or fit or ready for delivery, or some act may be requisite for the completing thereof, or rendering the same fit for delivery ; but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller's business, the provisions of this section shall not apply. " 3. There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods." In order to take a sale of goods over $50 in value out of the Statute of Frauds, where there is no writing evidencing the contract, there must be not only a delivery of the goods by the vendor, but an actual acceptance by the vendee, with the Intention of taking possession as owner, which intention must be indicated by some equivocal act. {Drake Hardware Co. V. Dewitt, 142 App. Div. 189, 126 N. Y. Supp. 868.) § 4. Sale or return. There is a class of sales on condition, called contracts of sale or return, where the property in the goods passes to the purchaser, subject to his option to return them within a fixed or a reasonable time; and if tie pur- chaser fails to exercise his option to so return them the sale becomes absolute, and the price of the goods may be recovered in an action for TO CIVIL LAW AND PKACTICE. goods sold and delivered. If no time is fixed by tlie contract for the return, the option must be exercised in a reasonable time. What is a seasonable time is generally a question of fact, but may be under certain circumstances a question of law. (Greacen v. Poehlman, 191 E". Y. 493.) Where goods are bought and paid for under an agreement that the vendor will take back at the invoice price any of the goods not sold by the end of the season, the title to the goods passes to the vendee at the time of tie delivery. On the vendor's refusal to take back the goods as agreed, the vendee can either rescind and sue for the difference between the agreed price and the value of the goods, or treat them as belonging to the vendor and sue for the contract price, and upon electing" to pursue the latter course he is entitled under section 134 of the Personal Property Law to a vendor's lien. (Capauno v. Italian Importing Co., 89 Misc. 449, 151 N". Y. Supp. 994.) § 5. Time of performance. It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract to sell or sale. (Personal Property Law, § 122. See B. C. & G. Con- solidated Laws.) Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions; that is to say, the seller must be ready and willing to give possession of the goods to buyer in exchange for the price and the buyer must be ready and willing to pay the price in exchange for possession of the goods. (Personal Property Law, § 123 ; Tipton v. Feitner, 20 JST. Y. 423 ; Williams v. Wilson, etc., Co., Ill App. Div. 442, 97 IST. Y. Supp. 731.) When the contract makes no provision as to the time of delivery and no time when payment shall be made, it is contemplated that the delivery shall be within a reasonable time and that payment shall be made upon delivery. {Grahf elder v. Vos- burgh, 90 App. Div. 307; Weinberg v. Gash, 94 Misc. 303, 158 N, Y. Supp. 179; Cinque v. Cassani, 43 App. Div. 381.) Subsequent and repeated requests for delivery of property sold after a breach by the seller in that particular do not bar the buyer from all claim for damages. Such requests may have the effect of barring the buyer from refusing to accept the property at a later date than the contract day, but do not necessarily preclude his right of damages. (Bailey v. Elm City Lumber Co., 167 App. Div. 42, 154 IST. Y. Supp. 281.) § 6. Place of delivery. Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending in each case ou SALES AND WAKEANTIES. Yl the contract, express or implied, between the parties. Apart from any such contract, express or implied, or usage of trade to the contrary, the place of delivery is the seller's place of business if he have one, and if not his residence; but in case of a contract to sell or a sale of specific goods, which to the knowledge of the parties when the contract or the sale was made were in some other place, then that place is the place of delivery. (Personal Property Law, § 124; see B. C. & G. Consolidated Laws ; Schijf v. Winton Motor Car Co., 90 Misc. 590, 153 N. Y. Supp. 961; Lenders v. Fahlherg Saccharine Worlcs, 150 N. T. Supp. 635; Dressier-Beard Mfg. Co. v. Winter Garden Co., 158 IST. Y. Supp. 8Y5.) Where the seller agrees to deliver it at a certain place, he is bound to see that the delivery is properly made, and the title to the property remains in him until tihe agreement of sale and delivery is completed. {Conroy v. Barrett, 95 Misc. 247, 157 N. Y. Supp. 549.) § 7. When title passes. It is important in many cases, particularly where the property has become lost before its actual receipt by the buyer, to determine whether the title thereto has passed to the buyer or whether it still remains in the seller. This question is now largely governed by the provisions of the Personal Property Law. Where there is a contract to sell unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascer- tained. (Personal Property Law, § 98, See B. C. & G. Consolidated Laws.) Title does not vest in an article to be manufactured until finished and delivered, or ready for delivery and approved by the party for whom it is to be constructed. (Andrews v. Durant, 11 N. Y. 35; Interstate Steamboat Co. v. First Nat. Bank, 87 Hun, 93, 33 W. Y. Supp. 330.) If goods are sold, while mingled with others, by number, weight or measure, the sale is incomplete, and the title continues with the seller, until the bargained property is separated and identified. But if the goods sold are clearly identified, then, although it may be necessary to number, weigh or measure them in order to ascertain what would be the price of the whole at the rate agreed upon between the parties, the title will pass. Thus, if a flock of sheep is sold at so much the head, and it is agreed that they shall be counted after the sale in order to determine the entire price of the whole, the sale is valid and complete. But if a given number out of the whole are sold, no title is acquired by the purchaser until they are separated and their identity thus ascertained and deter- mined. This doctrine is well settled. (See Crofoot v. Bennett, 2 N. S. 258; Groat v. Gile, 51 N". Y. 431, 437; Kimberly v. Patchin, 19 N. Y. 72 CIVIL LAW AND PEACTICE. 330; Burrows v. WUtaker, 71 IST. Y. 291; Sawyer v. Waterbury, 116 ]!T. Y. 371.) Where there is a contract to sell specific or ascertained goods, the prop- erty in them is transferred to the buyer at such time as the parties to the contract intend it shall be transferred. For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the con- tract, the conduct of the parties, usages of trade and the circumstances of the case. (Personal Property Law, § 99. See B. C. & G. Consoli- dated Laws.) To aid in determining intention, the Legislature has pro- mulgated various rules. (Personal Property Law, § 100. See B. C. & Q. Consolidated Laws.) Where there is a valid contract for the sale of personal property, and by its terms the property is to be shipped by the vendor to the vendee, a delivery to a responsible carrier for the vendee, to be carried and deliv- ered to him, will ordinarily transfer the title to the vendee and place the property at his risk. (Badgers v. Phillips, 40 N". Y. 519; Allard v. Oreasert, 61 N. Y. 1.) But it is a condition precedent to the vesting of title in the vendee that the goods delivered shall correspond with the con- tract. (Pierson v. Crooks, 115 N. Y. 539.) Where goods of a specific quality are ordered by a distant purchaser of a manufacturer or dealer, with directions to ship them by a carrier, delivery to the carrier will not conclude the party giving the order from rejecting the goods on arrival if found not to be of the quality ordered. (Pierson v. Crooks, 115 N. Y. 539.) But these cases all hold that a delivery, according to the contract, to a general carrier, not designated or selected by the buyer, does not con- stitute such a delivery and acceptance as to answer the Statute of Frauds. Where on the sale of personal property it is agreed tlhat payment therefor shall accompany or precede delivery, the title does not pass until the payment is made. (Empire State Type Founding Co. v. Grant, 114 N. Y. 40; Leven v. Smith, 1 Denio, 571; Bussell v. Minor, 22 Wend. 659; Hammett v. Linneman, 48 IS". Y. 399; Schryer v. Fenton, 15 App. Div. 158, 44 N. Y. Supp. 203.) But title to an article may pass upon a sale on credit if such was the intention of the parties. (Crosby v. Dela- ware & Hudson Canal Co., 141 N. Y. 589.) § 8. Warranties ; in general. A warranty in the sale of goods may be express or it may be implied. Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer SALES AND WARRAXTIES. 73 purchases the goods relying thereon, but no affirmation of the value of the goods, nor any statement purporting to be a statement of the seller's opinion only shall be construed as a warranty. (Personal Property Law, § 93. See B. C. & G. Consolidated Laws.) Implied warranties may attach to a written contract as well as to one not written. {Marx v. Locomobile Co., 82 Misc. 468, 144 IST. Y. Supp. 937.) A warranty on the sale of an automobile that it will be free from defects for a year necessarily carries with it a warranty that the machine at the time of the sale is of sufficiently good workmanship and material to run a year under ordinary and proper use without showing defects; and the seller is liable for any defects that have appeared during the time limit except such as result from the buyer's improper use of the car. (Miller V. Zander, 85 Misc. 499, 147 N, Y. Supp. 479.) § 9. Implied warranty of title. In a contract to sell or a sale, unless a contrary intention appears, there is an implied warranty on the part of the seller that in case of a sale he has a right to sell the goods, and that in case of a contract to sell he will have a right to sell the goods at the time when property is to pass. And there is also an implied warranty that the buyer shall have and enjoy quiet possession of the goods as against any lawful claims existing at the time of the sale ; and that the goods shall be free at the time of the sale from any charge or encumbrance in favor of any third person, not declared or known to the buyer before or at the time when the contract or sale is made. But this implied warranty does not render liable a sheriff, auctioneer, mortgagee or other person professing to sell by virtue of authority in fact or law goods in which a third person has a legal or equitable interest. (Personal Property Law, § 94. See B. C. & G. Consolidated Laws.) § 10. Implied warranty in sale by description. Where there is a contract to sell or a sale of goods by description, there is an implied warranty that the goods shall correspond with the descrip- tion ; and, if the contract or sale be by sample, as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description. (Personal Property Law § 95. See B. C. & G. Consolidated Laws.) On a sale of fruit trees by order, there is an implied warranty that the trees delivered shall be of the variety ordered. (Whipple v. Brown Bros. Co., 170 App. Div. 531, 156 N. Y. Supp. 63.) 74 CIVIL LAW AND PEACTICE. § 11. Implied warranties of quality. The general rule as to warranties is caveat emptor — let the buyer beware — and that there is no warranty of quality of the article sold. To the general rule, however, there are certain exceptions. Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose. (Personal Property Law, §96. See B. C. & G. Consolidated Laws.) This statute changes the prior Tule on sales within its purview. But in order to bring a case within the statute, two things must appear. First: The seller must be informed expressly or by implication of the purpose for which the goods were pur- chased ; and Second : The buyer must have appeared to have relied on the seller's skill and judgment. (Wasserstrom v. Cohen, etc., Co., 165 App. Div. 171, 150 N. Y. Supp. 638.) The mere purchase of goods from a retail dealer does not raise a presumption that the buyer relied on the skill or judgment either of the seller or his salesman within the meaning of this statute. (Teller & Go. v. Kinlen, 165 App. Div. 351, 150 jST. Y. Supp. 966.) Where an article is sold for consumption as food, there is an implied warranty that it is fit for consumption. {Race v. Krum, 222 N. Y. 410; Zenhel v. Oneida County Creameries Co., 104 Misc. 251, 171 N. Y. Supp. 676 ; Money v. Fisher, 92 Hun, 347 ; Race v. Krum, 163 App. Div. 924, 147 N. Y. Supp. 818.) The sale of pork made in the usual manner by a retail dealer for immediate consumption carries with it an implied warranty that it is sound and fit for use, and a purchaser who becomes infected with a parasite found in the pork may recover damages from the retail dealer, although the latter was free from negligence and although the pork was sold in the same form in which it was purchased and bore the United States Government stamp to the effect that it was sound and fit for con- sumption and free from defects. {Rinaldi v. Mohican Co., 171 App. Div. 814, 157 IST. Y. Supp. 561, affd., 225 N. Y. 70.) Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of a merchantable quality. (Personal Property Law, § 96, subd. 2. See B. C. & G. Con- solidated Laws. ) If the buyer has examined the goods, there is no implied warranty as regards defects which such examination ought to have revealed. (Per- sonal Property Law, § 96, subd. 3. See B. C. & G. Consolidated Laws.) SALES AND WAERAN"TIES. 75 In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for ■any particular purpose. (Personal Property Law, § 96, subd. 4. ' See B. C. & G. Consolidated Laws.) An implied warranty or condition as to the quality or fitness for a particular purpose may be annexed by the usage of trade. (Personal Property Law, § 96, subd. 5. See B. C. & G. Consolidated Laws.) An express warranty or condition does not negative a warranty or con- dition of quality implied by the provisions of the Personal Property Law. (Personal Property Law, § 96, subd. 6. See B. C. & G. Consolidated Laws. ) An implied warranty may attach to a written contract as well as to one not written. {Marx v. Locomobile Co., 82 Misc. 468, 144 IST. Y. Supp. 937.) § 12. Implied warranties in sale by sample. In the case of a contract to sell or a sale by sample, there is an implied warranty that the bulk shall correspond with the sample in quality; and that the buyer shall have a reasonable opportunity of comparing the bulk with the sample, except so far as otherwise provided in the Personal Property Law ; and, if the seller is a dealer in goods of the kind sold, there is an implied warranty that the goods shall be free from any defect render- ing them unmerchantable which would not be apparent on reasonable examination of the sample. (Personal Property Law, § 97. See B. C. & G. Consolidated Laws. ) A sale by sample contemplates that the goods are in being, that the sample is taken from the bulk; and that the bulk is equal in quality to the sample. This is sometimes called an implied warranty, but is more properly an express warranty. It amounts to an affirmation that the specimen is a fair sample of the bulk of the commodity. (Beime v. Dodd^ 5 N, Y. 95, 103; Guemey v. Atlantic and Great Western By. Co., 58 ]Sr. Y. 358, 364; Henry & Co. v. Talcott, 175 N. Y. 385; Hamilton v. Peloushy, 48 Misc. 554.) But the mere circumstance that the seller exhibits a sample at the time of the sale will not of itself make it a sale by sample so as to subject the seller to liability on a warranty as to the nature and quality of the goods ; because it may be exhibited, not as a warranty that the bulk corresponds to it, but merely to enable the purchaser to form a judgment on its kind and quality. Whether a sale be a sale by sample or not is a question of fact for the jury to find from the evidence in each case. To authorize a finding that a sale was by sample the evidence must satisfactorily show that the parties contracted solely in reference to the sample exhibited ; that 76 CIVIL LAW AND PEACTICE. they mutually understood that they were dealing with the sample as an agreement or understanding that the bulk of the commodity corresponds with it ; or in other words, the evidence must be such as to authorize the jury, under all the circumstances of the case, to find that the sale was intended by the parties as a sale by sample. (Waring v. Mason, 18 Wend. 425, 434 ; Hargous v. Stone, 5 IST. Y. 73 ; Beirne v. Dodd, 5 N. Y. 99 ; Pascal V. Goldstein, 51 Misc. 629 ; New York Hydraulic Press BricTe Co. V. Gunn, 43 Misc. 330 ; Smith v. Coe, 170 K Y.' 162 ; Id., 612 ; Henry & Co. V. Talcott, 175 IST. Y. 385.) Where an action is brought to recover for goods sold and delivered, and it is established by concession or proof that the sale is by sample, the burden is then upon the plaintiff to show that the goods he delivered were the goods which were the subject of sale, that is, goods equal to the sample. (Bosenstein v. Casein Mfg. Co., 50 Misc. 345.) A sale may be made partly by description and partly by sample, and in that event the goods must correspond to the description in the respect covered thereby and to the sample in other respects. (Bach v. Levy, 101 K Y. 511, 514; Henry & Co. v. Talcott, 175 N. Y. 385, 390.) An executory contract for the manufacture and delivery of certain articles of personal property of a specified quality and description is not strictly a sale by sample. (Gumey v. Atlantic & Great Western By. Co., 58 N. Y. 358.) But under such contract the party is bound to deliver articles equal to the sample in manufacture, material, description, quality, fitness and durability for the use for which they are designed. (Id.) The remedy of the purchaser is not the same in the case of an executory contract for the manufacture of goods and in the case of a sale by sample. If the sale is strictly one by sample the purchaser, after discovery that the goods are inferior to the sample, may still retain the goods and sue for the breach of warranty ; but in executory contracts for the manufacture of goods where there is no warranty, acceptance of the goods after an opportunity to examine renders the purchaser liable for the contract price. (Smith v. Coe, 55 App. Div. 585; 170 N. Y. 162; Gumey v. Atlantic & Great Western By. Co., 58 1^. Y. 358; Studer v. Bleistein, 115 IST. Y. 316 ; Pierson v. Croohs, 115 IST. Y. 539 ; Ideal Wrench Co. V. Garvin Machine Co., 92 App. Div. 187.) A contract of sale which points out a known and ascertainable standard by which to judge the quality of the goods sold, is, for all practicable pur- poses, a sale by sample, and renders the vendor liable for damages upon a breach of warranty, although there has been an acceptance after opportunity to inspect the goods. (ZahrisJcie v. Central Vermont B. B. Co., 131 'N. Y. 72.) SALES AND WARKANTIES. 77 § 13. Remedies of seller; in general. Where the buyer of personal property has declined to accept the same when the seller has sought to deliver it or when he has failed to pay for it, the seller ordinarily has his choice of several remedies. If the title to the property has not passed to the buyer, the seller has a lien on the goods or a right to retain them for the price while he is in possession of them, or a right of selling the goods in transit after he has parted with the posses- sion thereof ; or he has a right of resale as prescribed by the provisions of the Personal Property Law; or he has a right to rescind the sale as provided by the Personal Property Law. If the title to the goods has not passed to the buyer, the unpaid seller has, in addition to his other remedies, a right of withholding delivery similar to and coextensive with his rights of lien and profits in transit. (Personal Property Law, § 134. See B. C. & G. Consolidated Laws.) If the vendee has declined to receive the property, the vendor may store or retain the property for the vendee and sue him for the entire purchase price; or he may sell the property and recover the difference between the contract price and the price obtained upon a re-sale; or he may keep the property as his own and recover the difference between the market value at the time and place of delivery and the contract price. {More v. Potter, 155 ISr. Y. 481.) § 14. Remedies of seller; lien for purchase price. The unpaid seller of goods having them in his possession is entitled to retain possession thereof until payment or tender of the price in the fol- lowing cases : (a) Where the goods have been sold without any stipulation as to credit; (b) Where the goods have been sold on credit, but the term of credit has expired; (c) Where the buyer becomes insolvent. The unpaid seller may exercise his right of lien notwithstanding that he is in possession of the goods as agent or bailee for the buyer. (Personal Prop- erty Law, § 135. See B. C. & G. Consolidated Laws.) Where an unpaid seller has made part delivery of the goods, he may exercise his right of lien on the remainder, unless such part delivery has been made under such circumstances as to show an intent to waive the lien or the right of retention. (Personal Property Law, § 136. See B. C. & G. Consolidated Laws.) An unpaid seller of goods loses his lien thereon when he delivers the goods to a carrier or other bailee for the purpose of transmission to the buyer without reserving the property in the goods or the right to the posses- sion thereof ; or when the buyer or his agent lawfully obtains possession of the goods ; or by a waiver of his right of lien. But the unpaid seller of 78 CIVIL LAW AND PKACTICE. goods, having a lien thereon, does not lose his lien by reason onJj that he has obtained judgment or decree for the price of the goods. (Personal Property Law, § 137. See B. C. & G. Consolidated Laws.) With the transmutation of possession of property, a vendor's lien thereon is at an end. (Rummell v. Blanchard, 216 N. Y. 348.) The common law rule that a vendor's lien on personal property is. extinguished where the buyer acquires both title and possession from the seller still exists and is incorporated into the present Personal Property Law. (Bummell v. Blanchard, 167 App. Div. 654, 153 N. Y. Supp. 159.) § IS. Remedies of seller ; stoppage in transit. Subject to the provisions of the Personal Property Law, when the buyer of goods is or becomes insolvent, the unpaid seller who has parted wifh the possession thereof has the right of stopping them in transitu, that is to say, he may resume possession of the goods at any time while they are in transit, and he will then become entitled to the same rights in regard to the goods as he would have had if he had never parted with the possession. (Personal Property Law, § 138. See B. C. & G. Consolidated Laws.. Northern Grain Co. v. Wiffler, 223 IST. Y. 169.) § 16. Remedies of seller; right of resale. Where goods sold are of a perishable nature, or where the seller expressly reserves the right of resale in case the buyer should make default, or where the buyer has been in default in the payment of the price an unreasonable time, an unpaid seller having a right of lien or of having stopped the goods in transitu may resell the goods. He shall not thereafter be liable to the original buyer upon the contract to sell or the sale or for any profit made for such resale, but may recover from the buyer damages for any loss, occasioned by the breach of the contract or the sale. Where a resale is made, the buyer acquires a good title as against the original buyer. It is not essential to the validity of a resale that notice of an intention to resell the goods be given by the seller to the original buyer. But where the right to resell is not based on the perishable nature of the goods or upon an express provision of the contract or the sale, the giving or failure to give such notice is relevant in any issue involving the question whether the buyer had been in default an unreasonable time before the resale was made. It is not essential to the validity of a resale that notice of the time and place of such place of such resale should be given by the seller to the original buyer. The buyer is bound to exercise reasonable care and judgment in making a resale, and subject to this requirement may make a resale either by public SALES AND WAREAJSTTIES. 79 or private sale. (Personal Property Law, § 141. See B. 0. & G. Con- solidated Laws.) § 17. Remedies of seller; right to rescind sale. An unpaid seller having a right of lien or having stopped the goods in transitu, may rescind the transfer of title and resume the property in the- goods, where he expressly reserved the right to do so in case the buyei* should make default, or where the buyer has been in default in the payment, of the price an unreasonable time. The seller shall not thereafter be liable to the buyer upon the contract to sell or the sale, but may recover from the buyer damages for any loss occasioned by the breach of the contract or the sale. The transfer of title is not held to have been rescinded by an unpaid seller until he has manifested by notice to the buyer or by some other overt act an intention to rescind. It is not necessary that such overt act should be communicated to the buyer but the giving or failure to give notice to- the buyer of the intention to rescind is relevant in any issue involving the question whether the buyer has been in default an unreasonable time- before the right of recission was asserted. (Personal Property Law, § 142, See B. C. & G. Consolidated Laws.) Where a vendor has been induced by the fraudulent statements of the vendee to sell goods to him on credit, he may either disafErm the sale and proceed in replevin to recover the goods, or may waive the tort, and, rescinding that part of the contract giving the credit, sue at. once for the purchase price of the goods as though the sale were for cash. In such cases the seller is not bound to bring an action for deceit, or an action of trover or replevin, but may waive the tort and bring assumpsit at once for the value of the goods. {Wygwnd v. Sichel, 3 Keyes, 120, 33 How. 174; Both V. Palmer, 27 Barb. 652 ; Crossman v. Universal Rubber Co., 127 N. Y. 38 ; Wilson v. Foree, 6 Johns. 110; Heilbronn v. Herzog, 165 N. Y, 98.) There is a well-recognized distinction in such cases between a dis- affirmance of the sale with all its incidents, and a mere rescission of the credit upon which the sale was made. A vendor who has been defrauded on the contract of sale may rescind the contract and reclaim his goods while they remain in the possession of" the vendee or one who is not a bona fide purchaser, but he must in such case restore to the vendee what he has received from him, (See Sweetman V, Prince, 26 IST. Y. 224.) § 18. Remedies of seller ; action for price. Where under a contract to sell or a sale, the property in the goods has, passed to the buyer, and the buyer wrongfully neglects or refuses to pay 80 CIVIL LAW AND PRACTICE. for the goods according to the terms of the contract or the sale, the seller may maintain an action against him for the price of the goods. Where, under such a contract to sell or a sale, the price is payable on a day certain, irrespective of delivery or of transfer of title, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed, and the goods have not been appropriated to the contract. But it is a defense to such an action that the seller at any time before judgment in such action has manifested an inability to perform the contract or the sale on his part or an intention not to perform it. (Personal Property Law, § 144. See B. C. & G. Consolidated Laws. ) § 19. Remedies of seller; damages for nonacceptance by buyer. Where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against him for damages for non- acceptance. The measure of damages is the estimated loss directly and naturally resulting, the ordinary course of events, from the buyer's breach of contract. Where there is an available market for the goods in question, the measure of damages is, in the absence of special circumstances, show- ing proximate damage of a greater amount, the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for acceptance, then at the time of the refusal to accept. If, while labor or expense of material amount are necessary on the part of the seller to enable him to fulfill his obligations under the contract to sell or the sale, the buyer repudiates the contract or the sale, or notifies the seller to proceed no further therewith, the buyer shall be liable to the seller for no greater damages than the seller would have suffered if he did nothing toward carry- ing out the contract or the sale after receiving notice of the buyer's repudia- tion or countermand. The profit the seller would have made if the contract or the sale had been fully performed shall be considered in estimating such damages. (Personal Property Law, § 145. See B. C. & G. Consolidated Laws.) Where the goods have not been delivered to the buyer, and the buyer has repudiated the contract to sell or sale, or has manifested his inability to perform his obligations thereunder, or has committed a material breach thereof, the seller may totally rescind the contract or the sale by giving notice of his election so to do to the buyer. (Personal Property Law, § 146, See B. C. & G. Consolidated Laws.) In such a case the seller is justified in treating the contract as broken at that time and he may bring an action SALES AND WARKANTIES. 81 immediately for the breach without tendering the delivery of the goods or awaiting the expiration of the period of performance fixed by the contract. The damages recoverable in such action is the difference between the con- tract price and the market value at the time and place of delivery. ( Wind- muller v. Pope, 107 N. Y. 674.) Eefusal to accept is a waiver of tender. {Weil V, Unique Electric Device Co., 39 Misc. 527, 80 N. Y. Supp 484; Levy v. Olassbegg, 92 IST. Y. Supp, 50.) A formal and specific statement by the buyer of the grounds of his refusal to accept the goods will be con- strued and deemed to be a waiver of all other objections to performance on the part of the seller. {Littlejohn v. Shaw, 159 N. Y. 188.) § 20. Remedies of buyer ; in general. The buyer of personal property has several different remedies in case the purchaser fails to complete his contract as agreed between the parties. He may in some cases maintain an action against the seller or as for con- version, where the seller fails to deliver the goods to the buyer. Or, in case the seller fails to deliver the goods, he may maintain an action for damages for a breach of the contract. And, in case the seller makes a breach of warranty, various remedies are left to the buyer for his protection. Fraud vitiates all contracts of sale at the election of the party defrauded. If a vendee has been induced to purchase by fraud and desires to be entirely relieved from the contract, he must rescind it, and restore, or offer to restore, the property purchased. If he retains the property, he may, when sued for the purchase price, recoup the damages arising from the fraud, or may have an action to recover such damages. But he cannot retain the property, if it is of any value, and defeat a recovery in toto upon the con- tract by reason of the fraud. This is the rule where the question of fraud does not relate to the title to the goods sold. In such a case the vendee may return or abandon the property to the true owner, assuming the responsi^ bility, when sued by his vendor, of showing the fraud and proving title in the true owner. (Sweetman v. Prince, 26 N, Y, 224; Wolf v. Michael, 21 Misc. 86, 46 IST. Y. Supp. 991.) § 21. Remedies of buyer; action for conversion. Where the property in the goods has passed to the buyer and the seller vsTongfully neglects or refuses to deliver the goods, the buyer may maintain any action allowed by law to the owner of goods of similar kind when wrongfully converted or withheld, (Personal Property Law, § 147, See B. 0, & G, Consolidated Laws,) 6 82 CIVIL LAW AXD PEACTICE. § 22. Remedies of buyer ; action for failure to deliver. Where the property in the goods has not passed to the buyer, and the seller wrongfully neglects or refuses to deliver the goods, the buyer may maintain an action against the seller for damages for nondelivery. The measure of damages in such an action is the loss directly and naturally resulting in the ordinary course of events from the seller's breach of con- tract. Where there is an available market for the goods in question, the measure of damages, in the absence of special circumstances showing proxi- mate damages of a greater amount, is the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver. (Personal Property Law, § 148. See B. C. & G. Consolidated Laws.) If the goods are to be delivered and paid for in installments, and the seller refuses to deliver any installment, this amounts to a repudiation of the contract by the seller and a breach thereof for which the buyer may recover his damages. But he cannot split up his demand and maintain successive suits as the time to deliver each installment arrives. There can be but one action for damages for a total breach of an entire contract to deliver goods, even where they are to be delivered in installments from time to time, and the buyer must either recover all his damages in his first suit, or wait until the time for the delivery of all the goods has arrived. {Pakas V. Hollingshead, 184 N. Y. 211.) § 23. Remedies of buyer ; specific performance. In certain cases where a seller has broken a contract to deliver specific or ascertained goods, courts of equity are permitted to make decrees direct- ing that the contract shall be performed specifically (see Personal Property Law, § 149) ; but this remedy has no application to courts of justices of the peace, for justices do not have equitable powers. § 24. Remedies of buyer ; breach of warranty. Where there is a breach of warranty by the seller, the buyer has several remedies, at his election. He may accept or keep the goods and set up against the seller the breach of the warranty by way of recoupment in diminution or extinction of the price ; or he may accept or keep the goods and maintain an action against the seller for damages for the breach of the warranty; or he may refuse to accept the goods, if the property therein has not passed, and may maintain an action against the seller for damages for the breach of warranty ; or he may rescind the contract to sell or the sale and refuse to receive the goods, or if the goods have already been SALES AND WAERANTIES. 83 received, return them or offer to return them to the seller and recover the price or any part thereof which has been paid. But when the buyer has claimed and been granted a remedy in any one of these ways, no other remedy can thereafter be granted. (Personal Property Law, § 150, subd. 1. See B. C. & G. Consolidated Laws. Miller v. Zander, 85 Misc. 499, 147 ]Sr. Y. Supp. 479.) There is nothing in this section of the Personal Property Law which changed the rule previously existing to the effect that in a contract for the delivery of goods with warranties of quality, a purchaser may, as to goods already delivered and accepted by him, sue for damages for breach of the warranty, and where the seller refuses to deliver goods in the future according to the contract, recover also from the seller as in every case of a breach of an executory contract, the damages resulting from such a breach. (Interboro Brewing Co. v. Inde- pendent Consumers' Ice Co., 83 Misc. 119, 114 N. Y. Supp. 820.) Where the goods have been delivered to the buyer, he cannot rescind the Bale if he knew of the breach of warranty when he accepted the goods or if he fails to notify the seller within a reasonable time of his election to rescind, or if he fails to return or to offer to return the goods to the seller in substantially as good condition as they were in at the time the property was transferred to the buyer. But if the deterioration or injury of the goods is due to the breach of warranty, such deterioration or injury shall not prevent the buyer from returning or offering to return the goods to the seller and rescinding the sale. (Personal Property Law, § 150, subd. 3. Salomon v. Olkin, 91 Misc. 17, 154 N. Y. Supp. 204; Frieder v. Bosen, 147 ]Sr. Y. Supp. 442.) Where, in an action for goods sold and delivered, the defendant pleads breach of warranty as to quality both as a defense and as a counterclaim, and it appears that although only a brief time was necessary to make an examination of the goods, the defendant made no attempt to make such examination and made no offer to return the goods until more than two weeks after their receipt, the breach of warranty will be deemed to have been waived, and the only right which survives the defendant's acceptance of the goods is a claim for damages. (Silherstein v. Blum, 167 App. Div. 660, 153 N. Y. Supp. 34.) Before the enactment of the sections of the Personal Property Law pertaining to sales, the acceptance of goods sold, destroyed an implied warranty in the sale unless the defect was latent ; but under the Personal Property Law the acceptance does not extinguish either an express or implied warranty. (Nelson Co. v. Silver, 160 App. Div. 445, 145 N. Y. Supp. 124:; Marx v. Locomobile Co., 82 Misc. 468, 144 N. Y. Supp. 937; English Lumber Company v. Smith, 157 N". Y. Supp. 233.) 84 CIVIL LAW AND PEACTICE. The provisions of this section, which permit a buyer, at his election, to accept or keep the goods and set up against the seller the breach of warranty by way of recoupment in diminution or extinction of the price, applies to conditional as well as to absolute sales. (Peuser v. Marshy 218 N. Y. 505.) Under this section, an action may be brought on the theory of the rescision of a contract for the recovery of the amount paid on account of the purchase price whether the sale is an absolute or a conditional one. (SMmel V. Williams Oven Mfg. Co., 93 Misc. 174, 156 IsT. Y. Supp. 1060.) Where the buyer is entitled to rescind the sale and elects to do so, the buyer shall cease to be liable for the price upon returning or offering to return the goods. If the price or any part thereof has already been paid, the seller shall be liable to repay so much thereof as has been paid, con- currently with the return of the goods, or immediately after an offer to return the goods in exchange for repayment of the price. (Personal Prop- erty Law, § 150, subd. 4. See B. C. & G. Consolidated Laws.) Where the buyer is entitled to rescind the sale and elects to do so, if the seller refuses to accept an offer of the buyer to return the goods, the buyer shall thereafter be deemed to hold the goods as bailee for the seller, but subject to a lien to secure the repayment of any portion of the price which has been paid. (Personal Property Law, § 150, subd. 5. See B. C. & G. Consolidated Laws.) The measure of damages for breach of warranty is the loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty. In the case of a breach of a warranty of quality, such loss, in the absence of special circumstances showing proximate damage of a greater amount, is the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty. (Personal Property Law, § 150, subds. 6, 7. See B. C. & G. Consolidated Laws.) § 25. The Personal Property Law relative to sales. Prior to 1911, the law relating to sales was not generally a part of the statutory law of the State, but resting in the rules of the common law; but in that year an act was passed codifying the law of sales. It is thought that their importance is such to justify their insertion in full. SALES OF GOODS. Seotion 82, Contracts to sell and sales. 83. Capacity; liabilitiea for necessaries. 84. Form of contract or sale. 85. Statute of Frauds. 86. Existing and future goode. SALES AXD WAEKANTIES. 85 Section 87. Undivided shares. 88. Destruction of goods sold. 89. Destruction of goods contracted to be sold. 90. Definition and ascertainment of price. 91. Sale at a valuation. 92. Effect of conditions. 93. Definition of express vrarranty. 94. Implied warranties of title. 95. Implied warranty in sale by description. 96. Implied warranties of quality. 97. Implied warranties in sale by sample. 98. No property passes until goods are ascertained. 99. Property in specific goods passes when parties so intend. 100. Eules for ascertaining intention. 101. Reservation of right of possession or property when goods are shipped. 102. Sale by auction. 103. Risk of loss. 104. Sale by a person not the owner. 105. Sale by one having a voidaible title. 106. iSale by seller in possession of good® already sold. 107. Creditors' rights against sold goods. 108. Definition of negotiable documents of title. 109. Negotiation of negotiable document by delivery. 110. Negotiation of negotiable documents by indorsement. 111. Negotiable documents of title marked "not negotiable." 112. Transfer of non-negotiable documents. 113. Who may negotiate a document. 114. Rights of person to whom document has been negotiated. 115. Rights of person to whom document has been transferred. 116. Transfer of negotiable document without indorsement. 117. Warranties on sale of document 118. *Indorsement not a guarantee. 119. When negotiation not impaired by fraud, mistake or duress. 120. Attachment or levy upon goods for which a negotiable document has been issued. 121. Creditors' remedies to reach negotiable documents. 122. Seller must deliver and buyer accept goods. 123. Delivery and payment are concurrent conditions. 124. Place, time and manner of delivery. 125. Delivery of wrong quantity. 126. Delivery in installments. 127. Delivery to a carrier on behalf of the buyer. 128. Right to examine the goods. 129. What constitutes acceptance. 130. Acceptance does not bar action for damages. 131. Buyer is not bound to return goods wrongfully delivered. 132. Buyer's liability for failing to accept delivery. 133. Definition of unpaid seller. 134. Remedies for an unpaid seller. 135. When right of lien may be exercised. 136. Lien after part delivery. • So in original. 86 CIVIL LAW AND PRACTICE. Beotion 137. When lien is lost. 138. Seller may stop goods on buyer's insolvency. 139. When goods are in transit. 140. Ways of exercising the right to stop. 141. When and how resale may be made. 142. When and how the seller may rescind the sale. 143. Effect of sale of goods subject to lien or stoppage in transitu. 144. Action for the price. 145. Action for damages for nonacoeptanee of goods. 146. When seller may rescind contract or sale. 147. Action for converting or detaining goods. 148. Action for failing to deliver goods. 149. Specific performance. 150. Remedies for breach of warranty. 151. Interest and special damages. 152. Variation of implied obligations. 153. Rights may be enforced by action. 154. Rule for cases not provided for by this article. 155. Provisions not applicable to mortgages. 150. Definitions. 157. Article does not apply to existing sales or contracts to sell. 158. No repeal of uniform warehouse receipt laws or uniform bills of lading laws. § 82. Contracts to sell and sales. 1. A contract to sell goods is a contract whereby the seller agrees to transfer the property in goods to the buyer for a consideration called the price. 2. A sale of goods is an agreement whereby the seller transfers the property in goods to the buyer for a consideration called the price. 3. A contract to sell or a sale may be absolute or conditional. 4. There may be a contract to sell or a sale between one part owner and another. § 83. Capacity; liability for necessaries. Capacity to buy and sell is regulated by the generaJ law concerning capacity to con- tract, and to transfer and acquire property. Where necessaries are sold and delivered to an infant, or to a person who by reason of mental incapacity or drunkenness is incompetent to contract, he must pay a reasonable price therefor. Necessaries in this section mean goods suitable to the condition in life of such infant or other person, and to his actual requirements at the time of delivery. § 84. Form of contract or sale. Subject to the provisions of this article and of any statute in that behalf, a contract to sell or a sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly by word of mouth, or may be inferred from the conduct of the parties. § 85. Statute of frands. 1. A contract to sell or a sale of any goods or choses in action of the value of fifly dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or SALES ANT) WAREAITTIES. 87 •unless some note or memorandum in writing of the contract or sale be signed by tlie party to be charged or his agent in that behalf. 2. The provisions of this section apply to every such contract or sale, notwithstanding that the goods may be intended to be delivered at some future time or may not at the time of such contract or sale be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery; but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller's business, the provisions of this section shall not apply. 3. There is an aooeptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods. § 86. Existing and future goods. 1. The goods which form the subject of a contract to sell may be either existing goods, owned or possessed by the seller, or goods to be manufactured or acquired by the seller after the making of the contract to sell, in this article called " future goods." 2. There may be a contract to sell goods, the acquisition of which by the seller depends upon a contingency which may or may not happen. 3. Where the parties purport to eflfect a present sale of future goods, the agreement operates as a contract to sell the goods. § 87. Undivided shares. 1. There may be a contract to sell or a sale of an undivided share of goods. If the parties intend to effect a present sale, the buyer, by force of the agreement, becomes an owner in common with the owner or owners of the remaining shares. 2. In the case of fungible goods, there may be a sale of an undivided share of a specific mass, though the seller purports to sell and the buyer to buy a definite number, weight or measure of the goods in the mass, and though the number, weight or measure of the goods in the mass is undetermined. By such a sale the buyer becomes owner in common of such a share of the mass as the number, weight or measure bought bears to the number, weight or measure of the mass. If the mass contains less than the number, weight or measure bought, the buyer becomes the owner of the whole mass and the seller is bound to make good the deficiency from similar goods unless a contrary intent appears. § 88. Destruction of goods sold. 1. Where the parties purport to sell specific goods, and the goods without the knowl- edge of the seller have wholly perished at the time when the agreement is made, the agreement is void. 2. Where the parties purport to sell specifio goods, and the goods without the knowl- edge of the seller have perished in part or have wholly or in a material part so deteriorated in quality as to be substantially changed in character, the buyer may at his option treat the sale — (a) As avoided, or (b) As transferring the property in all of the existing goods or in so much thereof as have not deteriorated, and as binding the buyer to pay the full agreed price if the sale was indivisible, or to pay the agreed price for the goods in which the property passes if the sale was divisible. § 89. Destruction of goods contracted to be sold. 1. Where there is a contract to sell specific goods, and subsequently, but before the risk passes to the buyer, without any fault on the part of the seller or the buyer, the goods wholly perish, the contract is thereby avoided. 88 CIVIL LAW AND PEACTICE. 2. Where there is a contract to sell specific goods, and subsequently, but before the risk passes to the buyer, without any fault of the seller or the buyer, part of the goods perish or the whole or a material part of the goods so deteriorate in quality as to be substantially changed in character, the buyer may at his option treat the contract — (a) As avoided, or (b) As binding the seller to transfer the property in all of the existing goods or in so much thereof as have not deteriorated, and as binding the buyer to pay the full agreed price if the contract was indivisible, or to pay the agreed price for so much of the goods as the seller, by the buyer's option, is bound to transfer if the contract was divisible. § 90. Definition and ascertainment of price. 1. The price may be fixed by the contract, or may be left to be fixed in such manner as may be agreed, or it may be determined by the course of dealing betvreen the parties. 2. The price may be made payable in any personal property. 3. Where transferring or promising to transfer any interest in real estate constitutes the whole or part of the consideration for transferring or for promising to transfer the property in goods, this article shall not apply. 4. Where the price is not determined in accordance with the foregoing provisions the buyer must pay a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular case. . § 91. Sale at u valuation. 1. Where there is a contract to sell or a sale of goods at a price or on terms to be fixed by a third person, and such third person without fault of the seller or the buyer, cannot or does not fix the price or terms, the contract or the sale is thereby avoided; but if the goods or any part thereof have been delivered to and appropriated by tho buyer he must pay a reasonable price therefor. 2. Where such third person is prevented from fixing the price or terms by fault of the seller or the buyer, the party not in fault may have such remedies against the party in fault as are allowed by the appropriate parts of this article. § 92. Effect of condition. 1. Where the obligation of either party to a contract to sell or a sale is subject to any condition which is not performed, such party may refuse to proceed with the contract or sale or he may waive performance of the condition. If the other party has promised that the condition should happen or be performed, such first mentioned party may also treat the n PEACTICE. of the clerk of Queens county; in the borough of Richmond in said city, in the office of the clerk of the county of Kichmond; in the borough of Manhattan in said city, in the office of the register of the county of ^New York, and in the borough of the Bronx in said city, in the office of the register of the county of Bronx. In every other city or town of the state, in the office of the city or town clerk, unless there is a county clerk's office in such city or town, in which case it must be filed therein. If the chattels mortgaged are in the city of New York at the time of the execu- tion of the mortgage, the mortgage or a true copy thereof must be filed in the county where the mortgagor alleges to reside at the time of the execution of the mortgage, and in the county where the property is situated. All liens and mortgages, including books and papers, pertain- ing thereto, now on file in the comptroller's office, shall be transferred to the office of the superintendent of public works, who shall preserve the same in his department, and who shall be vested with full power and authority to do and perform any and all things relating thereto in like manner and with the same force and effect as heretofore done and per- formed by the comptroller." If the mortgagor is a resident of the State, the mortgage must be filed in the town or city of his residence, (People ex rel. Stevens v. Hoyt, 66 N. Y. 606 ; Griffin & Curtis on Chattel Mortgages, p. 70.) A mortgage of both realty and personalty must be filed in the town clerk's office as to the personalty ; a filing in the county clerk's office is insufficient. Eiling in the clerk's office of the town wherein the mortgagor resided at the time of the execution of the mortgage, is sufficient, though the mort- gagor does not reside there at the time of the filing. {Hicks v. Williams, 17 Barb. 523.) The fact that the mortgagor is described in the instrument as resid- ing in a particular town or county is of no importance. A creditor or subsequent purchaser or mortgagee can show that such is not the true resi- dence of the mortgagor and thus defeat the mortgage lien. A person or creditor dealing with the mortgaged property is bound to look for mort- gages only in the town or city where the mortgagor actually resides. {Stewart v. Piatt, 101 U. S. 731 ; Beaumann v. Libetia, 3 Misc. 518, 23 N. Y. Snpp. 1; Griffin & Curtis on Chattel Mortgages', p. 71.) The mortgagee or his assignee is not estopped by an erroneous recital of the mortgagor's residence; he may show the correct residence of the mort- gagor and that the mortgage is properly filed at such residence. (Chandler V. Bunn, Hill & D. Supp, 167.) Where the mortgaged property is owned by two or more persons, as in the case of a mortgage given by a partnership, the mortgage or a copy CHATTEL MORTGAGES. 157 thereof must be filed in the town or city where each resides. (Russell V. 8t. Mart, 180 N. T. 355 ; Bueb v. Geraty, 28 Misc. 134, 59 N. Y. Supp. 249.) In the case of a chattel mortgage given by a joint stock association, the statute is complied with when the mortgage is filed where the principal office of the company is located or its business principally conducted. (Nelson v. Neil^ 15 Hun, 383.) A mortgage on a canal boat is to be filed in the office of the super- intendent of public works; and the mortgage of a liquor tax certificate is to be filed in the office of the certificate issuing officer. See Liquor Tax Law, § 12-a. See B. C. & G. Consolidated Laws.) § 19. Manner of filing. Where a chattel mortgage is in the form of a bill of sale with a separate defeasance, the filing of the bill of sale is sufficient to satisfy the statute. (Preston v. Southwick, 115 N. Y. 139.) If the defeasance were oral, as is many times the case, no other filing would be possible. Section 233 of the Lien Law (see B. C. & G Consolidated Laws), pro- vides for the filing and entry of chattel mortgages as follows : " Such officers shall file every such instrument presented to them for that pur- pose, and indorse thereon its number and time of its receipt. They shall enter in a book provided for that purpose, in separate columns, the names of all the parties to each mortgage so filed, arranged in alphabetical order, under the head of ' mortgagors ' and ' mortgagees,' the number of such mortgage or copy and the date of the filing thereof; and, if the mortgage be upon a craft navigating the canals, and filed in the office of the superintendent of public works, the name of the craft shall also be inserted. In the city of New York such officers shall in addition to the entry aforesaid enter in another book provided for that purpose a state- ment of the premises in which the chattels mortgaged are contained, arranged in alphabetical order, under the name of the street or avenue where the premises are situated and giving the number of such mort- gage or copy and the date of the filing thereof. In case no street or avenue is mentioned in the description, in the mortgage or copy, of the premises in which the chattels are contained, then a statement of such premises shall be entered under the title ' miscellaneous.' Except in the city of New York such officers at the time of filing of such instrument shall, upon request, issue to the person filing the same a receipt in writing, which shall contain the names of the parties to the mortgage, its date, amount and the date and time of the filing thereof." The statute requires the filing in the office of certain officials. If filed in the office, it is not necessary that the officer be personally present at 158 CIVIL LAW AND PKACTICE. the time. (Dodge v. Potter, 18 Barb. 193.) Thus, the filing may be made by a clerk in the stare of the town clerk having charge of the office in the absence of the officer. But a proper filing requires the act of the clerk or some person in charge of the office. An unsuccessful attempt to enter the office or to leave the mortgage at the office, when no one is present, is not a proper filing. (Croiise v. Johnson, 65 Hun, 337, 20 N. Y. Supp. 177.) Where a mortgage is delivered to the clerk after office hours and at a time when he is absent from his office, it is not deemed filed until it is taken to the office. (Hathaway v. Howell, 54 N. Y. 97.) Although, by reason of a vacancy in the office, there may be no town clerk, there is a town clerk's office. Thus, where there is a vacancy in such office, but a person, having the keys to the building con- taining the town clerk's office, placed a mortgage among other chattel mortgages and indorsed it as filed on a certain day, the filing is suffi- cient. (Bishop v. Cook, 13 Barb. 326.) The filing consists in presenting the mortgage at the office and leaving it at the proper place with the papers in the office. The numbering, indorsement and indexing are not substantial elements of the filing. These later acts are to be done by the officer, and their improper per- formance does not affect the rights of the mortgagee. If a third party is misled by the failure of the officer to properly perform his duty, he must seek redress against the officer. (Diheman v. Puckhafer, 1 Abb. Pr. N". S. 32, 1 Daly, 489; Griffin & Curtis on Chattel Mortgages, p. 76.) § 20. Payment of fees. " The several clerks and registers are entitled to receive for services hereunder, the following fees: For filing each instrument, or copy, six cents ; for issuing a receipt for the same, six cents ; for entering the same as aforesaid, six cents; for searching for each paper, six cents; and the like fees for certified copies of such instruments or copies as are allowed by law to clerks of counties for copies and certificates of record kept by them. The superintendent of public works is entitled to receive the following fees for services performed under this article, for the use of the State: For filing each instrument or copy and entering the same, twenty-five cents ; for searching for each paper, twenty-five cents ; and the like fees for certified copies of such instruments or copies as are allowed by law to be charged by the superintendent of public works for copies and certificates of records kept in his office. No officer is required to file or enter any such paper, or furnish a copy thereof, or issue a receipt therefor, until his lawful fees are paid." (Lien Law, § 234. See B. C. & G. Consolidated Laws.) CHATTEL MORTGAGES. 159 § 21. Effect of failure to file. By the statute, a chattel mortgage, not filed as prescribed therein, is void unless a change of possession of the property is made, as to creditors and subsequent purchasers or mortgagees in good faith. The instrument is void because the statute says so, not because it is tainted by any inherent vice. (Chemung Canal Bomh v. Payne, 164 N. Y. 252 ; Griffin & Curtis on Chattel Mortgages, p. 77.) It is not void as malum in se, but as malum prohibitum. It may be infected as to a portion of the property covered thereby and enforceable as to the balance. {Chemwng Canal Bank v. Payne, 164 JST. Y. 252; Hardin v. Dolge, 46 App. Div. 416, 61 N. Y. Supp. 753.) As between the parties thereto a mortgage is valid and enforceable without filing or change of possession. {Stephens v. Meriden Britannia Co., 160 N. Y. 178 ; Gandy v. Collins, 214 N. Y. 293 ; Griffin & Curtis on Chattel Mortgages, p. 77.) A mortgage not properly filed is void only as to the classes of persons mentioned in the statute, namely: creditors or subsequent purchasers or mortgagees in good faith. Thus, the mortgagee is entitled to the mort- gaged property as against a person wrongfully taking the same, though his mortgage is not filed. (Moses v. Walker, 2 Hilt. 536.) And an unfiled mortgage upon chattels brought by the mortgagor into a firm of which he becomes a member, as his proportion of the capital, is not void as against the other partners. (Ru^t v. Hauselt, 14 J. & S. 22.) A chattel mortgage not properly filed is void as to creditors, including simple contract creditors, whose debts were in existence at any time during the default in filing. Whether the debt accrued before or after the execu- tion of the mortgage is immaterial. (Karst v. Oane, 136 ]S[. Y. 316 ; Stephens v. Perrine, 143 IST. Y. 476; Griffin & Curtis on Chattel Mort- gages, p. 78.) But though the mortgage is void as against a simple con- tract creditor, he is not in a position to avail himself of the invalidity until he has procured, or is in a position to procure, a specific lien and claim against the property involved. (Shilton v. Codington, 185 N. Y. 80 ; Griffin & Curtis on Chattel Mortgages, p. 79.) This means, ordinarily, that he must procure judgment and cause execution to be issued against the property of the mortgagor. (Button v. Bathhone, Sard & Co., 126 ISr. Y. 187; Kitchen v. Lowery, 127 IST. Y. 53.) The granting of an attachment, however, is an adjudication of indebtedness, and a creditor armed with such process may attack the mortgage. (Ledoux v. East Biver Silk Co., 19 Misc. 440, 44 N. Y. .Supp. 489.) The commencement of an action by a creditor in which a receiver is appointed may operate as a sub- stitute for an execution or attachment. (Kitchen v. Lowery, 127 N. Y. 53.) The doctrine that a general creditor cannot attack an unfiled mort- 160 CIVIL LAW AND PEACTICE. gage is simply a rule of procedure and does not affect the right, and, therefore, where the recovery of a judgment is impracticable, it is not an indispensable requisite to enforcing the rights of the creditor. Thus, ■where the creditor, on account of the death of the mortgagor, cannot obtain a lien or claim upon the property, relief may nevertheless be secured in equity. (Matter of Munson, 70 Misc. 461, 128 N. Y. Supp. 1106.) A creditor who does not obtain a judgment, but takes a bill of sale of the goods with knowledge or notice of the existeiice of a mortgage thereon, takes no better title than the mortgagor had, and cannot attack the mort- gage. {Davidson v. Osborne, 151 App. Div. 747, 136 N". Y. Supp. 247.) But where a creditor, having a second mortgage on certain personal prop- erty, takes actual possession thereof, in an action by the first mortgagee for the conversion thereof, the creditor may set up the defense that the first mortgage was not properly filed. In such a case it is held that, if the instrument entitled the creditor to the immediate possession of the prop- erty, his right to take the same is as absolute as that of a creditor who has proceeded to judgment and execution. {Russell v. St. Mart, 180 IST. Y. 355.) An unfiled chattel mortgage is valid as against a judgment which was entered pursuant to a fraudulent scheme to cheat the creditors of the judgment debtor. {E. Be Braekeleer & Co. v. Schwah eland, 86 Hun, 143, 33 ]Sr. Y. Supp. 212, affd., 155 N. Y. 644.) But, if the judgment is valid, the mortgagee cannot complain that the execution was irregularly issued. {C rouse v. Schoolcraft, 51 App. Div. 160, 64 IST. Y. Supp. 640.) Knowl- edge of the existence of an unfiled mortgage is no answer to an attack thereon by a creditor, and the statute renders the mortgage void as to a creditor whether he has or has not knowledge of the mortgage. {Best v. Staple, 61 ]Sr. Y. 71; Griffin & Curtis on Chattel Mortgages, p. 81.) A mortgage not properly filed is void as against a subsequent purchaser or mortgagee in good faith. To show good faith in a subsequent mortgagee of personal property, so as to enable the holder thereof to avoid an unfiled mortgage, it must be proved by evidence dehors the instrument itself that the second mortgage was given for a valuable consideration, or to secure the payment of an honest debt. {BasMns v. Shannon, 3 IT. Y. 310.) Where a subsequent mortgage was taken in good faith, the fact that it was not properly filed does not deprive it of the protection of the statute. Its priority does not depend upon filing. {Witherbee v. Taft, 51 App. Div. 87, 64 IT. Y. Supp. 347.) Where a person in good faith buys mortgaged chattels, not from the mortgagor, but from one who is a mala fide purchaser, the last purchaser is not one who can attack the mortgage for failure to file. (Wooster v. Sherwood, 25 IST. Y. 278.) Thus, where a wife gives a chattel mortgage, CHATTEL MOETGAGES. 161 a purchaser or mortgagee from her husband is not in a position to attack the mortgage for failure to file. (Bah v. Shaw, 13 Misc. 181, 34 N. Y. Supp. 5.) But where the first purchaser is in good faith the second succeeds to his rights and can attack the mortgage. (See Dillingham v. Bolt 37 N. Y. 198.) A subsequent purchaser or mortgagee of chattels, having actual knowl- edge of an existing mortgage thereon, is not " in good faith," and the mort- gage is unenforceable as against him. (Gildersleeve v. Landon, Y3 IST. Y. 609; Gandy v. Collins, 214 IST. Y. 293; Davidson v. Oshorne, 151 App. Div. 747, 136 N". Y. Supp. 247 ; Griffin & Curtis on Chattel Mortgages, p. 82.) Where a second mortgage is given expressly subject to a prior one, the subsequent mortgagee is deemed to have actual knowledge of the prior and all its conditions, and cannot acquire a superior lien. (Independent Brewing Co. v. Durston, 55 Misc. 498, 106 N. Y. Supp. 686.) Where a person about to make a loan on chattels, knowing that a prior unfiled mort- gage on the property has been given, relies on the statement of the mort- gagor that the prior mortgage has been paid without inquiry of the mortga- gee, he is not a subsequent mortgagee in good faith. (Goodwin v. Bayerle, 18 Misc. 62, 41 IST. Y. Supp. 20.) When the act respecting the filing of chattel mortgages was first passed, the term bona fide purchaser had acquired a settled meaning which did not include a person whose purchase was on account of an existing debt and who parted with no property or right to obtain his conveyance. (Van Heusen v. Badcliffe, 17 N. Y. 580.) Thus, it has been consistently held that a subsequent purchaser or mortgagee, where the only consideration of the transfer is an existing debt or contract, is not in good faith and cannot attack the prior mortgage on the ground that it was not properly filed. (Thompson v. Van Vechten, 27 N. Y. 568; Griffin & Curtis on Chattel Mortgages, p. 83.) Where a debtor's property is conveyed to trustees to enable him to make preferences among his creditors, they are not pur- chasers in good faith. (Van Heusen v. Badcliffe, 17 iN". Y. 580.) l*J"or can one purchasing the mortgaged property from a second mortgagee for an antecedent indebtedness, with full knowledge of the prior mortgage, and of the claim of a preference made by the holders thereof, hold the property, as against such prior mortgagee. (Tiffany v. Warren, 37 Barb. 571.) Where personal property is levied upon and sold under an execution, the purchaser has the same right as the judgment creditor to attack a prior mortgage on the property; if the mortgage was not properly filed, it is ineffectual as against such a purchaser, though he had actual knowledge thereof. (Porter v. Parmley. 52 IST. Y. 185 ; Best v. Staple, 61 IST. Y. 11 162 CIVIL LAW AND PEACTICE. 71.) A purchaser on an execution sale holds under the judgment and is entitled to the priority. Any other construction of the statute would lead to the absurdity that, while the mortgage is void as to a judgment, such judgment could not be enforced because, provided the mortgagee would at any time before sale upon the execution file his mortgage and attend the sale and give notice of his mortgage, no one could purchase free therefrom. (Best V. Staple, 61 N. Y. 71.) But, if the sale is made expressly subject to the prior mortgage, the purchaser is estopped from disputing the validity of such a mortgage. (Ilorton v. Davis, 26 IST. Y. 495 ; Porter v. Parmley, 52 jST. Y. 185.) Where a second mortgagee has actual knowledge of a prior unfiled mort- gage, his assignee, though he took the assignment of such second mortgage in good faith for value, cannot avoid the prior mortgage. (David Steven- son Brewing Co. v. lia, 12 Misc. 329, 33 IST. Y. Supp. 642.) A person in possession of chattels, with a right to such possession, inferior only to the rights of a mortgagee thereof, where he is also a creditor of the mort- gagor, is generally entitled to attack the mortgage, though he has not secured judgment upon his debt. Thus, a subsequent mortgagee in pos- session, though he did not take his mortgage in good faith, may, by reason of his right as a creditor, in some cases, attack the prior mortgage. (Bus- sell V. St. Mart, 180 N. Y. 355.) Under sections 47, 67 and 70 of the Bankruptcy Act, a trustee in bank- ruptcy is invested with power to attack a chattel mortgage on the ground that it was not properly filed, though the creditors he represents have not procured judgments. (Shilton v. Codington, 185 IsT. Y. 80; Titusville Iron Co. v. City of New Yorh, 207 K Y. 203.) § 22. Transfer of chattels as affecting failure to file mortgage. Except as limited by the Bankruptcy Act and other special statutes, a debtor has the right to transfer his property to one creditor, giving such creditor a preference to the exclusion of his other creditors. Thus, where a mortgagee has failed to properly file his mortgage, if, before any lien upon the mortgaged property has been acquired by a creditor or person who may attack the mortgage, the mortgagor voluntarily transfers the mortgaged property to the mortgagee in payment of the debt or satisfac- tion of the mortgage, the mortgagee thereby acquires a good title to the property. (Tremaine v. Mortimer, 128 N. Y. 1; Karst v. Gane, 136 IsT. Y. 316; Stephens v. Perrine, 143 IST. Y. 476; Bowdish v. Page, 153 If. Y. 104; Griffin & Curtis on Chattel Mortgages, p. 88.) But, if the mortgagee of an unfiled mortgage acquires the mortgaged property, not by a voluntary transfer by the mortgagor, by a seizure or foreclosure under CHATTEL MORTGAGES. 163 the mortgage, the mortgagee's title is still subject to the claims of creditors. {Stephens v. Perrine, 143 IST. Y. 476 ; Bussell v. St. Mart, 180 N. Y. 355 ; Matter of Munson, 70 Misc. 461, 128 IST. Y. Supp. 1106.) In such case, however, the creditor cannot maintain an action at law against the mort- gagee for the conversion of the mortgaged chattels, but must sue in equity to set aside the transfer as an obstruction to the collection of his debt. {Stephens v. Meriden Brittania Co., 160 N. Y. 178.) Where a mortgagee takes possession of the property by virtue of the mortgage, advertises it for sale and sells it to a hona fide purchaser before the creditor of the mortgagor has acquired any lien upon or interest in the property by virtue of legal proceedings, such purchaser obtains a valid title which he can maintain against a receiver of the property of the mort- gagor appointed in proceedings supplementary to execution. {Merry v. Wilcox, 92 Hun, 210, 36 IST. Y. Supp. 1051.) Where a mortgage is unfiled, and, therefore, void as to creditors, but the creditors of the mortgagor fail to avail themselves of their right to attack the mortgage until he makes an assignment for the benefit of credit- ors, they lose their right to levy upon his property, and the assignee takes rights superior to individual creditors and in trust for all the creditors. {Kitchen v. Lowry, 127 N. Y. 53 ; Dorthy v. Servis, 46 Hun, 628, 13 St. Rep. 1.) § 23. Refiling of chattel mortgages. Section 235 of the Lien Law (see B. C. & G. Consolidated Laws), pro- vides for the refiling of chattel mortgages as follows : " A chattel mort- gage, except as otherwise provided in this article, shall be invalid as against creditors of the mortgagor, and against subsequent purchasers or mortga- gees in good faith, after the expiration of the first or any succeeding term of one year, reckoning from the time of the first filing, unless, 1. Within thirty days next preceding the expiration of each such term, a statement containing a description of such mortgage, the names of the parties, the time when and place where filed, the interest of the mortgagee or any person who has succeeded to his interest in the property claimed by virtue thereof, or 2. A copy of such mortgage and its indorsements, together with a state- ment attached thereto or indorsed thereon, showing the interest of the mortgagee or of any person who has succeeded to his interest in the mort- gage, is filed in the proper oflSce in the city or town where the mortgagor then resided, if he is then a resident of the town or city where a mortgage or a copy thereof or such statement was last filed ; if not such resident, but 164 CIVIL LAW A^D PEACTICE. a resident of the State, a true copy of such mortgage, together with such statement, shall be filed in the proper ofiice of the town or city where he then resides ; and if not a resident of the State, then in the proper office of the city or town where the property so mortgaged was at the time of the execution of the mortgage, a copy of such mortgage and its indorsements together with a statement attached thereto, or indorsed thereon, showing the interest of the mortgagee, or of any person who has succeeded to his interest in the mortgage, must be filed in the same office or offices where the original mortgage or a copy thereof was filed at the time of the execution of the same; provided, however, that where mortgagor was a resident of the borough of the Bronx in the city of New York at the time of the execution of such mortgage, then a copy of such mortgage as above described must be filed in the office of the register of the county of Bronx and also in the office of the register of the county clerk, in case there is no register, of such county in said city in which the property so mortgaged was located at the time .of the execution of such mortgage, if not such resident but the property so mortgaged was located in the borough of the Bronx in said city at the time of the execution of such mortgage, then a copy of such mortgage as above described must be filed in the office of the register of the county of Bronx and also in the office of the register of the county clerk, in case there is no register, of such county in said city in which the mortgagor resided when such mortgage was executed ; provided, further, that where the mortgagor was a resident of the borough of the Bronx in the city of New York at the time of the execution of such mort: gage and the property so mortgaged was located in the borough of the Bronx at such time, then a copy of such mortgage as above described must be filed in the office of the register of the county of Bronx and need not be filed in any other office, and, provided further, that where the vendee of a contract for the conditional sale of goods and chattels not attached to a building was a resident of the borough of the Bronx in said city of New York at the time of the execution of such contract, then a copy of such contract, together with a statement as required herein in the case of chattel mortgages, must be filed in the office of the register of the county of Bronx ; if not such resident, nor a resident of any other borough within the city of New York, nor of this State at the time of the execution of such con- tract, but the property so sold was in the borough of the Bronx in said city when such contract was executed, then a copy of such contract and a statement as aforesaid must be filed in the office of the register of the county of Bronx. Except in the city of New York, the officer with whom such a renewal statement or copy of a mortgage is filed, shall upon request issue to the person filing the same a receipt in writing, which shall contain CHATTEL MOETGAGES. 165 the names of the parties to the mstrument filed, its date, amount and the date and time of filing thereof." § 24. Object and construction of statute as to refiling. The object of the statute with reference to the refiling of chattel mort- gages is to furnish a fair and reasonable notice to creditors and subsequent purchasers and to prevent their being misled by the possession and apparent absolute ownership of the mortgagor, and is to inform creditors, pur- chasers, etc., of the extent of the mortgagee's claim under the mortgage, and thus to apprise them of the interest of the mortgagor which they may seek to levy upon, or give credit to, or acquire. {Beers v. Waterhury, 8 Bosw. 396.) In order to maintain the validity of a chattel mortgage as against creditors and subsequent purchasers and mortgagees in good faith, there must be a strict and rigid observance of the statutory requirement. (Industrial Loan Assoc, v. Saul, 34 Misc. 188, 68 N. Y. Supp. 837.) When a creditor or subsequent purchaser or mortgagee in good faith claims the property in hostility to the mortgagee, the inquiry is : Has the mortgagee complied with the statute ? If not, the statute makes the mort- gagee void. The cause of the omission, whether by design or accident, is wholly immaterial. (Ely v. Carnley, 19 N. Y. 496.) § 25. Necessity of refiling. As against the persons named in the statute, the mortgagee must refile the mortgage as provided by section 235 of the Lien Law, or take possession of the property. (GriflSn & Curtis on Chattel Mortgages, p. 93.) Even though the mortgage has become due during the year and the mortgagor is in default so that the absolute title to the mortgaged property has vested in the mortgagee, if the mortgagee permits the mortgagor to retain pos- session, he must refile the mortgage. (Ely v. Carnley, 19 N. Y. 496 ; Porter v. Farmley, 52 N". Y. 185 ; Sloan v. National Surety Co., Ill App. Div. 94, 97 N. Y. Supp. 561, affd., 188 IsT. Y. 596.) Mortgages creating a lien upon real and personal property, executed by a corporation as security for the payment of bonds issued by such corpora- tion, or by any telegraph, telephone, or electric light corporation, and recorded as a mortgage of real property in each county where such prop- erty is located or through which the line of such telegraph, telephone or electric light corporation runs, need not be filed or refiled as chattel mort- gages. (Lien Law, § 231. See B. C. & G. Consolidated Laws.) A special section of the Lien Law is devoted to mortgages on canal boats. It provides as follows : " Every mortgage upon a canal boat or other craft navigating the canals of this State, filed as provided in this article, 166 CIVIL LAW AND PEACTIOE. shall be valid as against the creditors of the mortgagor and against sub- sequent purchasers or mortgagees in good faith, as long as the debt ■which the mortgage secures is enforceable. From the time of filing, every such mortgage shall have preference and priority over all other claims and liens, not existing at the time of such filing." (Lien Lav?, § 236. See B. C. & Q. Consolidated Lavs^s.) The language of this section of the Lien Law seems to render it unnecessary to refile such a chattel mortgage. § 26. Time of refiling. The refiling of a chattel mortgage must be v^ithin the thirty days pre- ceding the expiration of one year from the original filing. A subsequent refiling does not avail the mortgagee. {Industrial Loan Assoc, v. Saul, 34 Misc. 188, 68 JST. Y. Supp. 837.) A refiling before the thirty day period IS equally inefficient. (Newell v. Warner, 44 Barb. 258, reversed on other grounds, 44 N. Y. 244.) Under section 20 of the General Construction Law, it seems that when the last day for refiling falls on Sunday or a public holiday, a refiling on the following day is sufficient. (Griffin & Curtis on Chattel Mortgages, p. 94.) § 27. Statement of interest of mortgagee on refiling. The statute provides two methods to continue the effectiveness of a chattel mortgage. Either a copy of the mortgage or a statement describing the same may be filed. But, in either case, a statement of the present interest of the mortgagee or the holder of the mortgage must be filed. The object of the Legislature in providing for the filing of a statement of this kind was to apprise creditors and persons dealing with the property, from year to year, of the real interest of the mortgagee and the mortgaged property. (Scott v. 1,000 Island Boat & Engine Co., 134 IST. Y. Supp. 150.) The interest of the mortgagee must be stated with substantial accuracy. (Marsden v. Cornell, 62 N. Y. 215.) But, if the mortgagee makes a statement in good faith, with reasonable care and it is substantially accurate, he is deemed to have complied with the statute, though it is not entirely definite and accurate to the smallest amount. (Patterson v. Gillies, 64 Barb. 563.) An understatement of the amount does not affect the validity of the mortgage as to the amount which is stated ; but the mort- gagee cannot, as against the parties to be protected by the statute, after- wards claim that any greater sum is secured by the mortgage than is mentioned in terms or by intelligible reference in the statement. (Beers v. Waterhury, 8 Bosw. 396.) A statement is sufficient which refers to a document annexed to and filed with it, if the two papers, read in con- CHATTEL MOETGAGES. 167 uection with the original mortgage, disclose the interest of the mortgagee intelligently. (Beers v. Waterbury, 8 Bosw. 386.) § 28. By whom refiling shall be made. The statement of the renewal of a mortgage must be made by the mort- gagee or his attorney. A statement by the mortgagor, or other third person, is not sufficient. (Osborne v. Alexander^ 40 Hun, 323.) But where the statement is made by the mortgagor, it may contain sufficient to constitute a new mortgage and thus be valid from the time of its filing. But the mere indorsement of a certificate or acknowledgment of the amount due upon a copy of the mortgage filed by the mortgagor is not the execution of a new mortgage. (Osborne v. Alexander, 40 Hun, 323.) § 29. Effect of failure to refile. A failure to properly refile or renew a chattel mortgage renders it abso- lutely void as against the persons named in the statute, that is, creditors or subsequent purchasers or mortgagees in good faith. (Salmon v. N orris ^ 82 App. Div. 362, 81 IST. Y. Supp. 892 j Griffin & Curtis on Chattel Mort- gages, p. 97.) As to such persons it is of no more force than if it had never existed; but, as between the parties thereto, a mortgage, although not refiled, is valid. (Stewart v. Cole, 43 Hun, 164; Commercial Bank of Rochester v. Davy, 81 Hun, 230, 30 IST. Y. Supp. 718.) As a general proposition only those persons specifically mentioned in the statute can attack the mortgage for a failure to refile. (Wiles v. Clapp, 41 Barb. 645. ) It is not necessary that the mortgage be refiled to enable the mortgagee to maintain an action against a third person for taking the chattels from the possession of the mortgagor within a year from the original filing. (Manning v. Monaghan, 10 Bosw. 231, reversed on other grounds, 28 JST. Y. 585.) A creditor can, as a general proposition, attack a mortgage for a failure to refile under the same circumstances as for a failure to file originally. If not properly renewed, the mortgage is void as to creditors, whether judgment or simple contract creditors, and whether their debts accrued before, or subsequent to the default in refiling. (Thompson v. Van Vechten, 27 N. Y. 568 ; State Trust Co. v. Casino Co., 5 App. Div. 381, 39 K Y. Supp. 258 ; Matter of Van Houten, 18 App. Div. 301, 46 K Y. Supp. 190; Griffin & Curtis on Chattel Mortgages, p. 98.) A creditor, however, is not generally in a position to attack the mortgage until he lias procured a judgment and execution or some specific lien or claim upon the mortgaged chattels. (Schwab Mfg. Co. v. Aieenman, 106 App. Div, 168 CIVIL LAW AND PEACTICE. 478, 94 N. Y. Supp. 729 ; Cullin v. Byder, 44 Misc. 485, 89 N. Y. Supp. 465, affd.. Ill App. Div. 911.) But where the mortgagor dies and thus renders the recovery of a judgment impracticable, the mortgage may be deemed void as to a creditor though his claim is not reduced to judgment. (Matter of McOovern, 118 I^. Y. Supp. 378.) And where a warehouse- man has possession of the property with a right to sell it in discharge of his lien thereon, he is regarded as a judgment creditor in respect to assail- ing the mortgage. (State Trust Co. v. Casino Co., 5 App. Div. 381, 39 IsT. Y. Supp. 258; Industrial Loan Assoc, v. Saul, 34 Misc. 188, 68 K Y. Supp. 837.) A creditor taking possession of the mortgaged property under a second chattel mortgage may also be in a position to attack the prior mortgage. (See Russell v. St. Mart, 180 'N. Y. 355.) A mortgage not properly renewed is void as against a subsequent pur- chaser or mortgagee in good faith who takes his conveyance during the default. (Gibson v. Ferris, 30 St. Eep. 663, 9 IST. Y. Supp. 535.) The term " subsequent " as used in section 235 of the Lien Law means after the time for the refiling has passed. Thus a purchaser or mortgagee of the property within one year from the original filing cannot attack the mort- gage for failure to refile. (Meech v. Patchin, 14 IST. Y. 71 ; Dillingham v. Bolt, 37 N. Y. 198.) The term " purchasers," as used in the statute, is not expressly limited to purchasers from the mortgagor. Thus, though a person taking his conveyance before the expiration of a year from the original filing cannot attack the mortgage, a bona fide purchaser or mort- gagee, after the year, from such purchaser will acquire a good title as against the mortgagee. (Dillingham v. Bolt, 37 N. Y. 198 ; Beshin v. Tergenspan, 32 App. Div. 29, 52 N. Y. Supp. 750.) The first purchaser can thus convey a better title than he himself had. And, where a second mortgage is given within a year after the filing of the first mortgage, which was not properly refiled, on a sale under the second mortgage after the year, the purchaser takes a title superior to the first. (Jaqueth v. Merritt, 29 Hun, 584.) So, a subsequent purchaser with actual knowledge thereof is not in a position to attack a prior mortgage, but this does not prevent him from giving to a purchaser from him, ignorant of the existence of the mortgage, who pays a valuable consideration for the chattel, a title free from the operation of the mortgage. (Marsden v. Cornell, 62 IT. Y. 215.) Upon the death of the mortgagor, a purchaser in good faith from his executor, administrator or person succeeding to the mortgagor's equity of redemption, may attack the mortgage not refiled. (Griffin & Curtis on Chattel Mortgages, p. 100.) A purchaser or mortgagee of chattels, where the sole consideration for the conveyance is an antecedent debt, is not a purchaser in good faith and CHATTEL MORTGAGES. 169 cannot attack the mortgage for failure to refile, {Jones v, Graham, 77 JST. Y. 628.) A subsequent purchaser or mortgagee, with actual knowledge of a prior mortgage upon the property, cannot be considered a purchaser in good faith and cannot avoid the mortgage because the mortgagee neglected to properly refile the same. {Hill v. Beehe, 13 IST. Y. 556 ; Lewis V. Palmer, 28 N. Y. 271; Mach v. Phelan, 92 N. Y. 20.) To charge a purchaser of mortgaged property, as subordinate to the mortgage, on the ground of actual notice, where the purchase is made after the expiration of the one year and no renewal is filed, it is not enough to show that the purchaser knew of the, original mortgage; it must be shown that, when he purchased after the expiration of the year, he knew or had notice that the mortgage debt had not been paid. {Power v. Freeman, 2 Lans. 127.) Where a creditor of a mortgagor levies upon and sells the mortgaged property under an execution, the purchaser succeeds to the rights of the creditor, and, though h« has knowledge of the mortgage, he may attack the same, if the mortgagee has omitted the duty of refiling. {McCrea v. Hopper, 35 App. Div. 572, 55 N. Y. Supp. 136.) But where the sale is made expressly subject to the lien of the mortgage, the purchaser takes subject to the mortgage and cannot object to the mortgagee's failure to refile. {McCrea v. Hopper, 35 App. Div. 572, 55 IST. Y. Supp. 136.) A person who pays a judgment rendered against him for the conversion of a chattel acquires title to the chattel, but he is not a purchaser in good faith within the meaning of the chattel mortgage statute and cannot attack a prior mortgage on the ground that it was not properly refiled. {Marsden v. Cornell 62 JST. Y. 215.) § 30. Change of possession of property in lieu of refiling. Where the mortgagee takes the mortgaged property into his possession before the expiration of a year from the original filing, it is not necessary for the preservation of his rights that he refile or renew the mortgage. {Porter v. Parmley, 52 K Y. 185 ; Breeze v. Bayne, 202 I^T. Y. 206 ; GrifSn & Curtis on Chattel Mortgages, p. 103.) And, if the mortgagor voluntarily transfers the mortgaged chattels to the mortgagee in partial or in full discharge of the mortgagee's debt before the creditor obtains an execution or specific lien upon the property, the mortgagee's title will be sustained though the mortgage was not refiled. {Tremaine v. Mortimer, 128 N. Y. 1 ; Commercial Bank of Rochester v, Davy, 81 Hun, 200, 30 1S[. Y. Supp. 718.) The possession of a mortgagee under a chattel mort- gage, which renders refiling thereof unnecessary, must be an actual and continued change of possession which is open and public. {Farmers' L. & 170 CIVIL LAW AXD PEACTICE. T. Co. V. Baker, 20 Misc. 387, 46 IST. Y. Supp. 266.) Mere words do not constitute a change of possession. (GrifBn & Curtis on Chattel Mortgages, p. 104.) § 31. Fraudulent chattel mortgages. As a general proposition, where a chattel mortgagor is permitted by an agreement with the mortgagee to dispose of the mortgaged property and to use the proceeds thereof for his own benefit, the mortgage is fraudulent and ineffectual as against creditors of the mortgager. ( Griswold v. Shel- don, 4 1^. Y. 581 ; Skilton v. Codington, 185 N. Y. 80 ; Zartman v. First National Bank, 189 IST. Y. 267; Baillargeon v. Dumoulin, 165 App. Div. 730, 151 ISr. Y. Supp. 112 ; Griffin & Curtis on Chattel Mortgages, p. 108.) Such fraudulent arrangements may or may not be contained in the mort- gage. A mortgage in the usual form is void as to creditors, where such unlawful agreement exists between the parties, though it is not expressed in words. (Brackett v. Harvey, 91 'S. Y. 214 ; Hangen v. Hachemeister, 114 ]Sr. Y. 566; Spurr v. Hall, 46 App. Div. 454, 61 K Y. Supp. 854.) Such an agreement may be inferred from the fact that the mortgagee has permitted sales to be made for the use of the mortgagor. (Griffin & Curtis on Chattel Mortgages, p. 110.) The question frequently arises in connection with a mortgage upon a stock of goods. Where the mortgagor has the power to continue the busi- ness and sell the goods in the same manner as before the execution of the mortgage, with power to use the proceeds for the support of himself and family, and the purchase of new goods, the mortgage is general fraudulent. (Bracket v. Harvey, 91 N. Y. 214.) A method, however, is now outlined by statute, which the parties may follow, and thus escape the strictness of the rules here stated. Section 45 of the Personal Property Law (see B. C. & G. Consolidated Laws) permits a chattel mortgage on a stock of goods to be given under certain circumstances. Its provisions are as fol- lows : " Liens upon merchandise or the proceeds thereof created by agree- ment for the purpose of securing the repayment of loans or advances made or to be made upon the security of said merchandise and the payment of commissions or other charges provided for by such agreement, shall not be void or presumed to be fraudulent or void as against creditors or otherwise, by reason of want of delivery to or possession on the part of the lienor, whether such merchandise shall be in existence at the time of the creation of the lien or shall come into existence subsequently thereto or shall sub- sequently thereto be acquired" by the person creating the lien, provided there shall be placed and maintained in a conspicuous place at the entrance of every building or place in or at which such merchandise, or any part CHATTEL MORTGAGES. 171 thereof, shall be located, kept or stored, a sign on which is printed in legible English the name of the lienor and a designation of said lienor as lienor, factor or consignee, and provided, further, that a notice of the lien is filed, stating : " 1. The name of the lienor, and the name under which the lienor does business, if an assumed name ; the principal place of business of the lienor within the State; and, if the lienor is a partnership or association, the names of the partners, and, if a corporation, the State under whose laws it was organized. " 2. The name of the person creating the lien, and the interest of such" person in the merchandise, as far as known to the lienor. " 3. The general character of the merchandise subject to the lien or which may become subject thereto, and the period of time during which such loans or advances may be made under the terms of the agreement creating the lien. " Such notice must be verified by the lienor or his agent, to the effect that the statements therein contained are true to his knowledge. It must be filed with the officer designated in section two hundred and thirty-two of the Lien Law, in every town or city where the merchandise, subject to the lien, or any part thereof, is or at any time shall be located, kept or stored, and also in the town or city where the principal office or place of business of the lienor within the State is or at any time shall be located. Such officers shall file every such notice presented to them for that purpose and shall endorse thereon its number and the time of its receipt. They shall enter in a book provided for that purpose, in separate columns, the names of the parties named in each notice so filed under the head of ' owners ' and ' lienors,' the number of such notice and the filing thereof, and the general character of the merchandise as therein stated. The names of the persons creating the liens, as stated in the notice, shall be arranged in alphabetical order under the head of ' owners.' Such officers at the time of filing such notice shall upon request issue to the person filing the same a receipt in writing, containing the substance of the entries or to be made as hereinabove provided. Such officers shall be entitled to receive for their services hereunder fees at the same rates as provided in section two hundred and thirty-four of the Lien Law. " Such notice may be filed at any time after the making of the agree- ment, and shall be effectual from the time of the filing thereof as against all rights of third parties thereafter arising. Upon the payment or satis- faction of indebtedness secured by any lien specified in this section, the lienor or his legal representative, upon the request of any person interested in the said merchandise, must sign and acknowledge a certificate setting 172 CIVIL LAW AND PRACTICE. forth such payment or satisfaction. The officer or officers with whom the notice of lien is filed must, on receipt of such certificate or a copy thereof certified as required by law, file the same in his office and write the word ' discharged ' in the book where the notice of lien is entered opposite the entry thereof, and the lien is thereby discharged. " If the agreement creating such lien shall also give the lienor the right to or lien upon accounts receivable resulting from or which may result from a sale or sales of the merchandise subject to the lien, or of part of such merchandise, such right of lien shall not be void or ineffectual as aginst creditors or otherwise, by reason of want of possession of any of such account on the part of the lienor or by reason of failure to make or deliver a further assignment of any such account, provided a bill, invoice, statement or notice shall be mailed, sent or delivered to the person owing such account receivable, stating or indicating that the account is payable to the lienor, and such mailing, sending or delivery of such bill, invoice, statement or notice shall have the same effect as a formal assignment of such account to the lienor named therein." A transfer of personal property, made in trust for the use of the person making it, is void as against the existing or subsequent creditors of such person. (Personal Property Law, § 34.) This statute does not vitiate a chattel mortgage given by a debtor to one of his creditors, though the surplus of the property, after satisfaction of the creditor's demand, is to be returned to the mortgagor. (Dunham v. Whitehead, 21 N. Y. 131.) It is a customary provision of a chattel mortgage that the surplus shall be returned to the mortgagor. The statute covers only passive trusts for the exclusive use of the grantor, or where the use of the grantor is the chief purpose, and has no application to trusts which are only incidental, and are expressed, or result to the use of the grantor, after the exercise of the primary purpose, which is lawful. (Delaney v. Valentine, 154 IST. Y. 692.) A chattel mortgage given to a creditor to secure the debts of such creditor and certain other creditors of the mortgagor, though his property is not sufficient to pay all of his creditors, is not necessarily fraudulent or void by reason of the statute, where it was given and received in good faith without fraudulent intent on the part' of either party. (Delaney v. Valentine, 154 IST. Y. 692.) From earliest times, transfers of property made with the intent to delay, hinder or defraud the creditors of the owner, have been deemed void as to such creditors. The rule is now embodied in section 35 of the Personal Property Law, providing: "Every transfer of any interest in personal property, or the income thereof, and every charge on such property or income, made with the intent to hinder, delay or defraud creditors or other CHATTEL MOETGAGES. 173 persons of their lawful suits, damages, forfeitures, debts or demands, and every bond or other evidence of debt given, suit commenced, or decree or judgment suffered, writh such intent, is void as against every person so hindered, delayed or defrauded." To avoid the mortgage the creditor must show, not only the fraudulent purpose of the mortgagor, but that the mort- gagee was a party to the fraud and took the mortgage with such unlawful intent. {Zoeller v. Riley, 100 N. Y. 103; Hyde v. Bloomingdale, 23 Misc. 728, 51 JST. Y. Supp. 1025.) A husband honestly indebted to his wife may give her a chattel mortgage to secure the debt, although at the time of executing it he is unable to pay his debts in full ; and when it is found by the jury that the mortgage was given with honest intent, and not for the purpose of hindering, delaying or defrauding creditors, it is valid. {Manchester v. Tihhetts, 121 IS". Y. 219 ; Spaulding v. Eeyes, 125 K. Y. 113.) But dealings between a husband and wife which resulted in the appropriation of the husband's property for the payment of a debt claimed to be due to the wife, to the exclusion of other creditors, furnish uncommon opportunities for the perpetration of fraud, and are carefully and critically criticized. {Stanley v. Nai, Union Bank, 115 N". Y. 122.) The fact that the statement of the amount secured by a mortgage is incor- rect does not per se render the mortgage fraudulent. {Miller v. Lockwood, 32 ]Sr. Y. 293 ; Frost v. Warren, 42 N. Y. 204; Griffin & Curtis on Chattel Mortgages, p. 122.) But an overstatement of the sum is a badge of fraud, and may afford, together with the other circumstances in the case, ground upon which the jury may find the mortgage fraudulent. {Miller v. Lock- wood, 32 N. Y. 293.) If held fraudulent by reason of an excessive state- ment of the debt, it is not available to the mortgagee, even for the amount actually due. The consideration given for a chattel mortgage is always a highly important circumstance in ascertaining whether it was given in fraud of creditors, but it is by no means conclusive. A mortgage may be held fraudulent though based upon a valuable consideration, for, to be valid, it is essential that it be also given in good faith. {Billings v. Russell, 101 N. Y. 226.) Upon the other hand it is expressly provided by statute that " a transfer or charge shall not be adjudged fraudulent as against creditors or purchasers, solely on the ground that it was not founded on a valuable consideration. (Personal Property Law, § 38.) § 32. Who may attack fraudulent mortgage. A creditor at large of a mortgagor is not in a position to attack a mort- gage given by his debtor; he must first procure a judgment and execution 174 CIVIL LAW AND PRACTICE. or some specific lien against the property. {Shilton v. Codington, 86 App. Div. 166, 83 N. Y. Supp. 351, reversed on other grounds, 185 JST. Y. 80.) By attaching the property as that of the mortgagor, he acquires a lien thereon and may impeach the title of the mortgagee. (Frost v. Mott, 34 N. Y. 253.) A creditor with a judgment rendered by a justice of the peace may attack a chattel mortgage given by his debtor, and may do so though the judgment is obtained upon attachment. (Bailey v. Burton, 8 Wend. 339.) Where the creditor has a mortgage to secure his debt, he may attack a prior mortgage upon the same property on the ground that it is fraudulent as to the creditors of the mortgagor. (Anderson v. Sunn, 5 Hun, 79.) If the creditor has levied upon personal property of his debtor under a valid judgment, he may bring a suit in equity in aid of his. execution to procure an adjudication that a chattel mortgage upon such property is void as against his judgment. And where the mortgagee takes- possession of and sells the mortgaged property before the creditor obtains a judgment and execution against the same, the creditor can compel the mortgagee to account for the value thereof. (Pfeiffer v. Roe, 108 App. Div. 54, 95 N. Y. Supp. 1014.) By virtue of section 19 of the Personal Property Law certain representa- tive persons are authorized to assail mortgages as against their benefi- ciaries. The statute provides as follows : " An executor, administrator), receiver, assignee or trustee, may, for the benefit of creditors or others interested in personal property, held in trust, disaffirm, treat as void and resist any act done, or transfer or agreement made in fraud of the rights of any creditor, including himself, interested in such estate, or property, and a person who fraudulently receives, takes or in any manner interfere^ with the personal property of a deceased person, or an insolvent corpora- tion, association, partnership or individual is liable to such executor, administrator, receiver or trustee for the same to the value thereof, and for all damages caused by such act to the trust estate. A creditor of a deceased insolvent debtor, having a claim against the estate of such debtor, exceeding in amount the sum of $100, may, without obtaining a judgment on such claim, in like manner for the benefit of himself and other creditors interested in said estate, disaffirm, treat as void and resist any act done or conveyance, transfer or agreement made in fraud of creditors or maintain an action to set aside such act, conveyance, transfer or agreement. Such claim, if disputed, may be established in such action. The judgment in such action may provide for the sale of the property involved, when a con- veyance or transfer thereof is set aside, and that the proceeds thereof be brought into court or paid into the proper surrogate's court to be admin- istered according to law." CHATTEL MOETGAGES. 175 § 33. Right of mortgagor to transfer mortgaged property. Before default in the payment of a chattel mortgage, a mortgagor may sell or mortgage the property, and the purchaser may hold the same subject to the mortgage. Such a purchaser may again, before default, sell and deliver to another, with the like effect, and in such case the remedy of the mortgagee, upon maturity of a mortgage debt, is to follow the property and recover it from the possession of the last purchaser. (Porter v. Farm- ley, 43' How. Pr. 445, reversed on other grounds, 52 !N". Y. 185 ; Griflfin & Curtis on Chattel Mortgages, p. 126.) If a second mortgagor, who took his mortgage before default in the first, seizes the property under his mort- gage after the mortgagor defaults in the first, he is liable to the latter for conversion. (Kleinherger v. Brown, 26 J. & S. 4, 8 IST. Y. Supp. 866.) After default, the mortgagor loses all legal title to the mortgaged prop- erty; he cannot sell or mortgage it. But he may, even then, transfer his possession together with his equity of redemption. (Kitchen v. Lowry, 127 IST. Y. 53 ; Tremame v. Mortimer, 128 IST. Y. 1.) Even after the mort- gagee has taken possession of the property, the mortgagor has a beneficial interest therein which he may convey. (Tremaine v. Mortimer, 128 K Y. 1.) A mortgagor of personal property may not always be bound, at the peril of being charged with fraud, to disclose whether the property is encum- bered; the mortgagee may search the clerk's office and protect himself against prior mortgages. But, if the subsequent mortgagee, at the time of taking his mortgage, inquire of the mortgagor whether there are prior mortgages upon the property and the mortgagor falsely asserts that there are none, fraud may be predicated. (Lynch v. Tihhits, 24 Barb. 51.) The mortgagor, by selling the mortgaged property without the consent of the mortgagee, may render himself liable to criminal prosecution. Sec- tion 940 of the Penal Law provides : " A person, who, having theretofore executed a mortgage of personal property, or any instrument intended to operate as such, sells, assigns, exchanges, secretes or otherwise disposes of any part of the property, upon which the mortgage or other instrument is at the time a lien, with intent thereby to defraud the mortgagee or a pur- chaser thereof, is guilty of a misdemeanor." To secure a conviction under this section of the Penal Law, it must be shown that the act of the defendant in disposing of the property was " with intent to defraud," (People V. Staion, 79 App. Div. 634, 80 IST. Y. Supp. 2.) If the mort- gagee gave the mortgagor absolute permission to sell the property, no conviction can be had; but where the permission was only to enable the mortgagor to pay the mortgage and the mortgagor, with fraudulent intent. 176 CIVIL LAW AND PEACTICE. planned to sell and convert the proceeds to his own use, he may be con- victed. (MilUchamp v. People^ 14 M^'eek, Dig. 252.) § 34. Right of mortgagee to maintain action for damages. A mortgagor, entitled to the possession of mortgaged property, rnay maintain an action for its recovery or for damages for its conversion, even against the mortgagee. (Moore v. Prentiss Tool and Supply Co., 133 N. Y. 144.) Where the mortgagee has not insisted upon the pos- session of the mortgaged property, the mortgagor may maintain an action against a third party for the recovery of possession of the property, though he has defaulted in the payment of the mortgage. (Burns v. Wmchell, 44 Hun, 261, 7 St. Eep. 640; GrifiBn & Curtis on Chattel Mortgages, p. 128.) After default in the payment of the mortgage, the mortgagor has no legal rights in the mortgaged property, and can, therefore, maintain no action at law against the mortgagee; his only remedy is in an action to redeem the mortgage. (Casserly v. WUherhee, 119 N". Y. 522; Darrow v. Wendelstadt, 43 App. Div. 426, 60 N". Y. Supp. 174 ; Griffin & Curtis on Chattel Mortgages, p. 129.) He cannot sue the mortgagee for damages on the ground that the latter has made a wrongful or unfair sale of the property. (Stoddart v. Dennison, 38 How. Pr. 296, 7 Abb. Pr. N". S. 309.) But where there is a surplus arising from the sale of the property, it may be recovered in an action at law. If the mortgagee takes the property before default when he has no right to do so, as where he assumes to take it under the " danger clause " when he does not in good failh deem himself unsafe, or where a demand for the return of the property is necessary before seizure and no demand is made, the mortgagor may recover the property or its value of the mortgagee. Or, if the mortgage is discharged as to certain articles originally covered, the mortgagee will be liable for conversion if he takes the same. (Griffin & Curtis on Chattel Mortgages, p. 130.) In an action before default by the mort- gagor against the mortgagee for the conversion of the property, the dam- ages recoverable are the value of the property less the amount of the debt. But, where the action is against a stranger, the mortgagor can recover the whole value. (Bussell v. Butterfield, 21 Wend. 300.) § 35. When mortgagor deemed in default. The mortgagor is in default if he permits the time appointed for pay- ment to pass without making the required payment. The title of the mortgagee to the mortgaged property then becomes absolute, leaving the CHATTEL MORTGAGES. 177 mortgagor a mere equity of redemption. Where no time is specified in the mortgage for the payment of the debt, it is payable immediately and no demand is necessary before taking possession or foreclosing the mort- gage. (Steams v. Oberle, 47 Misc. 349, 94 N. Y. Supp. 37 ; Griffin & •Curtis on Chattel Mortgages, p. 135.) Or, where the mortgage specifies an impossible time for payment, in legal effect it is the same as though no time is specified, and it is due immediately. (Fuller v. Acher, 1 Hill 473.) Where a mortgage is payable upon demand, the title to the mort- gaged property becomes absolute in the mortgagee upon a demand. [(Hulsen v. Walter ^ 34 How. Pr. 385.) Though a demand may be neces- sary as between the parties to a mortgage payable on demand, it is not a necessary prerequisite to an action to recover the property from one wrongfully taking the same. (Brown v. Cook, 3 E. D. Smith, 123.) A mortgage payable one day after it is made is not payable on demand, and no demand is necessary before the commencement of an action to recover possession of the mortgaged property. (Brochman v. Buell, 16 Daly, 90, 9 ]Sr. Y. Supp. 895.) Where default is made in the payment of one installment of a mort- gage payable in installments, and the mortgage provides that, upon default in one installment, the mortgage debt shall become due, the mortgagee may seize the property or otherwise enforce the mortgage. (Bauman v. Cornez, 15 Daly, 450, 8 N. Y. Supp. 480.) But where the mortgage does not become due upon default in the payment of one installment and the right to enforce the mortgage is not given the mortgagee until the maturity of the entire debt, though the mortgagee might sue to recover the installment, he is not in a position to enforce the default by a seizure of the property or foreclosure of the mortgage merely because the mort- gagor has defaulted in one installment. (Earle v. Qorham Mfg. Co., 2 App. Div. 460, 37 N. Y. Supp. 1037; Abramson v. Potts, 69 Misc. 64, 125 N. Y. Supp. 1012.) If the mortgagor is in default by failure to pay one installment, he cannot redeem without a tender of the whole debt, though by a tender and acceptance of the unpaid installment the forfeit- [ure is waived and the mortgagor resumes his original status under the mortgage. (Earle v. Gorham Mfg. Co., 2 App. Div. 460, 37 N. Y. Supp. 1037.) A chattel mortgage sometimes contains a clause to the effect that if execution is levied against the mortgaged property or if the mortgagor suffers or permits an attachment to be levied against such property, the mortgage shall thereupon become due and enforceable. Such a clause is valid, and, where an officer levies upon the property under such process, ithe right to the possession of the goods vests in the mortgagee and he 12 ITS CIVIL LAW AND PEACTICE. is entitled thereto as against the officer. {Bryan v. Smith, 13 Daly, 331.) A clause of such nature generally refers to process against the mortgaged chattels, and the mortgage does not become due by a levy upon prop- erty of the mortgagor not covered by the mortgage. (Robertson v. Ongley Electric Co., 146 IST. Y. 20.) A stipulation in a chattel mortgage that, upon the removal or disposi- tion of the mortgaged property without the consent of the mortgagee, the mortgage shall become due and enforceable, is valid, (Russell v. Butter- field, 21 Wend. 300; Griffin & Curtis on Chattel Mortgages, p. 138.) An attachment of the mortgaged property without the connivance of the mortgagor is not a sale or disposal thereof within the meaning of a clause providing that, if the mortgagor sells or in any way disposes of the goods, the mortgagee may take the same and keep them in default in payment. (Carpenter v. Town, Hill & D. Supp. 72.) The time for the payment of the mortgage may be extended by the mortgagee, but an extension to be binding must be based upon a legal consideration. (Repelow v. Walsh, 98 App. Div. 320, 90 N .Y. Supp. 651.) A mere promise to extend the time of payment is not a bar to the foreclosure of the mortgage prior to the expiration of such extended time. The refiling of the mortgage after it has become due does not operate as an extension of time or prevent the mortgagee from insisting upon the forfeiture. (Dane v. Mallory, 16 Barb. 46 ; Fuller v. Acker, 1 Hill, 473.) The mortgagee does not extend the time of payment by retaining the property without selling the same. (Burdich v. McVanner, 2 Denio, 170.) Upon default in payment, the mortgagor forfeits his legal title to the mortgaged chattels. The mortgagee, may, however, waive such forfeit- ure. The mortgagee after default is not obliged to accept a tender of the debt; he may insist upon the forfeiture. But, if he accepts the tender, the forfeiture is waived and the mortgagee's title to the mortgaged prop- erty is extinguished. (West v. Crary, 47 N. Y. 423.) If the mortgage becomes due on account of the failure to pay an installment of the debt, the mortgagee waives the forfeiture if he accepts the installment due, though, to redeem, the mortgagor might be compelled to tender the entire debt. By waiving a forfeiture of this character, the parties are placed in the same position as before the maturity of the installment. (Earle V. Gorham Mfg. Co., 2 App. Div. 460, 37 N. Y, Supp. 1037.) By demanding the payment of a past due installment, the mortgagee waives the forfeiture. (Van Loan v. Willis, 13 Daly, 281.) But a refiling of the mortgage after default is not a waiver. (Dane v. Mallory, 16 Barb. 46 ; Fuller v. Acher, 1 Hill, 473.) CHATTEL MOETGAGES. 179 § 36. Possession of mortgaged property. There is considerable difference in the rights of the mortgagor and of the mortgagee to the possession of the mortgaged property before default has been made by the mortgagor and after such a default has been made. In the absence of a clause in a chattel mortgage which can be construed to allow the mortgagor to retain possession of the mortgaged property, the right to possession follows the legal title, and is, therefore, in the mortgagee. (Parish v. Wheeler, 22 JST. Y. 494; Bich v. Milh^ 20 Barb. 616.) But as a practical proposition, a mortgage is seldom drawn which does not contain some provision authorizing the mortgagor to retain pos- session. Thus, a " danger clause," permitting the mortgagee to take pos- session at any time he deems himself unsafe, by implication, gives the mortgagor the right of possession until default or until the mortgagee exercises his right under such clause. (Hall v. Sampson, 35 N. T. 274.) But upon default of the mortgagor, the mortgagee, by virtue of his absolute title to the mortgaged chattels, is entitled to the possession thereof. (Judson V. Boston, 58 JST. Y. 664; Bragelmwn v. Dane, 69 N. Y. 19; Longennecher v. Kuhn, 126 App. Div. 254, 110 N. Y. Supp. 517; GriflBn & Curtis on Chattel Mortgages, p. 141.) He may take the prop- erty from the mortgagor or any one claiming under the mortgagor whose rights are not superior. (Porter v, Parmley, 43' How. Pr. 445, 13 Abb. Pr. N. S. 104, reversed on other grounds 52 N. Y. 185.) The right of possession is not affected by the fact that the mortgagor has moved from his residence and stored the goods on the premises of a third person, as the mortgagee is entitled to the goods as much in one place as another. (Keefer v. Greene, 16 E". Y. Supp. 498.) If the right of the mortgagor to the possession of the property expires and the right of the mortgagee thereto commences while the goods are the subject of a levy under execu- tion or attachment against the mortgagor, the mortgagee is entitled to claim the property and the officer is guilty of conversion if he withholds the same; the mortgagee is under no obligation to pay or tender the costs and expenses of the process. (Fairbanks v. Bloomfield, 5 Diier,, 434.) The mortgagor may waive his right to the possession of the property or may waive a condition precedent to the right of the mortgagee to acquire possession thereof. (Nichols v. Mase, 94 IST. Y. 160.) The mortgagee may also waive his right to the possession of the property. The latter's right, however, is not waived by the acceptance of payments on the mort- gage at other times than the days specified in the mortgage for that purpose. (Kraus v. Blach, 56 Misc. 641, 107 IST. Y. Supp. 609.) 180 CIVIL LAW AND PEACTICE. § 37. Rights of mortgagee under danger clause. It is a common practice to insert in a chattel mortgage a clause authoriz- ing the mortgagee, at any time he deems himself unsafe, to take possession of the property and sell the same previous to the time mentioned for the payment of the debt. Such a provision is known as a " danger clause." It is a valid provision and authorizes the mortgagee to take the prop- erty at any time he in good faith deems himself unsafe. (Smith v. Post, 1 Hun, 516, 3 T. & C. 647; Griffin and Curtis on Chattel Mortgages, p. 142.) If he is justified in taking the property, he acquires an absolute title thereto the same as though the debt were due and the mortgagor in default. But the mortgagee must act in good faith; he cannot take the property maliciously or merely because he wanted or needed the money. (Darling v. Hunt, 46 App. Div. 631, 61 IST. Y. Supp. 278.) If the mort- gagee takes the property under such a clause, it is presumed that he in good faith deemed himself unsafe. (Smith v. Post, 1 Hun, 516, 3 T. & C. 647.) And it is incumbent upon the mortgagor or person assailing the mortgagee's rights, to show the want of good faith. (Stage v. Van Leuvan, 77 App. Div. 646, 78 itT. Y. Supp. 960.) If there is any evidence upon the question it becomes a question of fact for the jury to determine whether the mortgagee did in reality feel insecure, or whether it was a mere pretense for the purpose of enforcing payment of the debt before maturity. (Eawver v. Bell, 19 IST. Y. Supp. 612, affd., 141 N. Y. 140.) § 38. Retention by mortgagee of property without foreclosure. If the mortgagor fails to pay the debt at the maturity of the mortgage, the absolute legal title to the mortgaged property vests in the mortgagee. He may sell the property in foreclosure of the mortgage and thus extinguish the mortgagor's equity of redemption. But he may retain possession of the property and no legal right of the mortgagor is thereby infringed, though the mortgagor may redeem witbin a reasonable time. (Coe V. Cassidy, 72 IST. Y. 133; Griffin & Curtis on Chattel Mortgages,, p. 144.) As the mortgagor has the right of redemption, the mortgagee cannot deal with the property quite as his own. While the mortgagee keeps the property, he is bound to take care of it. He cannot, without incurring responsibility, negligently suffer it to be stolen or damaged. Any reasonable expense to which he is subjected in the care of the prop- erty is a proper charge against it. (Coe v. Cassidy, 72 N. Y. 133'.) Where the mortgagee after default retains the mortgaged property without foreclosing the mortgagor's equity of redemption, if the prop- erty is equal in value to the amount of the debt, the debt is deemed satisfied. (Sherman v. Slayhach, 58 Hun, 255, 12 "N. Y, Supp. 291; CHATTEL MOETGAGES. 181 Levy V. Reich, 78 Misc. 413, 138 JST. Y. Supp. 419.) If the property is worth more than the goods, the mortgagor has no legal remedy to recover the difPerence; his only remedy is to redeem in equity. (Olcott V. Tioga B. R. Co., 40 Barb. 179, affd., 27 N. Y. 546.) The value of the property at the time it is taken by the mortgagee, not the value at a subsequent time, controls in determining whether the debt is satisfied. (Pulver V. Richardson, 3 T. & C. 436.) Where the property is taken by the mortgagee, not for the purpose of foreclosure, but for the purpose of protecting the property and the mortgagor's security, the debt is not necessarily discharged. (Beadteston S Woerz v. Morton, 16 Misc. 72, 37 N. Y. Supp. 666.) If goods subject to a chattel mortgage are abandoned by the mortgagor, the mortgagee may retake possession, sue for the amount unpaid, hold the goods as security for his claim, and sell them under his execution if it be not otherwise satisfied. {Blooming dale V. Gaudio, 85 Misc. 389, 147 N". Y. Supp. 432.) Thus, where a land- lord, holding a chattel mortgage upon his tenant's household furniture, takes possession thereof on its abandonment by the tenant and cares for it, the debt is not deemed satisfied thereby. (Lathers v. Hunt, 16 Daly, 349, 10 N. Y. Supp. 529.) Where the mortgagee's right to the goods is disputed by a third person and the mortgagee does not, therefore, sell the property before the determination of the rights of the parties, the debt is not presumed to have been paid by the retention of the property. (Third National Bank v. Shields, 55 Hun, 274, 8 IST. Y. Supp. 938.) § 39. Action by mortgagee for possession of property. Upon default, or at any other time when entitled to the possession thereof, the mortgagee may maintain an action in replevin to recover the .possession of the mortgaged chattels. (Fidelity Loan Assoc, v. Connolly, 92 N. Y. Supp. 252.) The procedure in justice's court in such actions is outlined in sections 2919-2933 of the Code of Civil Procedure. The. necessary parties defendant in an action of replevin by a mortgagee are the persons having possession of the property. Where the property is in the possession of a warehouseman, the mortgagor need not be joined. (Hazlett v. Hamilton Storage and Warehouse Co., 47 Misc. 660, 94 N. Y. Supp. 580.) A demand for the mortgaged property is not generally necessary before the commencement of an action for its recovery. (Brochman v. Buell, 16 Daly, 90, 9 N. Y. Supp. 895.) Even though the mortgage requires a demand of the mortgagor before the mortgagee can recover the possession thereof from the mortgagor, as against a third person vsTong- fully obtaining the property from the mortgagor, a demand is not neces- sary. (Brown v. CooTe, 3 E. D. Smith, 123.) 182 CIVIL LAW AND PEACTICE. § 40. Action by mortgagee to recover debt. Even though the mortgagee has no effectual remedy upon the mortgage, he may bring an action against the debtor to recover the debt secured thereby. The debt is not merged in the mortgage. (Lathers v. Hunt, 16 Daly, 135, 9 IST. Y. Supp. 494.) Upon the recovery of a judgment for the debt, an execution may generally be levied against the property described in the mortgage, and the mortgagee will thus collect his debt. (Emerson V. Knapp, 129 App. Div. 827, 114 IsT. Y. Supp. 794.) But he cannot in all cases recover the debt of the mortgagor, for the debt may be owing by one person while the mortgage be given by another. (Blake v. Corhett, 120 N. Y. 327.) The parties by their contract may confine the remedy of the mortgagee to the mortgage. (Matthews v. Sheehan, 69 N. Y. 585.) Where the mortgagor of chattels sells the same to a third person who assumes and agrees to pay the debt as a part of the purchase price, the mortgagee may recover the debt of such vendee. (Briggs v. Oliver, 68 JS". Y. 236 ; Bernheimer v. Blwmenthal, 42 App. Div. 193, 58 IST. Y. Supp. 1003.) An action cannot be maintained upon the mortgage to recover the debt, unless the instrument contains an agreement to pay the same or a distinct acknowledgment thereof; where the instrument contains no such recognition of liability, the action must be brought upon the debt. (Culver V. Sisson, 3 IST. Y. 264.) § 41. Action by mortgagee for conversion of chattels. Where the mortgagee is entitled to the possession of the mortgaged property, any person withholding or taking possession thereof from the mortgagee is guilty of conversion and liable accordingly. (Malcom v. O'Reilly, 89 IST. Y. 156 ; Smith v. Smalley, 19 App. Div. 519, 46 N. Y. Supp. 277; Griffin & Curtis on Chattel Mortgages, p. 148.) But the mortgagee cannot recover without an existing right to the immediate actual ' possession of the property. The assignee of a mortgage may likewise recover for the conversion of the property. (Wolff v. Bausch, 22 Misc. 108, 48 IST. Y. Supp. 716.) If a purchaser of the property from the mortgagor retains or disposes of the property without the consent of the mortgagee at a time when the latter is entitled to the possession thereon, he is liable to the mort- gagee for conversion. (Sheldon v. McFee, 216 IST. Y. 618.) But if such purchaser transfers the goods before the mortgagee becomes entitled to the possession thereof, the mortgagee has no action of conversion against him ; the remedy of the mortgagee is against the person having the prop- CHATTEL MORTGAGES. 183 erty while the mortgagee is entitled thereto. (^Hathaway v. Brayman, 42 N. Y. 322 ; Martin v. LewinsU, 54 App. Div. 573, 66 N. Y. Supp. 995.) Where a person assists a mortgagor in wrongfully disposing of the mortgaged property, though he acts as an innocent tool, he is liable to the mortgagee for the conversion of the property. (Spraights v. Hawley, 39 N. Y. 441.) A sheriff or constable who levies upon and sells the mortgaged property under process against the mortgagor or some third party is liable to the mortgagee for a conversion of the property. (Butler 1. Miller, 1 is^. Y. 496; Hall v. Sampson, 35 N. Y. 274.) Where, how- ever, the mortgagor has a leviable interest, a sale of the property in general terms without recognition of the mortgagee's rights does nob necessarily render the officer or parties promoting the sale trespassers or guilty of conversion. (Hull v. Oamley, 11 N". Y. 501 ; Goulet v. Asseler, 22 IS". Y. 225 ; Manning v. Monaghan, 28 IST. Y. 585 ; Griffin and Curtis on Chattel Mortgages, p. 150) But, even in such a case, if the sale is so conducted that the property is sold in parcels to different purchasers, the mortgagee may recover the damages caused by the unlawful dispersal of his property. (Tifft v. Barton, 4 Denio, 171.) Where the mortgagor has converted the mortgaged property, no demand is necessary for the maintenance of an action of conversion by the mort- gagee. (Woodhridge v. Nelson, 6 Week. Dig. 248.) Nor is a demand necessary in an action against a person wrongfully taking the property from the mortgagor. Thus, where an officer with process against the mortgagor levies upon the property, when the mortgagor has no leviablq interest therein, no demand is necessary. (Smith v. Smalley, 19 App. Div. 519, 46 K Y. Supp. 277.) In an action of conversion by a mortgagee against a stranger who shows no right or title to the property, he may recover the full value of the mortgaged property though it exceeds the amount of the debt ; the difference is the subject of an accounting between the parties. (Parish V. Wheeler, 22 K Y. 494 ; Bigelow v. Goble, 9 App. Div. 391, 41 N. Y. Supp. 299.) But in an action against the mortgagor or person succeed- ing to his rights, not more than the amount of the debt is recoverable. (Davis V. Bliss, 187 N". Y. 77.) In an action by a second mortgagee against a prior mortgagee claiming under a usurious mortgage to recover for conversion of the property, the plaintiff can recover only the amount remaining due upon his mortgage. (Chadwich v. Lamb, 29 Barb, 519.) Where the levy is upon chattels not owned by the judgment debtor, the mortgagee thereof can recover the full value. (Bigelow v. Goble, 9 App. Div. 391, 41 N. Y. Supp. 299.) 184 CIVIL LAW AND PRACTICE. § 42. Foreclosure by sale of chattels. After default the mortgagor still has an equity of redemption in the mortgaged chattels. This right is lost by a foreclosure of the mortgage either by action or by a hona fide sale under the power of sale. (Coe v, Cassidy, 72 N. T. 133.) The remedy of sale under the power is gen- erally more speedy and effectual than by action. (Briggs v. Oliver, 68 N. Y. 336.) Under a power of sale the mortgagee may sell the mort- gaged chattels at public or private sale, and, if the sale is hona fide, the . mortgagor's equity will be cut off. (Coe v. Cassidy, 72 W. Y. 133; Lathers v. Hunt, 16 Daly, 135, 9 E". Y. Supp. 494.) But where the mortgage provides in terms for a public sale, a private sale will not cut off the equity of redemption. (Randall v. Dunbar, 14 Week. Dig. 332.) Unless the mortgage expressly requires notice of the sale to be given to the mortgagor, the sale may be without such notice. (Chamberlain v. Martin, 43 Barb. 607.) A sale under the power of sale, to cut off the equity of redemption or to authorize the mortgagee to sue for a deficiency must be in good faith. (Coe V. Cassidy, 72 N. Y. 133.) If a sale under the power of sale is conducted fairly and in good faith, the mortgagee may purchase the property and hold the same free from the equity of redemption. (Olcott V. Tioga B. Co., 27 N. Y. 546 ; French v. Powers, 120 IST. Y. 128.) But a purchase by the mortgagee at an inadequate price may, in some cases, afford grounds for holding that the mortgagee has not fulfilled the require- ment of good faith. (Sherman v. Slayback, 58 Hun, 255, 12 N. Y, Supp. 291.) The mortgagee can sell only enough of the property to satisfy his debt. If he continues to sell the property after he has realized enough to satisfy the debt and costs, he becomes a trespasser and is liable in conversion to the mortgagor or the person succeeding to the mortgagor's title. (O'Rourhe v. Haddock, 114 N. Y. 541.) When enough of the property is sold to satisfy the debt, the power of sale becomes, ipso facto, void and the mortgagee becomes a trustee of the mortgagor as to the balance of the property. (Charter v. Stevens, 3 Denio, 33.) The mortgagor may, however, elect to treat the entire sale as valid and to regard the excessive (Sum received as surplus money in the hands of the mortgagee. (Daven- port V. McOhesney, 86 'N. Y. 242.) Where the mortgagee sells the mortgaged property for more than enough to pay the mortgage debt, the mortgagor or his successor is entitled to the surplus and may maintain an action for its recovery. (Davenport v. McChesney, 86 N. Y. 242; Griffin & Curtis on Chattel Mortgages, p. 156.) A creditor of the mortgagor may reach such surplus CHATTEL MOETGAGES. 185 fund and cause it to be applied on his claim. (Hardt v. Deutsch, 30 App. Div. 589, 52 N. Y. Supp. 335.) A warranty of title is not implied where it appears that the seller does not intend to assert title of ownership in himself, but simply to transfer such interest or title as he has. {Cohn v. Ammidmun, 120 IST. Y. 398.) A public sale of property by virtue of a chattel mortgage is notice that the mortgagee is not selling his own title to the property, but that which he has acquired through the mortgage, and no warranty of title to the prop- erty so sold is implied against the mortgagee. {Colin v. Ammidown, 130 1^. Y. 398.) § 43. Rights of creditors. Outside of the right of a creditor of a mortgagor to attack the mort- gage because the mortgagee has failed to file or refile the same, as is explained in preceding sections, he has certain other rights with reference to the mortgaged property. For example, a creditor of the mortgagee may levy upon the property, for the mortgagee is considered to have legal title thereto, and this is true although the property remains in the possession of the mortgagor. {Saratoga Holding Co. v. Waslihum, 70 Misc. 110, 127 ISr. Y. Supp. 1016 ; Griffin & Curtis on Chattel Mortgages, p 163'.) But the mere equity of redemption which the mortgagor has, is not the subject of levy and sale, and where such is the only interest of the mortgagor, the property cannot be levied upon under an execution against him. {Galen V. Brown, 22 IST. Y. 37; Craft v. Brandow, 61 App. Div. 247, 70 'E. Y. Supp. 364; Fishel v, Hamilton Storage Warehouse Co., 82 Misc, 532, 86 "E. Y. Supp. 196.) Thus, where the mortgagor is in default, and his only interest in the property is an equity of redemption, it cannot be levied upon under process against him. {Porter v. Parmley, 52 !N". Y. 185 ; Manchester v. Tibhetts, 121 N. Y. 219; Leadhetter v. Leadietter, 125 IS". Y. 290; Griffin & Curtis on Chattel Mortgages, p. 164.) And this is so though the mortgagor continues to retain possession of the property after the default. {Champlin v. Johnson, 39 Barb. 606.) And where the mortgagee has possession of the property, the mortgagor has no leviable interest therein, though the mortgage debt is not yet due. {National Cash Register Co. v. Coleman, 85 Hun, 125, 32 N". Y. Supp. 593.) But before default, if the mortgagor is entitled to possession of the property for a definite period, he has an interest therein which can be reached by execution, and the property can be sold subject to the mortgage. (Mattison v. Baucus, 1 'N. Y. 295; Hull v. Carnley, 11 K Y. 501; Hamill v, Oillespie, 48 iN". Y. 556 ; Griffin & Curtis on Chattel Mortgages, p. 165.) Where the mortgagor has a leviable interest at the time of a 186 CIVIL LAW AND PEACTICE. levy on the property, the officer making the levy is not liable for con- version where he does not sell or withhold the property after the leviable interest terminates. (Randall v. Cooh, 17 Wend. 53.) But, if the officer detains it after the termination of the leviable interest, he becomes liable to the mortgagee. (Fairbanks v. Bloomfield, 5 Duer, 434.) If the goods are exempt from execution, a creditor of the mortgagor has no claim thereon, and is liable if he causes a sale thereof under his execution. (Livor V. Orser, 5 Duer, 501.) § 44. Rights of lienors on mortgaged property. The lien of an artisan or mechanic for work done upon a chattel encumbered by a mortgage is generally superior to the mortgage. (Scott V. Delahunt, 65 IST. Y. 128.) The keeper of a hotel, apartment hotel, inn, boarding house or lodging house, except an emigrant lodging house, is given by section 181 of the Lien Law, a lien upon the baggage and other property brought upon the premises by a guest, boarder, or lodger, for the proper charges due from him, etc. The lien mentioned by this statute is superior to a chattel mortgage upon the property brought upon the premises unless the lienor had actual notice that the guest was not the owner legally in possession thereof. (Matthews v. Victor Hotel Co., 132 IST. Y. Supp. 375.) The constructive notice created by the proper filing of the chattel mortgage does not give the mortgage priority, and the lienor is entitled to the property as against the mortgagee, though the mortgage was due before the mortgagor brought the property upon the lienor's premises. (Matthews v. Victor Hotel Company, 132 IT. Y. Supp. 375.) Section 183 of the Lien Law gives a person keeping a livery stable, or boarding stable for animals, or pasturing or boarding one or more animals, etc., a lien upon the animals and wagons, etc., for the sum due for the care of the animal or for the storage of the vehicle. The lien of a bailee under this section is superior to an earlier chattel mortgage upon the same property. (Corning v. Achley, 4 IST. Y. Supp. 255, 21 St. Eep. 703 ; Peter Barrett Mfg. Co. v. Van Bonk, 149 App. Div. 194; Griffin & Curtis on Chattel Mortgages, p. 44.) Section 184 of the Lien Law gives a person keeping a garage or place for the storage, maintenance, keeping or repair of motor vehicles, etc., a lien upon motor vehicles so stored for the sum due therefor. A garage keeper loses his lien under this statute as against the mortgagee if he voluntarily delivers the property to the mortgagor, though he has an agree- ment with the mortgagor that he shall not lose his lien by such delivery. (Thourot V. Delahaye Import Co., 69 Misc. 351, 125 IT. Y. Supp. 827.) CHATTEL MORTGAGES. 18Y § 45. Rights of subsequent mortgagee. A second mortgage is generally a valid security, and after default by the mortgagor, entitles such mortgagee to the possession of the property as against everyone except the first mortgagee. {Moore v. Prentiss Tool and Supply Co., 133 E". Y. 144 ; GriflSn & Curtis on Chattel Mortgages, p. 173.) As against a third mortgagee the second is deemed a first mort- gagee. (Kimball v. Farmers' and Mechanics' Bank, 138 N". Y. 500.) He can maintain an action for the conversion of the property as against anyone, ■except possibly the first mortgagee. (Moore v. Prentiss Tool and Supply, Co., 133 IS". Y. 144; Columbia Bank v. American Surety Co., 84 App. Div. 487, 82 N. Y. Supp. 1054, affd., 178 N. Y. 628 : Schwab Mfg. v. Aizenman, 106 App. Div. 478, 94 'E. Y. Supp. 729; Griffin & Curtis on Chattel Mortgages, p. 173.) A second mortgagee may seize and sell mortgaged property, subject to the first mortgage, but may be guilty of conversion if the sale is made in violation of the latter's rights. (Kleinberger v. Brown, 26 J. & S. 4, 8 N". Y. Supp. 866.) Where a mortgagee, whose right to possession has become perfected under the mortgage, obtains possession in a lawful manner, and sells the property generally without taking any notice of a prior lien or mortgage, he is not liable in trespass or trover at the suit of the mortgagor or prior lienor or mortgagee. (Hale v. Omaha Nat. Bank, 7 J. & S. 207, affd., 64 IST. Y. 550.) Where a mortgagee takes the property from the mortgagor and places it in the custody of another mortgagee upon his promise to return it upon demand, the latter, when sued for the property, cannot claim that his mortgage gives him a prior lien. (Jones v. Howell, 3 Eob. 438.) § 46. Assignment of mortgage. A mortgage with the debt secured thereby is capable of an assignment and the assignment carries with it all the rights of the mortgagee to enforce the mortgage. An assignment after default conveys to the assignee a legal title to the mortgaged property. (Campbell v. Birch, 60 N". Y. 214.) If absolute in its terms it cannot be shown by parol that it was given to discharge the mortgage. (Tyler v. Taylor, 8 Barb. 585; Griffin & Curtis on Chattel Mortgages, p. 176.) An assignment of a chattel mortgage need not be filed. (Baxter v. Gilbert, 12 Abb. Pr. 97.) Where a mortgage for the benefit of two persons whose debts are secured thereby, is assigned to a third person who takes the property into his possession, they may compel such third person to account for the prop- erty. (Weil v. Levy, 80 Hun, 382, 30 IST. Y. Supp. 127.) A chattel mortgage is but an accessory or incident to the debt. An 188 CIVIL LAW AND PEACTICE. assignment of the debt carries with it the mortgage and the right to enforce the same; if the assignment of the debt is after default it transfers the legal title to the mortgaged property. And a transfer of a portion of the debt secured by the mortgage passes to the transferee an interest in the mortgage without any formal assignment thereof. (Chandless v. Glohe Storage and Carpet Cleaning Co., 49 Misc. 562, 98 ]Sr. Y. Supp. 511.) The mortgage cannot exist independently of the debt. If an arrangement is made which separates the two, as a special agreement that the mortgage shall not accompany the debt, the mortgage is, ipso facto, extinguished. (Langdon v. Buel, 9 Wend. 80.) But where a mortgage and a note represent the same debt, and the mortgage is assigned without the transfer of a note, the retention of the latter does not con- clusively establish that it was not the intention of the assignor to transfer the debt with the mortgage. The mortgage is an incident to the debt, not to the note. (Campbell v. Birch, 60 N. Y, 214.) An assignment of a chattel mortgage is subject not only to the equities between the parties but also to the equities in favor of third persons against the assignor. (David Stevenson Brewing Co. v. Iba, 155 N". Y. 224; Griffin & Curtis on Chattel Mortgages, p. 177.) But a bona fide purchaser, before maturity, of a negotiable promissory note, secured by a chattel mortgage, takes the mortgage as he takes the note, free from any equities which existed in favor of third persons while it was held by the mortgagee. (Gould v. Marsh, 1 Hun, 566, 4 T. & C. 128; Griffin & Curtis on Chattel Mortgages, p. 178.) § 47. Discharge of mortgage. A chattel mortgage is discharged in several ways. One way is a pay- ment of the debt secured by the mortgage. Where there are successive mortgages on the same property, and the debtor or anyone standing in his place with notice of a subsequent mortgage pays off a prior, it is extinguished as against the second mortgage and as against any one subsequently deriving title under the owner of the equity of redemption. (Thompson v. Van Vechten, 27 N. Y. 568.) But in some cases, where the ovpner of the equity of redemption has paid off a mortgage on the property, equity will treat the incumbrance as alive and the person who has paid it as succeeding to the rights of the mortgagee ; but this will be done only when it will uphold the innocent purpose of the person so pay- ing and will be injurious to no one. (Doolittle v. Naylor, 2 Bosw. 206.) A mortgage is not deemed merged or extinguished because the mort- gagee takes other security for the same indebtedness, unless there is an express agreement that such shall be the effect of the subsequent CHATTEL MOETGAGES. 189 security. (Miller v. Lockwood, 32 N. Y. 293 ; Griffin & Curtis on Chattel Mortgages, p. 180.) Thus, it is held that a mortgage is not discharged bji a subsequent mortgage upon the same property to secure the same indebt- edness; or by a note for the debt, or a judgment recovered thereupon. (Griffin & Curtis on Chattel Mortgages, p. 180.) A transfer of the mortgaged property by the mortgagor to the mort- gagee does not discharge the mortgage where, the mortgagee has previously assigned the mortgage to a third person. {Baxter v. Gilbert, 12 Abb. Pr. 97.) And where the mortgagor, after giving a bill of sale of the property to the mortgagee, gives a second mortgage on the property which is accepted by the same mortgagee, even if the bill of sale could be con- sidered as discharging the first mortgage, the second may be deemed a recognition of the prior and reinstates it and renews it as it previously existed. {Walker v. Henry, 85 IST. Y. 130.) An assignment of the mortgage by the mortgagee to the mortgagor dis- charges the mortgage. {Phoenix Mills v. Miller, 4 St. Rep. 787.) The purchase by the executrix of a deceased partner of a mortgage against the firm is not a payment thereof, and the surviving partner cannot enjoin a suit to foreclose the same. {Lowenstein v. Lowenstein, 114 App. Div, 65, 99 N, Y. Supp. 730.) And where one bids off, at a sheriff's sale on execution, property of the judgment debtor, embraced in a chattel mortgage previously executed by suc-i debtor, the sale being subject to the mortgage, and subsequently purchases and takes an assignment of the mortgage, the transaction will not operate as a payment or satisfaction of the mortgage. {Brown v. Rich, 40 Barb. 28.) A tender of the amount due on a real estate mortgage discharges the lien of the mortgage. But, in the case of a chattel mortgage, there is, strictly speaking, no lien, and the property can be held free from the mortgage only by payment or by keeping the tender good. {Noyes v. Wyckoff, 30 Hun, 466, affd., 114 IST. Y. 204.) Upon default, the absolute legal title to the mortgaged chattels passes to the mortgagee. A tender of the payment of the debt does not reinvest the mortgagor with title to the property. {Campbell v. Birch, 60 N. Y. 214 ; Griffin & Curtis on Chattel Mortgages, p. 183.) The mortgagee may refuse the tender and then the only remedy of the mortgagor is a suit in equity to redeem the mortgage. He has no remedy at law. But if the mortgagee accepts the tender he waives the forfeiture, and the title to the property revests in the mortgagor. {West v. Crary, 47 IST. Y. 423.) A release of property from the lien of a chattel mortgage, though given without consideration, is not void. It is the same as a voluntary and executed gift, and a delivery of the mortgage, where it covers property 190 CIVIL LAW AND PKAOTICE. other than that released, it not necessary to consummate the gift, a delivery of the release being all that is required, {Kennedy v. Sirohel, 77 Hun, 96, 28 N. Y. Supp. 452.) Section 238 of the Lien Law provides for the discharge of chattel mort- gages as follows : " Upon the payment or satisfaction of a chattel mort- gage, the mortgagee, his assignee or legal representative, upon the request of the mortgagor or of any person interested in the mortgaged property, must sign and acknowledge a certificate setting forth such payment or satisfaction. The officer with whom the mortgage, or a copy thereof, is filed, must, on receipt of such certificate, file the same in his office, and write the word ' discharged ' in the book where the mortgage is entered, opposite the entry thereof, and the mortgage is thereby discharged." MOTOE VEHICLES. 191 CHAPTER X. MOTOR VEHICLES. Section 1. Right of automobilist to use public highways. 2. Care to be exercised by driver of motor vehicle. 3. Competency of driver of motor vehicle. 4. Speed of machine. 5. Control of machine. 6. Warning of approach. 7. Lookout for other travelers. 8. Liability of owner for negligence of chauffeur. 9. Violation of law. 10. Contributory negligence of person injured. 11. The Motor Vehicle Law. § 1. Right of automobilist to use public highways. The primary purpose of streets and highways is that of travel, either on foot by a pedestrian, or in a vehicle propelled by animal or other power. (Huddy on Automobiles, 5th Ed., p. 47.) The driver of a motor vehicle has an equal right to use the public highways in common with foot travelers and those driving horses. (Huddy on Automobiles, 5th Ed., p. 51 ; Towner V. Brooklyn Heights B. Co., 44 App. Div. 628, 60 IST. Y. Supp. 289 ; Clarlc v. Woop, 159 App. Div. 437, 144 IST. Y. Supp. 595 ; EUing Brewing Co. V. Linch, 80 Misc. 517, 141 IST. Y. Supp. 480.) The auto driver must use due care to avoid injury to other persons, and other travelers are bound to exercise due care to avoid an injury to the automobilist or his machine. § 2. Care to be exercised by driver of motor vehicle. The driver of a motor vehicle must obey all statutes and ordinances regulating the conduct of such a driver, and in addition must exercise reasonable care to avoid injury to other persons using the public highways. {Knight v. Lanier, 69 App. Div. 454, 74 IST. Y. Supp. 999 ; Murphy v. Wait, 102 App. Div. 121, 92 K Y. Supp. 253'; Huddy on Automobiles, 5th Ed., p. 333.) This ordinarily means such care as an ordinarily prudent person would exercise under the same circumstances. What amounts to reasonable care depends upon the surrounding circumstances. Precautions which constitute reasonable care on a rural highway, would constitute gross negligence on a city street. (Huddy on Automobiles, 5th Ed., p. 339.) But the driver of a motor vehicle does not insure other travelers against accident, and he is liable for injury sustained by another 192 CIVIL LAW AND PKACTICE. traveler only in case negligence is shown. (Cantanno v. James A. Steven- son Co., 172 App. Div. 252, 158 K". Y. Supp. 335 ; Seaman v. Mott, 110 'N. Y. Supp. 1040 ; Huddy on Automobiles, 5tli Ed., p. 346.) § 3. Competency of driver of motor vehicle. One of the obligations imposed on the driver of an automobile is that he shall have reasonable experience and skill in the management of auto- mobiles and that he be physically capable of running the machine. (Huddy on Automobiles, 5th Ed., p. 354). And when one employs another to run a motor vehicle, he should exercise reasonable care in selecting an employee with the necessary qualifications. (Huddy on Automobiles, 5th Ed., p. 355.) One should not run a motor vehicle when he is intoxicated. When he is in such condition, the law requires of him the same precautions as though he were sober. (Huddy on Automobiles, 5th Ed., p. 357.) And the owner of a machine must not permit its operation by one under the age of 18 years. (Highway Law, § 282. See C. B. & G. Consolidated Laws.) An owner of an automobile who permits his son under 18 years of age to operate it, may be liable for the son's conduct in the operation of the machine. (SchuUz v. Morrison, 91 Misc. 248, 154 JST. Y. Supp. 257.) § 4. Speed of machine. The Highway Law, section 287, requires the driver of a motor vehicle to operate the same at a rate of speed so as not to endanger the property of another or the life and limb of any person; and further provides that a speed in excess of thirty miles an hour for a distance of one-fourth of a mile shall be presumptive evidence of driving at a rate of speed which is not careful and prudent. The statute gives one who was traveling at a rate exceeding thirty miles an hour an opportunity of showing that his speed was reasonable under the circumstances. (People v. Mellen, 104 Misc. 355 ; Huddy on Automobiles, 5th Ed., p. 393.) But, outside of any statu- tory provisions, it is the duty of the operator to drive at a speed which is reasonable under the circumstances ; and, if an unreasonable speed causes injury to the person or property of another, he may be liable for ensuing damages. {De Carvalho v. Brunner, 223 IST. Y. 284; Bohringer v. Camp- hell, 154 App. Div. 879, 137 N. Y. Supp. 241 ; Fittin v. Sumner, 176 App. Div. 617, 163 'N. Y. Supp. 443 ; Huddy on Automobiles, 5th Ed., p. 374.) What constitutes a reasonable rate of speed is generally a ques- tion for the jury. (Huddy on Automobiles, 5th Ed,, p. 397.) At turns and street intersections the speed should be slower than at places where less danger of injury is to be expected. And when passing street cars, the driver of the machine should either stop or slacken his speed so that injury MOTOK VEHICLES. 193 to persons getting on and off the car may be avoided. (Huddy on Auto- mobiles, 5 th Ed., p. 380.) § 5. Control of machine. The driver of a motor vehicle must keep the same under reasonable control at all times. (Thies v. Thomas, 77 N. Y. Supp. 276 ; Huddy on Automobiles, 5th Ed., p. 398.) When proceeding along the wrong side of the highway, greater control is required of the driver than when he is pro- ceeding in accord with the law of the road. And when driving at night, the control of the machine should be such that he can avoid injury to persons or property in the street within the scope of his lights. That is, he should drive so that when the lights disclose an obstruction in the road, he can stop the machine and avoid injury either to himself or another. (Huddy on Automobiles, 5th Ed., p. 400.) § 6. Warning of approach. The Highway Law, section 286, requires that every motor vehicle shall be provided with a siuitable and adequate horn or other device for signaling. The statute contemplates and the law requires that the driver of a motor vehicle shall give warning of his approach when such practice is reasonably necessary to avoid injury to other travelers, whether on foot or in other vehicles. Reasonable care requires that at street crossings and other places where travelers may naturally be anticipated, a warning of the approach of a motor vehicle shall be given by its driver. ( Wolcott v. Renault Selling Branch, 223 K Y. 288 ; Gross v. Foster, 134 App. Div. 243, 118 IST. Y. Supp. 889 ; Bohringer v. Camphell, 154 App. Div. 879, 137 N. Y. Supp. 241 ; Huddy on Automobiles, 5th Ed., p. 403.) § 7. Lookout for other travelers. It is the duty of the driver of a motor vehicle to keep a reasonably careful lookout for other travelers so that he may be able to avoid a col- lision. Whether the driver has fulfilled his duty in regard to watching for pedestrians and other persons, is generally a question for the jury. Partic- ularly at street crossings and other places where many pedestrians and other travelers are to be anticipated, considerable care in this respect should be exercised. A charge of negligence may be based on the failure of the driver of a motor vehicle to see another traveler as soon as he should. (Bradley v. Jaeckel, 65 Misc. 509, 119 IST. Y. Supp. 1071; Thies v. Thomas, 77 N. Y. Supp. 276; Huddy on Automobiles, 5th Ed., p. 409.) The general duty of the driver is to look in front of his machine, and he is not under as strict an obligation to look toward the rear to see if a street 13 194 CIVIL LAW A'NB PEACTICE. car or another vehicle is approaching, or to see whether children are climb- ing on the rear of the machine. (Huddy on .Automobiles, 5th Ed., p. 411.) But the driver should look tov^ard the side, particularly at street crossings, to see whether other travelers are approaching at right angles. (Huddy on Automobiles, 5th Ed., p. 412.) § 8. Liability of owner for negligence of chauffeur. The owners of every carriage running or traveling upon any turnpike, road or highway, for the conveyance of passengers, are made by statute jointly and severally liable to the party injured, for all injuries and damages done by any person in the employment of such owners, as a driver, while driving such carriage, whether the act occasioning such injury or damage be willful or negligent or otherwise, in the same manner as such driver would be liable (Highway Law, § 325) and the term "carriage" as so used is declared to include stage coaches, wagons, carts, sleighs, sleds, automobiles, or motor vehicles, and every other carriage or vehicle used for the transportation of persons and goods, or either of them, and bicycles, tricycles, and all other vehicles propelled by manumotive or pedomotive power, or by electricity, steam, gasoline, or other source of energy. (Id., § 326.) In order that the owners shall be liable under section 325 above cited, the owners must be engaged in the carriage of passengers; and an injury must have been done to some third person by a person employed by the owners as driver while driving the " carriage." Except as above stated, the owner of an automobile is not liable for personal injuries caused by the negligent act of a person in his employ, unless such person was at the time of the injury engaged in the business of his employer. (Clarh v. Buchmohile Co., 107 App. Div. 120; Cunning- ham V. Castle, 127 App. Div. 580.) But the fact of ownership of the auto- mobile, and of injury caused by the negligence of a person employed by the owner to operate it, is sufficient to make out a prima facie case that the chauffeur was acting within the scope of his employment at the time. This may be rebutted by evidence showing that the chauffeur, in disobedience of instructions, took the automobile out for his own pleasure or business. {Stewart v. Baruch, 103 App. Div. 577.) In an action for personal injuries caused by the negligent operation of an automobile, the fact that the vehicle was licensed in the name of the defendant is prima facie evidence that he is the owner and that the cus- todian was engaged in the owner's service. (Ferris v. Sterling, 214 IST. Y. 249.) If the operator of an automobile is the owner's son and is under the age of 18 years, the ovmer may be liable if he permits such son to run the MOTOR VEHICLES. 195 car in violation of section 282, subd. 2. (Schultz v. Morrison, 91 Misc. 248, 154 ]Sr. Y. Supp. 257.) But the owner is not generally liable for the negligence of his adult son driving the car, when the owner is not present and the son is engaged in his own individual business. ( Van Blaricon v. Dodgson, 220 N. Y. 111.) The owner of an automobile who has rented it to another for hire to use in the business of the latter is not liable for injuries sustained through its negligent operation. (Braverman v. Hart, 105 N. Y. Supp. 107.) A collision between a pedestrian and a motor car raises no presumption that the owner of the car was negligent. (Seaman v. Mott, 127 App. Div. 18.) § 9. Violation of law. The fact that the driver of an automobile has violated a municipal ordi- nance and that injury results from the violation is generally proof of negligence and renders the driver liable for the injury. But where the injury does not proximately result from the violation of the ordinance, a cause of action cannot be founded thereon. (Lmnehall v. Levy Dairy Co., 173 App. Div. 861, 160 IS". Y. Supp. 114.) And, if the driver of a motor vehicle violates some provision of the statutes governing the operation thereof, he is prima facie liable for any injury resulting therefrom. Thus a violation of subdivision 2 of section 286 of the Highway Law, relative to stopping a car on signal from the driver of a horse, is negligence. ( Union Transfer & Storage Co. v. Westcott Exp. Co., 79 Misc. 408, 140 IsT. Y, Supp. 98.) And where one operates a motor vehicle in an intoxicated condition contrary to the provisions of subdivision 3 of section 290 of the Highway Law, and an innocent person is injured in consequence of such violation, a cause of action arises. {Lincoln Taxicah Co. v. Smith, 88 Misc. 9, 150 ]Sr. Y. Supp. 86.) The circumstance that a vehicle is on the wrong side of the street is generally sufficient to raise a presumption of negligence, but in some cases the use of the wrong side may be justified by circumstances, as where that side of the street is used to avoid a collision. (Clarke v. Woop, 159 App. Div. 437, 144 K Y. Supp. 595.) But negli- gence can rarely be predicted on a performance of a statutory duty. Thus, the fact that the driver of a car sounded his horn when approaching a pedestrian crossing a street, as required by subdivision 2 of section 286, is not negligence, though the sound causes the pedestrian to become excited and to step back in front of the ear, (Wall v. Merlcert, 166 App. Div. 608, 152 K Y. Supp. 293.) A violation of subdivision 2 of section 286, relative to stopping on signal from the driver of a horse, is negligence, and renders the driver of the auto- 196 CIVIL LAW AND PKAOTICE. mobile liable for injuries resulting from his failure to stop. (Union Transfer & Storage Co. v. Westcott Express Co., Y9 Misc. 408, 140 JST, Y. Supp. 98.) The circumstance that a vehicle is on the wrong side of the road is generally sufficient to raise a presumption of negligence, for a violation of the law of the road is competent evidence on the question of due care; but the use of the wrong side of the road may be justified by circumstances, as when one drives to that side to avoid an imminent col- lision. {Clarhe v. ^yoop. 159 App. Div. 437, 144 IST. T. Supp. 695.) § 10. Contributory negligence of the person injured. The duty to exercise care is not confined to those owning or operating motor vehicles, but extends as well to those who claim damages for personal injuries caused by collision with such vehicles. It is the duty of every, person crossing a city street to exercise reasonable care to protect himself from injury by a collision with vehicles traveling thereon ; and if he omits such care, and the amission contributes to an injury received from a passing vehicle, he can maintain no action for the injury. (Hartfield v. Boper, 21 Wend. 615 ; Barker v. Savage, 45 N. Y. 191.) Keasonable care requires in all cases the exercise of a vigilance pro- portioned to the danger encountered. To enter upon a street crossing in a city where the moving vehicles are numerous, and a collision with them likely to produce serious injury, without looking in both directions along the street to ascertain whether any are approaching, and if so, their rate of speed, and how far from the crossing, is not only the omission of reason- able care, but an act of rashness. It is also the duty of a pedestrian to look at street and road crossings when there may be danger from approach- ing vehicles although the travel may be comparatively trifling. {Barker v. Savage, 45 N. Y. 191.) But a corresponding degree of care is required of persons operating motor or other vehicles upon the public streets and highways ; and a person crossing a street is entitled to rely upon the pre- sumption that drivers of vehicles would exercise reasonable care to avoid causing injury to persons in the street; and a failure to anticipate the omission of such care does not render the person crossing guilty of con- tributory negligence. (Caesar v. Fifth Ave. Coach Co., 45 Misc. 331.) A person, whether adult or infant, has the right to assume that a person in the operation of an automobile would exercise care and would respect the rights of pedestrians when rounding the comer of a street. He has the right to assume that the operator of an automobile will slow down and opera:te his machine with care, and that he will take notice that people may be at the crossing or entering thereon. (Buscher v. N. Y. Transportor tion Co., 106 App. Div. 493.) MOTOE VEHICLES. 197 On the same principle the owner of an automobile has the right to assume that a municipality has performed its duty of seeing that its streets are at all times kept in a reasonably safe condition for travel thereon ; for, although a city owes no special duty to those who ride in automobiles, and is not an insurer of travelers using its streets, it is at all times bound to exercise due care to keep the highway reasonably safe and free from dangerous defects. (Corcoran v. City of New YorJc, 188 N. Y. 131.) A passenger in an automobile, who has nothing to do with the manage- ment or control of the machine, is not chargeable with the negligence of the chauffeur. (Ward v. Broohlyn Heights R. R. Co., 119 App. Div 487, 104 N. Y. Supp. 95 ; Noahes v. N. Y. Cent. & H. R. R. R. Co., 121 App. Div. 716 ; Read v. N. Y. Cent. & H. R. R. R. Co., 123 App. Div. 228.) But he is chargeable with his own contributory negligence, if, in approach- ing a railroad track in a locality known to him, in a car driven by another, he fails in his duty to look and listen for approaching trains so as to pre- vent, so far as he may be able, the chauffeur from crossing the track in front of a moving train. (Id.) The age and sex of the passenger may be a matter of consideration in determining whether the failure of the passenger to look and listen when the automobile is nearing a railroad track, and to warn the chauffeur of the approach of a train, is contributory negligence, and the circumstances surrounding may be such as to require the submission of this question to a jury. (Noakes v. N. Y. Cent. & H. R. R. R. Co., 121 IST. Y. 716.) The rule is well settled that a violation of a statute or municipal ordi- nance by those operating a train, car or vehicle does not in itself or of itself constitute negligence. (Knupfle v. KnicherhocJcer Ice Co., 84 N. Y. 488; McCarragher v. Proal, 114 App. Div. 470.) The jury must deter- mine from all the circumstances, including the fact of the violation of the statute or municipal ordinance, whether the party violating it was guilty of contributory negligence. On the other hand, while third persons have a right to assume that statutes and ordinances will be observed, that does not relieve them of exercising care and caution for their own safety, and when they observe, or in the exercise of ordinary care should observe, that the statute or ordinance is not being obeyed, they are not justified in proceed- ing and asserting their rights, and if they do so, they cannot recover any damages they may sustain. ''McCarragher v. Proal, 114 App. Div. 470.) § 11. The Motor Vehicle Lawr. Sections 280-293 of the Highway Law particularly refer to motor vehicles used on the public highways. Its provisions are as follows : 198 CIVIL LAW AND PEAOTICE. THE MOTOR VEHICLE LAW. Article 11 of the Highwat Law. MOTOE Vehicles. Section 280. Application of article. 281. Definitions. 282. Registration of motor vehicles; age of operator; fees; renewals. 282-a. Auto trucks and trailers in excess of twenty-five thousand pounds. 283. Distinctive number; form of number plates. 284. Registration and numiber plates for manufacturers and dealers. 284-a. Limited use of dealers' number plates by vendee. 285. Exemption of nonresident owners. 286. Signaling and other devices; signals; rules of the road. 286-a. Transparently illuminated rear plates. 287. Speed permitted. 288. Local ordinances prohibited. 289. License of operators and chauffeurs; renewals. 2&0. Punishment for violation; procedure. 290-a. Suspension and revocation of a license of operator or chauffeur. 290-b. Certificate by magistrate. 291. Disposition of registration fees ; fines and penalties. 292. Rates of toll on motor vehicles. 293. Acts repealed. § 280. Application of article. Except as herein otherwise expressly provided, this article shall be exclusively con- trolling: 1. Upon the registration, numbering and regulation of motor vehicles', and the licens- ing and the regulation of chauffeurs and operators; 2. On their use of the public highways, and 3. On the accessories used upon motor vehicles and their incidents and the speed of motor vehicles upon the public highways ; 4. On the punishment for the violation of any of the provisions of this article. § 281. Definitions. The term " motor vehicle " as used in this article, except wh«re otherwise expressly provided, shall include all vehicles propelled by any power other than muscular power, except motor bicycles, motor cycles, traction engines, road rollers, fire wagons and engines, police patrol wagons, ambulances and such vehicles as run only upon rails or tracks. The term " local authorities " shall include all officers of counties, cities, boroughs, towns or villages, as well as all boards, committees and ether public officials of such counties, cities, boroughs, towns or villages. The term " chauffeur " ahall mean any person operating or driving a motor vehicle, as an employee or for hire. The term " operator " shall mean any person, other than a chauffeur, who operates a motor vehicle in a county wholly included in a city. The term " state " as used in this article, except where otherwise expressly provided, shall also include the territories and the federal districts of the United States. The term "owner " shall also include any peracn, firm, association or corporation renting a motor vehicle or having the exclusive use thereof, under a lease or otherwise, for a period greater thin thirty days. The term "public highway " shall include any highway, county road, state road, public street, avenue, alley, park, parkway or public place in any county, city, borough, town or village. MOTOE VEHICLES. 199 except any speedway which may have been or may be expressly set apart by law for the exclusive use of horses and light carriages. The term " omnibus," as used in this article, shall include any motor vehicle held and used for the transportation of passengers for hire. § 282. Registration of motor vebicles; age of operator; fees; reneivals. 1. Registration by owners. Every owner of a motor vehicle which shall be operated or driven upon the public highways of this state shall, except as herein otherwise expressly provided, cause to be filed, by mail or otherwise, in the office of the secretary of state a verified application for registration on a blank to be furnished by the secretary of state for that purpose, containing: (a) A brief description of the motor vehicle to be registered, including the name of the manufacturer and factory number of such vehicle, the character and amount of the motive power stated in figures of horse power in accordance with the rating established by the Association of Licensed Auto- mobile Manufacturers; (b) the name, age, residence, including county and business address, of the owner of such motor vehicle; (c) provided that, if such motor vehicle is used or to be used for purposes mentioned in subdivision 6-a of this section, the applicant shall so certify, and also certify as to the weight of the truck and carrying capacity, or in the case of an omnibus the seating capacity, or if the omnibus is to be operated wholly within a municipality pursuant to a franchise other than a franchise express or implied in articles of incorporation, upon certain streets designated in such franchise, those facts shall also be certified, and a certified copy of such franchise furnished to the secretary of state. Every owner of a vehicle, commonly known as a " trailer," for the transportation of goods, wares and merchandise, not propelled by its own power, to be drawn on the public highways by a motor vehicle operated thereon shall also make a/pplication for the registration thereof in the manner herein provided for an application to register a motor vehicle, without the statement relating to motive power; but the application shall set forth the combined weight and carrying capacity of such trailer. 2. Restriction on operation. No person shall operate or drive a motor vehicle who is under eighteen years of age, unless such person is accompanied by a duly licensed chauffeur or the owner of the motor vehicle being operated. No person shall operate or drive a motor vehicle in a county wholly included within a city unless such person is a duly licensed chauffeur or operator whether the owner' of such vehicle or otherwise; provided, however, that a person of the age of eighteen years and upwards who shall reside outside of such county and within the state may so operate or drive, except as a chauffeur, for not to exceed ten days in any year without being so licensed. The secretary of state may, however, in his discretion, grant a written permit to any person desiring to fit himself to so operate or drive a motor vehicle, within such county. Such permit shall not continue for more than ten days from its date, but may be renewed from time to time not to exceed a total of thirty consecutive days. The holder thereof shall not so operate or drive unless at all times under the immediate supervision and control of an operator or chauffeur duly licensed under this article. Such holder, operator or chauffeur shall be liable for any violation of this act or of any local ordinance, rule or regulation permitted thereunder while so operating. The secretary of state may make any suitable regulations concerning the issue and use of such permits and may demand a fee of fifty cents for each such permit or renewal thereof. 3. Registration hook. Upon the receipt of an application for registration of a motor vehicle, as provided in this article, the secretary of state shall file such application in his office at Albany, and in cities of the first class, and such Other places within the state of New York as he may designate and register such motor vehicle or vehicles, with the name residence and business address of the owner, together with the facts stated in such application, in a book or index to be kept for the purpose, under the 200 CIVIL LAW AND PKACTICE. distinctive number assigned to such motor vehicle hy the secretary of state, which book or index shall be open to public inspection during reasonable business hours. 4. Certificate of registration. Upon the filing of such application and the payment of the fee hereinafter provided, the secretary of state shall assign to such motor vehicle a distinctive number and, without expense to the applicant, issue and deliver in such manner as the secretary of state may select to the owner a certificate of registration, in such form as the secretary of state shall prescribe, and two number plates at a place within the state of New York named by the applicant in his application. In the event of the loss, mutilation or destruction of any certificate of registration, provided ior in this article or of any number plate provided for in this section or of any license or badge, the owner of a registered motor vehicle or manufacturer, or dealer, or operator, or chauffeur, as the case may be, may obtain from the secretary of state a duplicate thereof upon filing in the office of the secretary of state an affidavit showing such fact and the payment of a fee of one dollar. It shall be the duty of every owner, operator or chauffeur holding a certificate as such from the secretary of state, to notify the secretary of state in writing of any change of residence of such person within ten days after such change occurs. 5. Times for registration and reregistration. Registration applied for on or before August first, nineteen hundred and seventeen, shall take effect on that date and certifi- cates issued on such application or under any application made prior to January thirty- first, nineteen hundred and eighteen, shall expire on the latter date. The fees for such registration shall be one-half of the annual fees provided herein. Registration there- after shall be renewed annually in the same manner and upon payment of the same annual fee as provided in this section for registration, to take effect on the first day of February, in each year beginning with such date in the year nineteen hundred and eighteen; and the certificates of registration issued thereunder or issued between any such dates shall expire on the succeeding thirty-first day of January. Nothing con- tained in this subdivision shall affect the registration of motor vehicles previously registered in accordance with the provisions of this section, prior to this amendment. 6. Registration fees. The following fees SJhall.be paid to the secretary of state upon the registration or reregistration of a motor vehicle in accordance with the provisions of this article: twenty-five cents per horse power for the rated horse power of such motor vehicle; if the registration or reregistration occur in the calendar year in which such motor vehicle was manufactured or within three yeara after the expiration of such year, the additional fee of forty cents for each one hundred dollars, or major fraction thereof, of the listed price of such motor vehicle fully equipped; if at the time of such registration or reregistration, three years but not more than five years shall have fexipired since the expiration of the calendar year in which such motor vehicle was manufactured, the additional fee of twenty cents for each one hundred dollars, or major fraction thereof, of the listed price of such motor vehicle fully equipped; for each subsequent registration or reregistration of such motor vehicle the additional fee of ten cents for each one hundred dollars, or major fraction thereof of the list price of such motor vehicle fully equipped; provided, however, that the total fees at any time for the registration or reregistration of a six cylinder motor vehicle shall be not less than ten dollars, and for the registration or reregistration of a four cylinder motor vehicle sWall be not less than five dollars; provided further, that if a motor vehicle is originally registered after August first in any year, the register fee for that year shall be one-half of the fee herein provided for ; and further provided that for motor vehicles which are used or to be used for purposes mentioned in subdivision 6-a of this section, the fee for such registration shall be as therein prescribed. The provisions hereof with respect to the payment of registration fees shall not apply to motor vehicles owned or controlled by the state, a city, county, village or town or any of the departments thereof, but in other respects shall be applicable. MOTOR VEHICLES. 201 6-a. Registration fees for auto triwks and omniiuses. The commissioner of highways, superintendent of public worlcs and state engineer and surveyor having heretofore filed in the oflBc© of the secretary of state, in accordance with the former provisions of this subdivision, a schedule of registration fees to be paid upon the registration or reregis- tration, in accordance with the provisions of this article, of motor vehicles used as omnibuses for the transportation of passengers and of motor vehicles constructed or specifially equipped for the transportation of goods, wares and merchandise and used or to be used for such purpose, and commonly known as auto trucks, such schedule, as herein modified, is hereby adopted, and the registration fees for such auto trucks and for omnibuses are hereby established as follows: SCHEDtTLE FOB MOTOE VEHICLES USED AS OMNIBUSES FOR THE TEANSPOETATION OF Passengees. For each such vehicle having a seating capacity for passengers of five passengers or less, the annual fee of fifteen dollars. For each such vehicle having a seating capacity for passengers of not less than six pa/Ssengers, nor more than seven passengers, the annual fee of twenty-four dollars and fifty cents. For each such vehicle having a seating capacity for passengers of not less than eight passengers, nor more than ten passengers, the annual fee of thirty dollars and fifty cents. For each such vehicle having a seating capacity for passengers of not less than eleven passengers, nor more than sixteen passengers, the annual fee of forty-three dollars. For each such vehicle having a seating capacity for passengers of not less than seventeen passengers, nor more than twenty passengers, the annual fee of fifty-two dollars. For each such vehicle having a seating capacity for passengers of not less than twenty-one passengers, nor more than twenty-two passengers, the annual fee of fifty-five dollars. For each such vehicle having a seating capacity for passengers of not less than twenty-three passengers, nor more than twenty-six passengers, the annual fee of sixty- one dollars and fifty cents. For each such vehicle having a seating capacity for passengers of not less than twenty-seven passengers, nor more than thirty passengers, the annual fee of sixty-seven dollars and fifty cents. For each such vehicle having a seating capacity for passengers in excess of thirty passengers, the fee of sixty-seven dollars and fifty cents, and the additional fee of two dollars for each passenger (measured by seating capacity) in excess of thirty passengers. Provided that if any such motor vehicle used as an omnibus for the transportation of passengers, and for which a fee is herein provided, is originally registered after August first in any year, the register fee for that year shall be one-half of the fee herein provided for such motor vehicle; and provided further that upon the registration or reregistration of any omnibus mentioned herein the number plates to be issued therefor shall, upon the payment of an additional fee of two dollars for each omnibus, be the same in form as is issued for passenger motor vehicles which are not omnibuses. The foregoing schedules shall not apply to omnibuses operated pursuant to a franchise other than a franchise express or implied in articles of incorporation over streets designated in said franchise wholly within the municipality, and for any such omnibus, without regard to the seating capacity, the annual fee shall be ten dollars; but if any such omnibus shall be also operated outside of the municipality then the foregoing schedule of fees shall apply thereto; and provided further that if any such omnibus 202 CIVIL LAW AND PRACTICE. for which a ten-dollar fee is herein provided is originally registered after August first in any year the fee for that year shall be one-half the fee herein provided for such omnibus. Schedule for Motob Vehicles, Commonly Known as Auto Tbucks, Used fob the Tbanspobtation of Goods, Wabes and Mekchandise. For each such vehicle having a combined weight of truck and carrying capacity ot two tons or less, the annual fee of ten dollars. For each such vehicle having a combined weight of truck and carrying capacity of more than two tons, and not more than three tons, the annual fee of fifteen dollars. For each such vehicle having a combined weight of truck and carrying capacity of more than three tons, and not more than four tons, the annual fee of twenty dollars. For each such vehicle having a combined weight of truck and carrying capacity of more than four tons, and not more than five tons, the annual fee of twenty-five dollars. For each such vehicle having a combined weight of truck and carrying capacity of more than five tons, and not more than six tons, the annual fee of thirty dollars. For each such vehicle having a, comJbined weight of truck and carrying capacity of more than six tons, and not more than seven tons, the annual fee of thirty-five dollars. For each such vehicle having a combined weight of truck and carrying capacity of more than seven tons, and not more than eight tons, the annual fee of forty dollars. For each such vehicle having a combined weight of truck and carrying capacity of more than eight tons, and not more than nine tons, the annual fee of forty-five dollars. For each such vehicle having a combined weight of truck and carrying capacity of more than nine tons, and not more than ten tons, the annual fee of fifty dollars. For each such vehicle having a combined weight of truck and carrying capacity of more than ten tons, and not more than eleven tons, the annual fee of fifty-five dollars. For each such vehicle having a combined weight of truck and carrying capacity of more than eleven tons, and not more than twelve tons, the annual fee of sixty dollars. For each such vehicle having a combined weight of truck and carrying capacity of more than twelve tons, and not more than thirteen tons, the annual fee of sixty-five dollars. For each such vehicle having a combined weight of truck and carrying capacity of more than thirteen tons, and not more than fourteen tons, the annual fee of seventy dollars. For each such vehicle having a combined weight of truck and carrying capacity in excess of fourteen tons, the fee of seventy dollars, and the additional fee of ten dollars for each ton in excess of fourteen tons. Provided that if any such motor vehicle, commonly known as a, truck, used for the transportation of goods, wares and merchandise and for which a fee ia herein provided, is originally registered after August first in any year, the register fee for that year shall be one-half the fee herein provided for such motor vehicles. 6-b. Registration fees for trailers. The foregoing provisions of this section in relation to registration books and registration, certificates of registration, number plates, duplicates of certificates and number plates, times of registration and reregistration and the duration thereof, for motor vehicles, shall apply also to trailers. The following fees shall be paid to the secretary of state upon the registration or reregistration of a trailer in accordance with the provisions of this article : For each trailer having a combined weight of truck and carrying capacity of two tons or less, the annual fee of five dollars. For each trailer having a combined weight of truck and carrying capacity of more than two tons and not more than five tons, the annual fee of ten dollars. For each trailer having a combined weight of truck and carrying capacity of more than five tons and not more than seven tons, the annual fee of fifteen dollars. MOTOR VEHICLES. 203 For each trailer having a. combined weight of truck and carrying capacity of more than seven tons and not more than ten tons, the annual fee of twenty dollars. For each trailer having a combined weight of truck and carrying capacity of more than ten tons and not more than fourteen tons, the annual fee of thirty dollars. For each trailer having a combined weight of truck and carrying capacity in excess of fourteen tons, the annual fee of thirty dollars and the additional fee of five dollars for each ton in excess of fourteen tons. Provided that if any such trailer for which a fee is herein provided, is originally registered after August first in any year, the register fee for that year shall be one-half of the fee herein provided for such vehicles. 7. Fees in lieu of taxes. The registration fees imposed by this article upon motor vehicles, other than those of manufacturers and dealers, shall be in lieu of all taxes, general or" local, to which motor vehicles may be subject. 8. Sale and registration hy vendee. Upon the sale or transfer of a motor vehicle registered in accordance with this section, the vendor shall immediately give notice thereof with the name and residence of the vendee to the secretary of state, and shall endorse upon the certificate of registration of such motor vehicle the name and address of the vendee and the date of delivery, and shall sign such endorsement. The vendee shall, within ten days, after the date of such sale or transfer, notify the secretary of state thereof upon a blank furnished promptly by him for that purpose, stating the name and business address of the previous owner, if known, the number under which such motor vehicle is registered and the name, residence, including county and business address, of the vendee. Upon filing such statement duly verified such vendee shall pay to the secretary of state a, fee of one dollar, and upon receipt of such statement and fee the secretary of state shall file such statement in his office and note upon the registration book or index such change in ownership. A vendee may operate such motor vehicle under the registation certificate issued to the vendor for a period of ten days from the date endorsed thereon by the vendor. At the expiration of said period of ten days the said registration shall be suspended' and the operation of such motor vehicle thereunder is prohibited. It shall be unlawful for any person to deliver or offer to deliver or to accept or offer to accept a transfer of any motor vehicle unless there be produced and delivered to the vendee the certificate of registration issued for such vehicle endorsd as hereinbefore required. A violation of this provision shall be a misdemeanor punishable by a fine not exceeding one hundred dollars or by imiprisonment not exceeding sixty days, or by both, in the discretion of the court. § 282-a. Auto trucks and trailers in excess of twenty-five thousaud pounds. After this section takes effect no person shall operate or drive on the public highways of the state outside of cities an auto truck or trailer having a combined weight of truck and load of more than twenty-five thousand pounds, but this section shall not apply to an auto truck or trailer heretofore registered pursuant to section two hundred and eighty-two of this chapter having a combined weight of truck and carrying capacity in excess of twenty-five thousand pounds during the period for which such auto truck or trailer shall have been registered or re-registered. § 283. Distinctive number; form of number plates. 1. Distinctive number must 6e carried on motor vehicles. No person shall operate or drive a motor vehicle on the public highways of this state after the first day of August, nineteen hundred and ten, unless such vehicle shall have a distinctive number assigned to it by the secretary of state and a number plate issued by the secretary of state with a number, and other identification matter if any, corresponding to that of 204 CIVIL LAW a:n'd peactice. the certificate of registration conspicuously displayed, one on the front and one on the rear of such vehicle, each securely fastened so as to prevent the same from swinging. 2. Numier plates to he changed annually. Such number plates shall be of a dis- tinctly different color each year, and there shall be at all times a marked contrast between the color of the number plates and that of the numerals or letters thereon. 3. Form of number plate. Such number plate shall be of metal, at least six inches wide and not less than fifteen inches in length, on which there shall be the initials " N. Y.," and there shall be the distinctive number assigned to the vehicle set forth in numerals four inches long, each stroke of which shall be at least five-eighths of an inch in width. No vehicle shall display the number plates of more than one state at a time, nor shall any plate be used other than those issued by the secretary of state. 4. Provisions relating to trailers. No person shall operate or drive a motor vehicle drawing a trailer on the public highways of the state after the first day of August, nineteen hundred and seventeen, unless such trailer shall have a distinctive number assigned to it by the secretary of state and a number plate issued by such secertary with a number corresponding to that of the certificate of registration displayed and fastened in the manner provided for number plates on a motor vehicle, nor unless such person shall also have with him the certificate of registration of such trailer. Such certificate shall be exhibited on demand to any peace officer or representative of the secretary of state. The provisions of subdivisions three and four of this section relating to num'ber plates for a particular motor vehicle shall apply to number plates for any such trailer, except that the word " trailer " shall also appear on such plates. § 284. Registration and number plates for manufacturers and dealers. 1. Every person, firm, association or corporation manufacturing or dealing in motor vehicles, may, instead of registering each motor vehicle so manufactured or dealt in, apply to the secretary of state for a single registration as manufacturer or dealer, as the case may be, and for number plates. The application shall be upon a blank to be furnished by the seeretry of state, and shall be verified. It shall contain a brief description of each style or type of motor vehicle manufactured or dealt in by the applicant, including the character of the motor power stated in figures of horse power in accordance with the rating established by the Society of Automobile Engineers, and if an auto truck the combined weight and carrying capacity and if a motor vehicle adapted specially for use as an omnibus the seating capacity, and the name and residence, including county and business address, of such manufacturer or dealer. The application shall be accompanied with the payment of a registration fee of fifteen dollars. Two number plates of the same kind shall constitute a set, and the fee for each set shall be five dollars; except that the first set of numiber plates shall be furnished without the payment of any fee in addition to the registration fee. The application shall be filed and registered in the ofiice of the secretary of state in the same manner as provided in this chapter for the registration of a motor vehicle. The secretary of state shall thereupon assign a distinctive manufacturer's or dealer's regis- tration number to the applicant and issue to the applicant a certificate of such regis- tration with and for each separate set of numiber plates. Each certificate shall, in addition to the general registration number, recite any and all distinctive words, numbers or marks on the set of plates for which such certificate is issued. The secre- tary of state shall also promptly deliver to the applicant, at a place within the state to be designated by him in the application, the set or sets of number plates to which he is entitled. The applicant shall be provided with the one set furnished with his application and such additional sets, not exceeding four, for which he shall have paid the fees above provided. Each number plate shall be of metal, and the manufacturer's or dealer's general registration number shall be set forth thereon together with the initials " N. Y." The size of a manufacturer's or dealer's plate and of the numerals of MOTOR VEHICLES. 205 such general registration number shall be the same as for a number plate described in section two hundred and eighty-three. All of such plates may contain such other identification matter as the secretary of state may deem proper. The provisions of BuMivision two of section two hundred and eighty-three shall apply to such number plates. Additional number plates in sets, with the corresponding certificates, may be obtained from the secretary of state at any time, upon the payment of the fee a'bove provided; but the secretary of state may limit the total number of dealers' plates to be issued to any particular dealer in excess of five. A duplicate of any manufacturer's or dealer's number plate, in case of loss or destruction, which fact shall be proven by the afSdavit of the manufacturer or dealer, may be obtained from the secretary of state for two dollars and fifty cents. 2. Except as otherwise provided in the next section, no person shall operate or drive, or cause to be operated or driven, on the public highways a motor vehicle to which any such manufacturer's or dealer's number plates are attached unless the manufacturer or dealer is the owner or entitled to the possession of such vehicle. 3. Registration under this section shall be renewed and new plates procured annually, to take effect on the first day of February of each year. All registrations under this section, including original registrations made after February first of any year, shall expire on the thirty-first day of January following the time the registration takes eflfect. 4. The privileges of this section shall not extend to any motor vehicle operated or driven by a manufacturer or dealer for pleasure purposes or for private use or for hire. § 284-a. Iiiniited nse of dealer's number plates by vendee. Upon the sale of a motor vehicle by registered dealer, the vendee shall be allowed to operate the same upon the public highways for the period of five days after taking possession thereof, without carrying number plates issued upon a registration under section two hundred and eighty-two, if the motor vehicle shall have attached thereto and displayed thereon, in the manner provided in section two hundred and eighty-three, a set of dealer's number plates issued to such dealer under section two hundred and eighty-four, and if a proper application for registration and number plates for such vehicle under the provisions of section two hundred and eighty-two shall have been mailed or presented to the secretary of state, accompanied with payment of the required fee, within twenty-four hours after he has taken possession thereof. No person shall operate or drive upon the public highways any motor vehicle on which is fastened or displayed any such dealer's number plates after a sale of stich vehicle by the dealer except in compliance with the foregoing provisions. A dealer who sells a motor vehicle shall not deliver to or permit to be taken by the vendee any such number plates without first mailing to the secretary of state a verified statement, upon a blank to be furnished by him, setting forth the following facts : A description, by general and distinctive numbers and characters thereon, of the plates and certificate to be loaned; the name and residence, including county and business address, of the vendee of the motor vehicle; a brief description of the motor vehicle sold, including the name of the manufacturer and factory number; the character and amount of the motive power stated in figures of horse power in accordance with the rating established by the Society of Automobile Engineers, or, if it be an auto truck, the combined weight of the truck and carrying capacity. The dealer shall also state whether he has knowledge or is informed that the motor vehicle is to be used as an omnibus, and if he states that he has knowledge or information that it is to be so used be shall also specify the seating capacity of the motor vehicle sold. A vendee to whom number plates are delivered or by whom they are held under the provisions of this section shall return the same and the accompanying registration certificate, to the dealer before the expiration of six days after he took possession of the motor vehicle purchased. If number plates go delivered or held, or such certificate. 206 CIVIL LAW AND PRACTICE. are not returned within the time ahove limited, the dealer shall immediately notify the secretary of state of that fact by mail describing the plates according to the general and distinctive numbers and characters thereon. § 285. Exemption of nonresident owners. The provisions of the foregoing sections relative to registration and display of regis- tration numbers shall not apply to a motor vehicle owned by a, nonresident of thia state, other than a foreign corporation doing business in this state, provided that the owner thereof shall have complied with the provisions of the law of the foreign country, state, territory or federal district of his residence relative to registration of motor vehicles and the display of registration numbers thereon, and shall conspicuously display his registration numbers as required thereby. The provisions of this section however, shall be operative as to a motor vehicle owned by a nonresident of this state only to the extent that under the laws of the foreign country, state, territory or federal district of his residence like exemptions and privileges are granted to motor vehicles duly registered under the laws of and owned by residents of this state. § 286. Signaling and other devices; signals; rules of the road. 1. Every motor vehicle, operated or driven upon the public highways of the state, shall be provided with adequate brakes in good working order and sufficient to control such vehicle at all times when the same is in use, and a suitable and adequate horn or other device for signaling. 2. Every motor vehicle, driven or operated upon the public highways of the state during the period from one-half hour after sunset to one-half hour before sunrise, shall display when running at least two lighted lamps on the front, one on each side of approximately equal power, not exceeding twenty-four candle power, unless a greater candle power shall be prescribed as provided by subdivision six, and one lighted lamp on the rear of such vehicle, which shall also display a red light visible from the rear. The rays of such rear light shall shine upon the number plate carried on the rear of such vehicle in such manner as to render the numerals thereon legible for at least fifty feet in the direction from which the motor vehicle is proceeding. The front lights shall be so arranged, adjusted and operated, as to avoid dangerous glare or dazzle, and so that no dangerous or dazzling light projected to the left of the axis of the vehicle when measured seventy-five feet or more ahead of the lamps, shall rise above forty-two inches on the level surface on which the vehicle stands. They shall also give sufficient side illumination to reveal any person, vehicle or substantial object ten feet to both sides of said vehicle, at a point ten feet ahead of the lamps. If, in addition to headlights, any such motor vehicle is equipped with any auxiliary light, projecting device or devices, other than the rear light, such auxiliary Jights shall be subject to all the restrictions of this section. 3. Except as otherwise provided in this section, such front lights shall be visible at least two hundred and fifty feet in the direction in which the motor vehicle is proceed- ing, and, when the vehicle is proceeding on a street or highway not so lighted as to reveal any person, vehicle or substantial object on such street or highway straight ahead of such motor vehicle for a distance of at least two hundred feet, such front lights shall be sufficient to reveal any person, vehicle or substantial object on the road straight ahead of such motor vehicle for a distance of at least two hundred feet. This sub- division shall not apply to the motor trucks described in subdivision four of this section. 4. Such front lights on motor trucks of two tons carrying capacity or over, which are so governed or mechanically constructed or controlled that they cannot exceed a speed of fifteen miles per hour, shall be visible at least two hundred feet, in the direction in which the motor vehicle is proceeding, and when the vehicle is proceeding on a street MOTOR VEHICLES. 207 or highway not so lighted as to reveal any person, vehicle or substantial object on the street or highway straight ahead of such motor vehicle for a distance of at least two hundred feet, such front lights shall be sufficient to reveal any person, vehicle or substantial object on the road straight ahead for a distance of seventy-five feet. 5. Motor vehicles when standing upon th^ street or highway must display two lights in front and a red light in the rear which shall be visible from a point at least one hundred feet distant, provided, however, upon the end of the motor vehicle against thie curb and where such lights are dispensed with by law or ordinance no light is required. 6. Any person may submit to the secretary of state a device for controlling the front lights of motor vehicles so that they shall comply with the provisions of this section while the vehicle is proceeding, together with an application that such device be tested as prescribed by this section. Such applicant shall pay to the secretary of state a fee of fifty dollars. Thereupon the secretary of state shall upon notice to the manufac- turer thereof, submit such device upon such uniform specifications as he may from time to time prescribe and promulgate to the United States bureau of standards or to any duly qualified testing laboratory not interested, directly or indirectly, in any lamps or headlighting apparatus or to a similarly disinterested qualified technical expert or experts from the physical laboratory of a university or technical school within the state of New York, under the jurisdiction of the university of the state of New York, with a request that it be tested as to its compliance with the provisions of this section; and the secretary of state may also submit such device to such practical road test as he deems proper. Upon notice from such bureau, laboratory or technical expert or experts that such test has been made and that such device when properly applied substantially complies with the provisions of this section and suggesting the maximum candle power to be used therewith, the secretary of state may issue a certificate to the applicant describing the device and certifying that such test has been made and that the device when BO applied complies with the provisions of this section and prescribing the said maximum candle power to be used therewith. The expense of such test shall be paid from the fee collected from the applicants, and the balance of such fee, if any, shall be paid into the state treasury. 7. Any person, firm or corporation, who may be dissatisfied with the findings of such testing laboratory, expert or experts, shall have the right of appeal to the United States bureau of standards upon payment of the same fee hereinabove prescribed, whose decision shall be final. 8. A person operating or driving a motor vehicle shall, on signal by raising the hand, from a person riding, leading or driving a horse or horses or other draft animals, bring such motor vehicle immediately to a stop and, if traveling in the opposite direction, remain stationary so long as may be reasonable to allow such horse or animal to pass, and, if traveling in the same direction, use reasonable caution in thereafter passing such horse or animal; provided that, in case such horse or animal appears badly frightened or the person operating such motor vehicle is so signaled to do, such person shall cause the motor of such vehicle to cease running so long as shall be reasonably necessary to prevent accident and insure the safety of others. In approaching or pass- ing a car of a street railway which has been stopped to allow passengers to alight or embark, the operator of every motor vehicle shall slow down and if it be necessary for the safety of the public he shall bring said vehicle to a full stop. Upon approaching a pedestrian who is upon the traveled part of any highway and not upon a sidewalk, and upon approaching an intersecting highway or a curve or a corner in a highway where the operator's view is obstructed, every person operating a motor vehicle shall slow down and give a timely signal with his bell, horn or other device for signaling. 9. Whenever a person operating a motor vehicle shall meet on a public highway any other person riding or driving a horse or horses or other draft animals or any other vehicle the person so operating such motor vehicle shall seasonably turn the same to the 208 CIVIL LAW AISTD PEACTICE. right of the center of such highway so as to pass without interference. Any such person so operating a motor vehicle shall, on overtaking any such horse, draft animal or other vehicle, pass on the left side thereof, and the rider or driver of such horse, draft animal or other vehicle shall, as soon as practicable, turn to the right so as to allow free passage on the left. Any such person so operating a motor vehicle shall, at the inter- section of public highways, keep to the right of the intersection of the centers of such highways when turning to the right and pass to the right of such intersection when turning to the left. 10. Every motor truck, omnibus and all motor commercial vehicles of one ton capacity or more, operating upon the public highways outside of cities of the first and second class, shall be equipped with a mirror or other reflecting device so adjusted or adjustable that the operator of such truck shall have a clear and full view of the road and condition of traffic behind such truck. § 286-a. Transparently illuminated rear plates. Instead of the ordinary rear number plate required by section two hundred and eighty-six of this chapter, a, rear plate may be used on motor vehicles other than motor trucks, so constructed as to permit of the attachment and use therewith of a standard illuminating device for transparently illuminating such plate, but otherwise conform- ing to the requirements of section two hundred and eighty-six of this chapter, if the numerals on such plate are legible for a distance of at least one hundred feet in the day time and for a like distance when transparently illuminated at night. Any person or corporation may submit to the secretary of state a device for transparently illu- minating such a rear license plate. If the secretary of state be satisfied that the device so submitted can be readily attached and is adequate to so transparently illuminate such plate that the numerals thereon will be legible for a distance of at least one hundred feet, he may approve the same by a certificate filed in his office, and such device shall thereupon be known as a standard illuminating device. Every illuminat- ing device used for the purpose of illuminating a rear plate as authorized by this section shall be marked or stamped " approved by the secretary of state.'' As soon as one or more of such standard illuminating devices shall have been approved by the secretary of state, he shall, upon application, when the number plates for a current year are issued, issue a rear number plate as provided by this section in substitution for the ordinary rear number plate issued by him. He shall also upon application, issue a rear number plate as provided by this section, in exchange for a rear number plate theretofore issued, upon payment of the actual cost of such new plate. The provisions of section two hundred and eighty-six of this chapter that the rays of the rear lamp shall shine upon the number plate carried upon the rear of a motor vehicle in such manner as to render the numerals thereon legible for at least fifty feet in the direction from which the motor vehicle is proceeding shall not apply to a motor vehicle equipped with a rear number plate transparently illuminated by a standard illuminating device, as authorized by this section. § 287. Speed permitted. Every person operating a motor vehicle on the public highway of this state shall drive the same in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life or limb of any person; provided, that a rate of speed in excess of thirty miles an hour for a distance of one-fourth of a mile shall be presumptive evidence of driving at a rate of speed which is not careful and prudent. § 288. Local ordinances prohibited. Except as herein otherwise provided, local authorities shall have no power to pass, enforce or maintain any ordinance, rule or regulation requiring from any owner, MOTOE VEHICLES. 209 operator or chauffeur to whom this article is applicable any tax, fee, license or permit for the use of the public highways or excluding any such owner, operator or chauffeur from the free use of such public highways, excepting such driveway, speedway or road as has been or may be expressly set apart by law for the exclusive use of horses and light carriages or in any other way respecting motor vehicles or their speed upon or use of the public highways; and no ordinance, rule or regulation contrary to or in anywise inconsistent with the provisions of this article, now in force or hereafter enacted, shall have any effect; provided, however, that the power given to local authorities to regulate vehicles offered to the public for hire, and processions, assem- blages or parades in the streets or public places, and all ordinances, rules and regula- tions which may have been or which may be enacted in pursuance of such powers shall remain in full force and effect; and provided, further, that local authorities may set aside for a given time a specified public highway for speed contests or races, to be conducted under proper restrictions for the safety of the public; and provided, further, that local authorities may exclude motor vehicles from any cemetery or grounds used for the burial of the dead, and may by general rule, ordinance or regulation exclude motor vehicles used solely for commercial purposes from any park or part of a park system where such general rule, ordinance or regulation is applicable equally and generally to all other vehicles used for the same purposes, and provided further that nothing in this article contained shall impair the validity or effect of any ordinances, regulating the speed of motor vehicles, or of any traflSc regulations with regard to the operation of motor vehicles, heretofore or hereafter made, adopted or prescribed pur- suant to law in any city of the first class; or in any city of the second class in a county adjoining a city of the first class; provided, further, that the local authorities of other cities and incorporated villages may limit by ordinance, rule or regulation the speed of motor vehicles on the puiblic highways, such speed limitation not to be in any case leas than one mile in four minutes, and the maintenance of a greater rate of speed for one-eighth of a mile shall be presumptive evidence of driving at a rate of speed which is not careful and prudent, and on further condition that each city or village shall have placed conspicuously on each main public highway where the city or village line crosses the same and on every main highway where the rate of speed changes, signs of sufficient size to be easily readable by a person using the highway, bearing the words, " City of " or " Incorporated village of ," " Slow down to miles " (the rate being inserted), and also an arrow pointing in the direction where the speed is to be reduced or changed, and also on further condition that such ordinance, rule or regulation shall fix the punishment for violation thereof, which punishment shall, during the existence of the ordinance, rule or regulation, supersede those specified in subdivision two of section two hundred and ninety of this chapter but, except in cities of the first class, shall not exceed the same. Official copies of all local ordinances passed under the provisions of this section shall be filed with the secretary of state at least thirty days before they shall respectively take effect and a brief summary of all such local ordinances shall be printed in pamphlet form and issued at regular intervals by the secretary of state. § 289. Iiicense of operators and cbauffenrs; renewals. 1. License of operators or chauffeurs. Application for license to operate motor vehicles, as an operator or chauffeur, may be made, by mail or otherwise, to the secre- tary of state or his duly authorized agent upon blanks prepared under his authority in such form and with such proof of the applicant's fitness as the secretary of state shall in his discretion determine. The secretary of state shall appoint examiners and cause examinations to be held at convenient points throughout the state as often as may be necessary. Such application, if for a chauffeur's license, shall be accompanied by a 14 210 CIVIL LAW AND PEACTICE. photograph of the applicant in such numbers and forms as the secretary of state shall prescribe, said photograph to be taken within thirty days prior to the filing of said application and to be accompanied by the fee provided herein. An owner of a, motor vehicle or a member of his immediate family shall be granted an operator's license, subject to this article. Before an operator's or chauflFeur's license is granted, the applicant shall pass such examination as to his qualifications as the secretary of state shall require. No operator's or chauffeur's license shall be issued to any person under eighteen years of age. To each person shall be assigned some distinguishing number or mark, and the license issued shall be such form as the secretary of state shall determine; it may contain special restrictions and limitations concerning the type of motor power, horse power, design and other features of the motor vehicles which the licensee may operate; it shall contain the distinguishing number or mark assigned to the licensee, his name, place of residence and address, a brief description of the licensee for the purpose of identification and the photograph of the licensee if a chauffeur. Such distinctive number or mark shall be of a distinctly different color each year and in any year shall be of the same color as that of the number plates issued for that year. The secretary of state shall furnished to every chauffeur so licensed a suitable metal badge with the distinguishing number or mark assigned to him thereon without extra charge therefor. This badge shall thereafter be worn by such chauffeur afloxed to his clothing in a conspicuous place, at all times while he is operating or driving a motor vehicle upon the public highway. Said badge shall be valid only during the term of the license of the chauffeur to whom it is issued as aforesaid. Every person licensed to operate motor vehicles as aforesaid shall indorse his usual signature on the margin of the license, in the space provided for the purpose, immediately upon receipt of said license, and such license shall not be valid until so indorsed. Every application for a chauffeur's license filed under the provisions of this section, shall be sworn to and shall be accompanied by a fee of five dollars. Every application for an operator's license shall he sworn to and accompanied by a fee of two dollars. A license granted here- under at any time shall expire on the ensuing thirty-first day of January. A license in force when this section, as hereby amended, takes effect shall be deemed a license here- under. Failure by an operator or chauffeur to exhibit his license to any magistrate, motor vehicle inspector, police officer, constable or other competent authority, shall be presumptive evidence that said person is not duly licensed under this article. 2. Operators^ and ohauffeurs' licensed registration look. Upon the receipt of such an application, the secretary of state shall thereupon file the same in his office, and register the applicant in a book or index which shall be kept in the same manner as the book or index for the registration of motor vehicles, and when the applicant shall have passed the examination provided for in the preceding section, the number or mark assigned to such applicant together with the fact that such applicant has passed such examination shall be noted in said book or index. 3. VnautJiorized possession or use of license or badge. No operator or chauffeur having been licensed as herein provided shall voluntarily permit any other person to possess or use his license or badge, nor shall any person while operating or driving a motor vehicle use or possess any license or badge, belonging to another person, or a fictitious license or badge. 4. Unlicensed operators or chauffeurs cannot drive motor vehicle. An operator's license shall not entitle a person to drive a motor vehicle as an employee or for hire. No person shall operate or drive a motor vehicle upon a public highway of this state after the first day of August, nineteen hundred and seventeen, unless such person shall have complied in all respects with the requirements of this section, and of section two hundred and eighty-two of this act; provided, however, that a nonresident owner, operator or chauffeur, who has registered, under provisions of law of the foreign country, state, territory or federal district of his residence substantially equivalent to MOTOR VEHICLES. 211 the provisions of this article, shall be exempt from license under this section; and provided, further, he shall wear the badge or carry the license certificate assigned to him in the foreign country, state, territory or federal district of his residence in the manner provided in this section. 5. Renewal. Such license shall be renewed annually, such renewal to take effect on the first day of February of each year. The secretary of state may refuse to issue or renew a license if he deems the applicant not qualified to receive such license, but the refusal of the secretary of state may be reviewed by writ of certiorari. For renewals to take effect on and after February first, nineteen hundred and eighteen, the fee shall be two dollars for a chauffeur's license and one dollar for an operator's license. § 290. Punisliiueiit for violation; procedure. 1. The violation of any of the provisions of sections two hundred and eighty-two, two hundred and eighty-three, two hundred and eighty-four, two hundred and eighty-four-a, two hundred and eighty-six, and two hundred and eighty-nine of this article shall constitute a misdemeanor punishable by a fine not exceeding fifty dollars. 2. The violation of any of the provisions of section two hundred and eighty-seven of this article shall constitute a misdemeanor punishable by a fine not exceeding one hundred dollars. 3. Punishment for operating motor vehicle while in an intoxicated condition; for going away without stopping after accident and making himself known. Whoever operates a motor vehicle while in an intoxicated condition shall be guilty of a misde- meanor. Any person operating a motor vehicle who, knowing that injury has been caused to a person or damage caused to a vehicle, due to the culpability of the person operating such motor vehicle, or to accident, leaves the place of said injury or accident, without stopping and giving his name, residence, including street and street number, and license number to the injured party, or to a police officer, or in case no police officer is in the vicinity of the place of said injury or accident, then reporting the same to the nearest police station, or judicial officer, shall be guilty of a felony punishable by a fine of not more than five hundred dollars, or by imprisonment for a term not exceeding two years, or by both such fine and imprisonment; and if any person be convicted a second time of either of the foregoing offenses, he shall be guilty of a felony punishable by imprisonment for a term of not less than one year and not more than five years. A conviction of a violation of this subdivision shall be reported forthwith by the trial court or the clerk thereof to the secretary of state, who shall upon recom- mendation of the trial court suspend the license of the person so convicted or if he be an owner the certificate of registration of his motor vehicle and, if no appeal therefrom be taken, or if an appeal duly taken be dismissed, or the judgment affirmed, and upon notice thereof by said clerk, the secretary of state shall revoke such license or in the case of an owner the certificate of registration of his motor vehicle, and shall order the license or certificate of registration delivered to the secretary of state, and shall not reissue to him said license or certificate of registration or any other license or certifi- cate of registration unless the secretary of state in his discretion, after an investigation or upon a hearing, decides to reissue pr issue such license or certificate. 4. Any operator or chauffeur operating a motor vehicle while his license is suspended or revoked shall be guilty of a misdemeanor. 5. Any person who operates any motor vehicle while a certificate of registration of motor vehicle issued to him is suspended or revoked shall be guilty of a misdemeanor. 6. Upon a third or subsequent conviction of a chauffeur or operator for a violation of the provisions of section two hundred and eighty-seven, or an ordinance, rule or regulation regulating speed of motor vehicles under section two hundred and eighty- eight, the secretary of state, upon the recommendation of the trial court, shall forth- with revoke the license of the person so convicted and no new license shall be issued 212 CIVIL LAW AND PKACTICE. to auch person for at least six months after the date of such conviction nor thereafter except in the discretion of the said secretary of state. 7. Any person mailing a false statement in the verified application for registration, or in an application for a license or in any proof or statement in writing in connection therewith, or who shall deceive or substitute or cause another to deceive or substitute in connection with any examination hereunder, shall be guilty of a misdemeanor. 8. Any person violating any of the provisions of any section of this article, which violation is stated separately to be a misdemeanor, is punishable by imprisonment for not more than one year or by a fine of not more than five hundred dollars, or by both, and for a violation of any other provision of this article, for which violation no punishment has been specified, shall be guilty of a misdemeanor punishable by a fine of not exceeding twenty-five dollars. 9. Certifying conviction to the secretary of state. Upon the conviction of any person for a violation of any of the provisions of this article the trial court or the clerk thereof shall immediately certify the facts of the case, including the name and address of the offender, the judgment of the court and the sentence imposed, to the secretary of state, who shall enter the same either in the book or index of registered motor vehicles or in the book or Index of registered chauffeurs, as the case may be, opposite the name of the person so convicted, and in the case of any other person. In a book or index of offenders to be kept for such purpose. If any such conviction shall be reversed upon appeal therefrom, the person whose conviction has been so reversed may serve on the secretary of state a certified copy of the order of reversal, whereupon the secretary of state shall enter the same In the proper book or index in connection with the record of such conviction. 10. Release from custody, bail, et cetera. In case any person shall be taken into custody charged with a violation of any of the provisions of this article, he shall forth- vrith be taken before the nearest magistrate, captain, lieutenant, clerk of the court or acting lieutenant who shall have the power of a magistrate and be entitled to an immediate hearing or admission to bail, and if such hearing cannot then be had, be released from custody on giving a bond or undertaking, executed by a fidelity or surety company authorized to do business in this state, or other bail In the form provided by section five hundred and sixty-eight of the code of criminal procedure, such bond or undertaking to be in an amount not exceeding one hundred dollars, if the charge be for a misdemeanor, except as herein provided where the charge is a violation of sub- division three of section two hundred and ninety of this article, for his appearance to answer for such violation at such time and place as shall then be Indicated. In case a person is taken into custody charged with being guilty of a felony in violation of any of the provisions of this article, such bond or undertaking shall be In an amount not less than one thousand dollars. On giving his personal undertaking to appear to answer any such violation at such time and place as shall then be indicated, secured by the deposit of a sum of money equal to the amount of such bond or undertaking, or in lieu thereof, in case by leaving the motor vehicle, or in case such the person taken into custody is the owner, person taken into custody is not the owner, by leaving the motor vehicle as herein provided with a written consent given at the time by the owner who must be present, with such officer; or In case such person is taken Into custody because of a violation of any of the provisions of this article other than on a charge of violating any of the provisions of subdivision three of section two hundred and ninety and such officer Is not accessible, be forthwith released from custody on giving his name and address to the person making the arrest and depositing with such arresting officer the sum of one hundred dollars, or in lieu thereof, in case the person taken into custody is the owner, by leaving the motor vehicle, or, in case such person taken into custody is not the owner, by leaving the motor vehicle with a written consent at the time by the owner who must be present; provided that, in any such case, the officer MOTOR VEHICLES. 213 making the arrest shall give a receipt in writing for such sum or vehicle deposited and notify such person to appear before the most accessible magistrate, describing him, and specifying the place and hour. In case such bond or undertaking shall not be given or deposit made by the owner or other person taken into custody, the provisions of law in reference to bail, in case of misdemeanor, shall apply. Where the charge is a violation of subdivision three of section two hundred and ninety of this article, the provisions of law in reference to bail in cases of a misdemeanor or a felony as the case may be shall apply exclusively. 11. Holding defendant to answer where magistrate has not jurisdiction to try offender; admitting to hail. In case the magistrate before whom any person shall be taken, charged with the violation of any provision of this article, shall not have jurisdic- tion to try the defendant, but shall hold the defendant to answer as provided by section two hundred and eight of the code of criminal procedure, he shall admit such defendant to bail upon his giving a surety company's bond or undertaking to appear to answer for such violation at such time and place as shall then be indicated, or upon his giving a written undertaking in the form provided in section five hundred and sixty-eight of the code of criminal procedure in a sum not exceeding one hundred dollars, except that in a case where the defendant is charged with a violation of any of the provisions of subdivision three of section two hundred and ninety of this article, the provisions of law in reference to bail in cases of a misdemeanor or a felony as the case may be shall apply exclusively. 12 Disposition and return of hail. Such bail as may be deposited as herein provided shall be held by the oflScer accepting the same of the clerk of the court. Upon the person who has been taken into custody and given security or bail for his appearance sur- rendering himself for trial and upon the conclusion of such trial the court shall issue to the defendant an order upon the magistrate or clerk of the court or other officer authorized to accept bail to return or deliver back said security or bail as was given. 13. A conviction of violation of any provisions of this article shall not be a bar to a prosecution for an assault or for a homicide committed by any person in operating a motor vehicle. § 290-a. Suspension and revocation of a license of operatox or chauffeur. The secretary of state may suspend or revoke any certificate of registration, or any license, issued to any person under the provisions of this article for any of the following causes; a. For a third or subsequent violation of the speed provisions of this article or ordinance or regulation made by competent local authorities within one calendar year. b. Upon the conviction of the holder of a license of a felony under this act. c. Because of some physical or mental disability of the holder, or the disability of the holder by reason of intoxication or the use of drugs, d. Because of the gross negligence of the operator whereby person or property has been injured, e. For going away with- out stopping and giving his name and address after causing injury to any person or damage to any vehicle, f. Operating a motor vehicle in a manner showing a reckless disregard for life or property of others. Before revoking such certificate or license, the holder thereof shall be entitled to a hearing before the secretary of state or his deputy, upon ten days' notice in writing. The secretary of state may likewise upon notice aforesaid revoke or suspend the license of any operator or chauffeur for any of the foregoing reasons upon the recommendation of any judge or city magistrate. On the revocation of a certificate of registration or license to operate, neither the license nor the certificate shall be reissued unless upon investigation the secretary of state shall determine that the operator may again be legally permitted to operate. Upon the conviction of a person for an offense involving a third violation of section two hundred and eighty-seven of this article, within one calendar year or of operating a motor vehicle while under the influence of intoxicating liquors or drugs, or of injuring a 214 CIVIL LAW AND PKACTICE. person or property by reason of gross negligence in operating, or in going away without stopping or giving his name or address after causing injury to any person or damage to any vehicle, the secretary of state may immediately revoke the license of the person BO convicted and if any person convicted of any such offense shall appeal from the decision of such trial court, the secretary of state may suspend forthwith the license of the person so convicted and appealing and may order the license delivered to him and shall not reissue the same unless such person is acquitted upon such appeal, or unless the secretary of state in his discretion shall decide that such license shall be re- issued. Whenever any license or certificate shall have been revoked under the pro- visions of this article no new license or certificate shall be issued unless by the secre- tary of state to such person until after thirty days from the date of such revocation, nor thereafter except in the discretion of the secretary of state. Notice of revocation and suspension of any license or certificate of registration shall be transmitted forth- with by the secretary of state to the chief of police of the city or prosecuting officer of the locality in which the person whose license or certificate of registration so revoked or suspended, resides. § 290-b. Certificate by magistrate. Upon conviction of any operator or chauffeur of a violation of this article, for any reason specified in the last preceding section as a ground for suspension or revocation of a license of an operator or chauffeur, the magistrate or other offioer before whom such operator or chauffeur has been convicted, shall forthwith transmit to the secre- tary of state a certificate stating in detail the conviction and the reasons for such con- viction, for such action as the secretary of state may determine under section two hundred and ninety-a of this act. Such certificate shall be presumptive evidence of the conviction of such operator or chauffeur. § 291, Disposition of registration fees; fines and penalties. 1. On the first day of each month or within ten days thereafter all fines, penalties or forfeitures collected for violations of any of the provisions of this article or of any act in relation to the use of the public highways by motor vehicles now in force or hereafter enacted, under the sentence or judgment of any court, judge, magistrate or other judicial officer having jurisdiction in the premises, shall be paid over by such court, judge, magistrate or other judicial officer to the treasurer of the state, with a statement accompanying the same, setting forth the action or proceeding in which such moneys were collected, the name and residence of the defendant, the nature of the offense, and the fine, penalty, sentence or judgment imposed. On the first day of ■each month or within ten days thereafter, every judge, magistrate or clerk of a court having jurisdiction of the violation of any of the provisions of this article, shall make and forward to the treasurer of the state, a verified report of all criminal actions or proceedings instituted or tried before him or it during the preceding calendar month for violation of any of the provisions of this article, which report shall set forth the name and address of the defendants, the nature of the offenses and the fines and penalties collected or imposed by such court, judge, magistrate or judicial officer, which report shall be open to inspection during reasonable business hours to any citizen of the state. On or before the first day of February of each year, the treasurer shall transmit to each branch of the legislature a statement showing the amount of the receipts under this article during the preceding fiscal year paid into the state treasury. 2. The secretary of state shall deposit all registration fees collected by him under this article in a responsible bank, banking house or trust company in the city of Albany, which shall pay the highest rate of interest to the state for such deposit, to the credit of the secretary of state on account of the motor vehicle law. Every suoli MOTOR VEHICLES. 215 bank, banking house or trust company shall execute and file in his office an under- taking to the state, in the sum, and with such sureties, as are required and approved by the secretary of state and' comptroller for the safe keeping and prompt payment on legal demand therefor of all such moneys held by or on deposit in such bank, bank- ing house or trust company, with interest thereon on daily balances at such rate as the secretary of state and comptroller may fix. Every such undertaking shall have endorsed thereon or annexed thereto the approval of the attorney-general as to its form. The secretary of state shall on the first day of each month make a verified return to the state treasurer of all registration fees received by him under this article during the preceding calendar month, stating from what county received and by whom and when paid. 3. The secretary of state shall on or before the tenth day of each month pay to the state treasurer seventy-five per centum of the balance to his credit in such bank, bank- ing house or trust company, on account of registration fees collected under this article, at the close of business on the last day of the preceding month; and from the money so deposited shall pay to the treasurer of each county twenty-five per centum of the registration fees collected from residents of such county during the preceding calendar month. In the city of New York such payment shall be made through the chamber- lain of such city on account of all counties included therein. 4. All moneys paid into the state treasury pursuant to this article shall be appro- priated and used for the maintenance and repair of the improved roads of the state, under the direction of the state commission of highways. All money received by the chamberlain of the city of New York, pursuant to this article, shall be paid into the treasury of the city to the credit of the general fund. All moneys received by the county treasurer of any county pursuant to this article, shall be used for the per- manent construction or improvement of town highways only in such county as de- fined by subdivision four of section three of this chapter. The county treasurer shall, upon receipt of such moneys, keep an accurate record thereof, and shall furnish the board of supervisors of the county, upon request by it, with a certified statement of such receipts. The board of supervisors of the county shall at a regular or special meeting and by a majority vote, allot such moneys to one or more of the towns within such county, and shall by resolution appropriate for the use of such town or towns the moneys so allotted. A certified copy of such resolution shall be filed with the county treasurer of such county, with the state commission of highways and with the town clerk of the town to which such allotment is made. The places and the manner in which such moneys shall be expended shall be determined by the town board and the town superintendent subject to the approval of the state commission of highways in accordance with the provisions of section one hundred and five of this chapter, which shall also govern the method by which such moneys shall be expended. Upon such approval by the commission and after written notice thereof has been filed by it with the county treasurer, and after the supervisor of the town to which such allot- ment is made has given a bond in accordance with the provisions of section one hundred and four of this chapter, the county treasurer shall pay to the suprevisor of such town or towns the amount to which each is entitled as determined and indicated by such resolution. A statement of the receipts and expenditures of such moneys shall be included in the report required by section one hundred and seven of this chapter. The provisions of section one hundred and eight of this chapter shall apply as to the method of keeping accounts, the forms, blanks and orders used, and the filing of records in the town clerk's office. § 292. Rates of toll on motor vebicles. Where a dififerent rate is not otherwise prescribed or permitted by law, any person or corporation maintaining a plankroad, turnpike road or bridge and authorized or 216 CIVIL LAW AND PEAOTICE. which shall be hereafter authorized, to receive tolls for the passage of vehicles ovei the same, may charge and receive for each and every motor vehicle propelled by any power other than animal power, passing over the same, a toll rate not greater than the maximum rate allowed by law to be charged and received for the passage of a vehicle drawn over such road or bridge by two animals, provided that for such motor vehicles designed to carry only two persons the rate of toll charged or received shall not exceed the maximum rate allowed by law to b« charged and received for the passage of a vehicle drawn over such road or bridge, without a load, by a single animal. § 293. Acts repealed. All acts or parts of acts inconsistent with this article or contrary thereto are hereby expressly repealed. THE LAW OF THE KOAD AND OTHER PEOVISIONS. 217 CHAPTER XI. THE LAW OF THE EOAD AND OTHEE MISCELLANEOUS PEOVISIONS EELATING TO HIGHWAYS. Section 1. In general. 2. Intemperate drivers not to be engaged. 3. When drivers to be discharged. 4. Leaving horses without being tied. 6. Owners of certain carriages liable for acts of drivers. 6. Term " carriage " defined, 7. Entitled to free use of highways. 8. Deposit of rubbish on highway. 9. Traction engines on highwayB. 10. Lights on vehicles. 11. Injuries to highways. 12. When town not liable for damages. 13. Law of the road. 14. Trees, to whom^ they belong. 15. Injury to fruit or shade trees 16. Penalty for falling trees. 17. Fallen trees to be removed. 18. Penalties, how recovered. 19. The General Highway Traffic Law. § 1. In general. The law of the road and other miscellaneous matters relating to high- ways are enacted as a part of the statute law of the State in article 12 of the Highway Law covering section 322 to 337, inclusive, of such law. Rules of the road pertaining to its use by motor vehicles have been, to some extent, covered in the preceding chapter. They are also included in the General Highway Traffic Law, which is inserted at the latter part of this chapter. § 2. Intemperate drivers not to be engaged. No person owning any carriage for the conveyance of passengers, run- ning or traveling upon any highway or road, shall employ, or continue in employment, any person to drive such carriage who is addicted to drunk- enness, or to the excessive use of spirituous liquors ; and if any such owner shall violate the provisions of this section, he shall forfeit at the rate of five dollars per day, for all the time during which he shall have kept any such driver in his employment. (Highway Law, § 322. See 0. B. & G. Consolidated Laws and Huddy on Automobiles, 5th Ed., § 294.) 218 CIVIL LAW AND PKACTICE. § 3. When drivers to be discharged. If any driver, while actually employed in driving any such carriage, shall be guilty of intoxication, to such a degree as to endanger the safety of the passengers in the carriage, the owner of such carriage shall, on receiving written notice of the fact, signed by any one of said passengers, and certified by him on oath, forthwith discharge such driver from his employment; and every such owner, who shall retain, or have in his ser- vice within six months after the receipt of such notice, any driver who shall have been so intoxicated, shall forfeit at the rate of five dollars per day, for all the time during which he shall keep any such driver in his employment after receiving such notice. (Highway Law, § 323. See B. C. & G. Consolidated Laws. ) § 4. Leaving horses without being tied. 'No driver of any carriage used for the purpose of conveying passengers for hire shall leave the horses attached thereto, while passengers remain in the same, without first making such horses fast with a sufficient halter, rope or chain, or by placing the lines in the hands of some other person so as to prevent their running ; and if any such driver shall offend against the provisions of this section, he shall forfeit the sum of twenty dollars. (Highway Law, § 324. See C. B. & G. Consolidated Laws.) § 5. Owners of certain carriages liable for acts of drivers. The owners of every carriage running or traveling upon any turnpike, road or highway, for the conveyance of passengers, shall be liable jointly and severally, to the party injured, for all injuries and damages done by any person in the employment of such owners, as a driver, while driving such carriage, whether the act occasioning such injury or damage be willful or negligent, or otherwise, in the same manner as such driver would be liable. (Highway Law, § 325. See B. C. & G. Consolidated Laws.) § 6. Term " carriage " defined. The term " carriage " as used in this article shall be construed to include stage coaches, wagons, carts, sleighs, sleds, automobiles or motor vehicles, and every other carriage or vehicle used for the transportation of persons and goods, or either of them, and bicycles, tricycles and all other vehicles propelled by manumotive or pedomotive power, or by electricity, steam, gasoline or other source of energy. (Highway Law, § 326, See B. C. & G. Consolidated Laws.) THE LAW OF THE ROAD AND OTHEE PEOVISIONS. 219 § 7. Entitled to free use of highways. The commissioners, trustees or other authorities having charge or con- trol of any highway, public street, park, parkway, driveway, or place, shall have no power or authority to pass, enforce or maintain any ordinance, rule or regulation by which any person using a bicycle or tricycle shall be excluded or prohibited from the free use of any highway, public street, avenue, roadway, driveway, parkway, park, or place, at any time when the same is open to the free use of persons having and using other pleasure carriages, except upon such driveway, speedway or road as has been or may be expressly set apart by law for the exclusive use of horses and light carriages. But nothing herein shall prevent the passage, enforcement or maintenance of any regulation, ordinance or rule, regulating the use of bicycles or tricycles in highways, public streets, driveways, parks, park- ways, and places, or the regulation of the speed of carriages, vehicles or engines, in public parks and upon parkways and driveways in the city of New York, under the exclusive jurisdiction and control of the department of parks of said city, nor prevent any such commissioners, trustees or other authorities in any other city from regulating the speed of any vehicles herein described in such manner as to limit and determine the proper rate of speed with which such vehicle may be propelled nor in such manner as to require, direct or prohibit the use of bells, lamps and other appurtenances nor to prohibit the use of any vehicle upon that part of the highway, street, park, or parkway, commonly known as the footpath or sidewalk. (Highway Law, § 327. See B. C. & G. Consolidated Laws.) § 8. Deposit of rubbish on highway. Any person who shall deposit or throw loose stones in the gutter or grass adjoining a highway, or shall deposit or throw upon a highway, ashes, papers, stones, sticks or other rubbish, shall be liable to a penalty of ten dollars to be sued for and recovered by the town superintendent. No stone or other rubbish shall be drawn to and deposited within the limits of any highway, except for the purpose of filling in a depression or otherwise improving the highway, without the consent and under the direction of the town superintendent. (Highway Law, § 3'28. See B. C. & G. Consoli- dated Laws.) § 9. Traction engines on highways. The owner of a steam roller, siteam traction engine, any other machinery propelled or driven by steam, or of any gasoline driven traction engine, his servant or agent, shall not allow, permit or use the same to pass over, through or upon any public highway or street, except upon railroad tracks, 220 CIVIL LAW AND PKACTICE. unless such owner or Ms agents or servant shall send before the same a person of mature age, at least one-eighth of a mile in advance, who shall notify and warn persons traveling and using such highway or street with horses or other domestic animals, of the approach thereof, and at night such person shall carry a red light, except in incorporated villages and cities. (Highway Law, § 329. See B. C. & G. Consolidated Laws. See also Huddy on Automobiles, 5th Ed., § 360.) The failure of the owner of a steam roller to send a person ahead to warn travelers of its approach is such negligence as will justify a verdict in favor of a person whose horse is frightened by the roller and runs away, where no contributory negligence on the part of the plaintiff is shown. (Buchanan's Sons v. Crawford Co., 112 App. Div. 278 ; Mullen v. Village of Glens Falls, 11 App. Div. 275.) § 10. Lights on vehicles. Every vehicle on wheels, whether stationary or in motion, while upon any public street, avenue, highway, or bridge, shall have attached thereto a light or lights, so placed as to be clearly visible from the front and from the rear, from one-half hour after sunset to one-half hour before sunrise; provided, however, that this section shall not apply to a vehicle designed to be propelled by hand or to a vehicle designed principally for the trans- portation of hay or straw, while loaded with such commodities. Upon the written application and presentation of reasons therefor by the owner of the vehicle, the State Commission of Highways may in writing, and sub- ject to such requirements as it may elect to impose, but without expense to the applicant, except said vehicle from the provisions of this section for such period of time as the commission may determine. The provisions of this section shall apply to all cities, towns, and villages of the State except the city of New York. Nothing in this section shall be construed to affect the provisions of any existing statute, rule, or regulation requiring lights on motor vehicles or affecting the obligations of operators or occupants thereof. A person violating the provisions of this section shall be guilty of a misdemeanor punishable by a fine not to exceed ten dollars. (High- way Law, § 329. See B. C. & G. Consolidated Laws. See also Huddy on Automobiles, §§ 344-348, as to lights on vehicles.) § 11. Injuries to highways. Whoever shall injure any highway or bridge maintained at the public expense, by obstructing or diverting any creek, water course or sluice, or by dragging logs or timber on its surface, or by drawing or propelling ovei; the same a load of such weight as to injure or destroy the culverts or bridges THE LAW OF THE EOAD AND OTHER PROVISIONS. 221 along the same, or of such weight that will destroy, break or injure the sur- face of any improved State, county or town highway, or by any other act, or shall injure, deface or destroy any mile-stone or guide post erected on any highway, shall for every such offense forfeit treble damages. (Highway Law, § 330. See B. C. & G. Consolidated Laws.) § 12. When town not liaible for damages. No town shall be liable for any damage resulting to person or property by the reason of the breaking of any bridge, sluice or culvert, by transpor- tation on the same of any traction engine, portable piece of machinery, or of any vehicle or load, together weighing eight tons or over, but any owner thereof or other person engaged in transporting or directing the same shall be liable for all damages resulting therefrom. (Highway Law, § 331. See B. C. & G. Consolidated Laws. And see Highway Law, § 331a, as to excessive loads on unsafe bridges.) § 13. Lavs: of the road. 1. Whenever any persons traveling with any carriages, or riding horses or other animals, shall meet on any turnpike, road or highway, the persons so meeting shall seasonably turn their carriages, horses, or other animals to the right of the center of the road, so as to permit such carriages, horses, or other animals to pass without interference or interruption. 2. Any carriage, or the rider of a horse or other animal, overtaking another shall pass on the left side of the overtaken carriage, horse or other animal. When requested to do so, the driver or person having charge of any carriage, horse or other animal, traveling, shall, as soon as practicable, turn to the right, so as to allow any overtaking carriage, horse or other animal free passage on his left. 3. In turning comers to the right, carriages, horses or other animals shall keep to the right of the center of the road. In turning corners to the left, they shall pass to the right of the center of intersection of the two roads. 4. Any person neglecting to comply with, or violating any provision of this section shall be liable to a penalty of five dollars to be recovered by the party injured, in addition to all damages caused by such neglect or viola- tion. (Highway Law, § 332. See also the General Highway Traffic Law following in this chapter.) The rules of the road governing motor vehicles are stated in the preceding chapter. The law of the road, as it exists at the present day, had its foundation in the custom of the colonists and existed long before any statute was passed upon this subject. The object of the statute is to make the violation 222 CIVIL LAW AND PEACTICE. of the law a penal ofEense. The rule or custom of the road is to pass to the left on overtaking and to the right on passing, assuming the position of the parties to be such as to bring the rule into use. {Wright v. Fleischman, 41 Misc. 533 ; Peters v. Curreo, 123 App. Div. 740.) It is not a crime to drive upon the wrong side of the highway, but merely subjects the offender to a liability for damages. {People v. Martinitis, 168 App. Div. 446, 153 KY. Supp. 791.) Another rule of law is that he who attempts to pass another in a high- way, going in the same direction, has the right to do so in such manner as may be most convenient under the circumstances, and if damage result to the person passed, the former must answer for it unless the latter by his own recklessness or carelessness brought disaster upon himself; and this rule is as applicable to one attempting to pass a standing vehicle, headed in the same direction, which he approaches from the rear, as it is to a vehicle in motion traveling in the same direction. {Altenkirch v. National Biscuit Co., 127 App. Div. 307.) The fact that a driver was on the wrong side of the street when meeting a person riding a bicycle is not negligence if he conducts himself with reasonable care while there. {DicMnson v. Piatt, 116 App. Div. 651.) A person driving upon a public highway in advance of another vehicle is not bound to give way or to give facilities to the overtaking vehicle to enable it to pass ; but he is bound to refrain from any manoeuvre calculated to embarrass an overtaking vehicle in its attempt tt) pass. {Crdbtree v. Otterson, 22 App. Div. 393.) One person may choose to go at a slow pace along the way and he has a right so to go. Another may choose to go at a faster pace and he has the right so to go. Yet each must exercise his right so as not unnecessarily to abridge the use by the other of his right. The one choosing to go fast may turn out and go past the one choosing to go slow, but must keep clear of him in doing it. The one choosing to go slow may keep in the beaten track, and is not bound to give way for the other to pass, if there be room on either hand for the other to go by without way being given ; nor is he bound to give way where there is not space for him so to do or if it may not be done safely. He has the first right of way under such circumstances over so much space of road as his team and vehicle cover at the moment. Hence, he is not bound to look back, or to listen for the coming of another, so as to make clear the way before him. But if by keeping his place he will stop the faster driver from passing, when, by turning aside, without meeting obstruction or danger in doing so he could give way for passage, he is bound to give way on request. His duty is summed up in keeping on his way avoiding collisions with those whom he meets, and in yieldijig way enough for those behind him to pass THE LAW OF THE EOAD AND OTHEK PEOVISIONS. 223 when it is needful and practicable so lo do, and lie is thereunto requested. {Adolph V. Cent. Park, North & East River B. B. Co., 96 IST. Y. 530; Marh v. Fritsch, 195 !N". Y, 282.) If he desires to turn from one track to another he is hound to use reasonable precautions such as a prudent man would use, but he is not bound positively to see to it that his movements will not result in collision. (Crabtree v. Otterson, 22 App. Div. 393.) The rule in regard to keeping to the right on a public highway does not apply when there are obstructions on that side of the road. {Mooney v. Trow Directory Printing, etc., Co., 2 Misc. 238.) § 14. Trees ; to whom they belong. All trees, standing or lying on land within the bounds of any highway, shall be for the proper use of the owner or occupant of such land, except that they may be required to repair the highway or bridges of the town. Where a right of way has been or shall be acquired under the provisions of this chapter, for a State or county highway, the owner of the fee shall have and may harvest for his own use the fruit upon all fruit-bearing trees left standing from time to time within the right of way so acquired, until forbidden in writing by the governing board of the political subdivisions in which the title to such right of way vests. (Highway Law, § 333. Sea B. 0. & G. Consolidated Laws.) Trees maintained for shade and ornament are a part of the street, to be used and enjoyed by the public traveling thereon the same as a good road- bed, sidewalk, pavement or anything else in the street which contributes to the comfort or pleasure of the traveler. As a general rule whatever renders a street more valuable to the people at large renders it more valu- able to the abutting owner as he has all their rights of user besides other rights which are peculiar to himself. So long as a shade tree is physically and legally a part of the street the abutting owner is entitled to all the special benefits which flow therefrom to his lot, free from interference by a wrong-doer, but subject to removal by the municipal government. An owner of land abutting upon a city street whose ownership does not extend to the middle of the street who has set out ornamental shade trees on the sidewalk in front of his premises at his own expense and with the sanction of the municipal authorities is entitled to have such trees protected against negligent or willful destruction at the hands of third parties. He has a right in such trees in the nature of an equitable ease- ment, and where one of them is girdled and destroyed by a horse, may recover from the owner of the horse the damages thus sustained. {Lane V. Lamke^ 53 App. Div. 395; Donahue v. Keystone Gas Co., 181 N. Y. 313.) And although the owner of the abutting land did not set out the 224 CIVIL LAW AiYD PEACTICE. trees, he is entitled to the rights of his predecessor in title as an abutting owner who did set them out, and if they have long stood in the street they are presumed to have been placed and maintained there with the consent of the municipal authorities. (Id.) If a gas company negligently permits gas to escape from its mains into the soil about the roots of such trees and they are thereby destroyed, the company is liable to the abutting owner for the damage he has sustained. (Id.) And if an electric light company cuts the branches of trees belonging to abutting owners, the company will be liable in treble damages for the trespass unless the cutting of the branches was an existing necessity which could not be avoided by insulating the wires or by employing other practical means which may be more expensive and less convenient. (Van Sichlen v. Jamaca Electric Light Co., 45 App. Div. 1.) § 15. Injury to fruit or shade trees. It shall be unlawful for any person or persons whatsoever in this state to hitch any horse or other animal to or leave the same standing near enough to injure any fruit or forest tree growing within the bounds of the public highway, or used as a shade or ornamental tree around any schoolhouse, church or public building, or to cut down or mutilate in any way any such ornamental or shade tree ; but the right of property owners along the high- way to cultivate, train and use such shade trees shall not be impaired or abridged hereby. Any person or persons guilty of violating the pro- visions of this section shall be deemed guilty of misdemeanor, and shall be punishable by a fine of not less than five dollars, nor more than twenty- five dollars for each such offense, and in case of failure to pay any fine imposed, may be committed to jail, not exceeding one day for each dollar of such fine. Courts of special sessions having jurisdiction to try misdemeanors, as provided by section fifty-six of the code of criminal procedure, shall have exclusive jurisdiction to try offenders in all cases occurring in the same manner as in other cases, where they now have jurisdiction, and subject to the same power of removal, and to render and enforce judgments, to the extent herein provided. All fines collected under the provisions of this act shall be paid when the offense is com- mitted in a town outside of incorporated villages, to the supervisor of the town, to be used as the town board and town superintendent may direct. When the offense is committed in any village of the county, which by law is constituted a separate road district, the fine shall be paid to the treasurer of said village, to be used as the board of trustees may direct. (Highway Law, § 334. See B. C. & G. Consolidated Laws.) THE LAW OF THE EOAD AND OTHER PEO VISIONS. 225 § 16. Penalty for falling trees. If any person shall cut down any tree on land not occupied by him, so that it shall fall into any highway, river or stream, unless by the order and consent of the occupant, the person so offending shall forfeit to such occupant the sum of one dollar for every tree so fallen, and the like sum for every day the same shall remain in the highway, river or stream. (Highway Law, § 335. See B. C. & G. Consolidated Laws.) § 17. Fallen trees to be removed. If any tree shall fall, or be fallen by any person from any enclosed land into any highway, any person may give notice to the occupant of the land from which the tree shall have fallen, to remove the same within two days ; if such tree shall not be removed within that time, but shall continue in the highway, the occupant of the land shall forfeit the sum of fifty cents for every day thereafter, until the tree shall be removed. (Highway Law, § 336. See B. C. & G. Consolidated Laws.) § 18. Penalties, how recovered. All penalties or forfeitures given in this chapter, and not otherwise specially provided for, shall be recovered by the town superintendent, in the name of the town in which the offense shall be committed ; and when recovered, shall be applied by him in improving the highways and bridges in such town. (Highway Law, § 337.) See B. C. & G. Consolidated Laws. ) § 19. The General Highway Traffic Law. By Chapter 655 of the Laws of 1917, the Legislature enacted a general law for the regulation of traffic on the public highways of the State. Its provisions are as follows : 15 226 CIVIL LAW AND PRACTICE. GENERAI. HIGHVrAY TRAFFIC I.AW. Abtiole 1. Short title; definitions; application (§§ 1-3). 2. Use of highways regulated (§§ 10-22). 3. Penalties; miscellaneous provisions (§§ 30-32). ARTICLE 1. Short Title; Definittons. Section 1. Short title. 2. Definitions. 3. Application. § 1. Short title. This chapter shall be known as the " general highway traffic law." § 2. Definitions. The following terms wherever used in this chapter, except as otherwise specifically indicated, shall be defined to mean and shall be held to include each of the meanings herein below specifically set forth, and any such term used in the singular number shall be held to include the plural: " Public highway " shall include any highway, country road, state highway, state road, public street, avenue, alley, park, parkway, or driveway, in any city, town or village within the state. " Street " or " roadway " shall include that part of the public highway or a, bridge intended for vehicles. " Curb " shall include the boundaries of the street, whether marked by curb stone or not so marked. " Crossing " shall include all crossings marked by a pavement or otherwise and the extension of the sidewalk space across intersecting streets. " Street intersection " shall include the area bounded by the side lines, real or pro- jected, of two or more streets which meet or cross each other. " Vehicle " shall include a horse and every kind of conveyance, except a baby car- riage, a street surface car and a push cart. " Motor vehicle " shall include all vehicles propelled by any power other than muscu- lar power, which do not run upon a rail or rails. " Motorcycle " shall include all motor vehicles designed to travel on not more than three wheels in contact with the ground. " Horse " shall include all domestic animals used as draught animals or beasts of burden. " Driver " shall include a person who propels or operates or who is in charge of a vehicle. " Pedestrian " shall include all persons making use of public highway for foot passage. " One-way traffic " is traffic restricted to one direction. " Parking place " shall mean that part of any street designated by local ordinance or regulation as a place for the standing of vehicles. " City " or " village " shall include that portion of a county which is within the limits of an incorporated city or village, and " town " shall include all portions of the county outside the limits of an incorporated city or village. " Reckless driving " for the purpose of this chapter shall include driving or using a vehicle or street surface car or any appliance or accessory thereof in a manner THE LAW OF THE ROAD AND OTHER PROVISIONS. 227 ■which unnecessarily interferes with the free and proper use of the highway, or un- necessarily endangers users of the highway. " Safety zone " shall mean such space within a street or public highway as shall be established for persons on foot. § 3. Application. The provisions of this chapter shall not apply to the city of New York. AKTICLE 2. Use of Highways Regulated. SECnow 10. Pedestrians. 11. Stopping, turning, passing and waiting of vehicles. 12. Kight of way and operation of vehicles. 13. Signals. 14. Speed regulations. ■ 15. Parking, safety zones and cab stands. 16. Loading and unloading vehicles. 17. Vehicles. 18. Street surface cars. 19. Motorcycles, bicycles and similar vehicles. 20. Miscellaneous regulations. 21. Duties of local authorities. 22. Powers of local authorities. § 10. Pedestrians. Pedestrians walking upon the traveled part of a street and not the sidewalk shall, when meeting or passing vehicles, be subject to and comply with the rules governing vehicles as to meeting, turning out and passing, except as to signals. § 11. Stopping, tnming, passing, and -waiting of vehicles. 1. A vehicle turning into another street to the right shall turn the corner as near the right-hand curb as practicable. 2. A vehicle turning to the left into another street, shall, before turning, pass to the right of and beyond the center of the intersecting streets; provided, however, that if directed by a traffic officer the vehicle shall pass in front of instead of around the point of intersection. 3. In turning a corner of intersecting streets a vehicle shall be driven with extreme caution and under control. 4. A vehicle passing around a circle shall keep to the right from entrance to exit. 5. Vehicles turning around or crossing from one side of the street to another, except for the purpose of passing other vehicles or because of dangers in the streets, shall do so by turning to the left so as to head in the general direction of traffic after they have crossed the street. 6. A vehicle in overtaking or meeting a street surface car which has been stopped for the purpose of receiving or discharging a passenger or passengers, shall not pass or approach within seven feet of such car so long as such car is receiving or dis- charging passengers, except that in a city having a million or more population such vehicle shall not pass or approach within eight feet of such car except as indicated by the safety zone. In passing any street surface car extreme care must be used by the driver. 228 CIVIL LAW AND PEACTICE. 7. On an avenue, street or boulevard divided longitudinally by a parkway, walk, space for street surface cars, viaduct, zone of safety, cab stand, parking space or other similar obstructions, vehicles shall keep the right of such division. § 12. Bight of tray and operation of vehicles. 1. When in the performance of duty the following vehicles shall have the right of way: United States mail, police, fire, fire patrol, bureau of buildings, emergency repair of public service corporation, ambulances and the military; but this shall not relieve the driver or owner of any such vehicle from consequences of the arbitrary or careless exercise of this right for injuries inflicted. 2. No vehicle and no street surface car, except as provided in subdivision one of this section, shall be driven through a procession, except with the permission or by order of a police officer. If the procession takes more than five minutes to pass, it shall be broken and traffic allowed to go through. 3. Two vehicles which are passing each other in opposite directions shall have the right of way, and, except in cities and villages, no other vehicle to the rear of either of such two vehicles shall pass or attempt to pass such two vehicles while they are passing each other. 4. Every driver of a vehicle approaching the intersection of a street or public road shall grant the right of way at such intersection to any vehicle approaching from his right; provided, that wherever traffic officers are stationed they shall have full power to regulate traffic. 5. A vehicle must not be so driven as to impede or obstruct the progress of the apparatus of the fire department or any official or employee of a city, town or village in the discharge of his duty at a fire. The driver of a vehicle must not drive through or within the established fire lines or over a line of fire hose. On the approach of fire apparatus, as evidenced by suitable and continuous warning or by street signals operated from fire headquarters, visible or audible one to another, indicating the route of the apparatus, the driver of a vehicle must immediately draw up such vehicle as near as practicable to the right-hand curb and parallel thereto, and bring it to a standstill, and the driver of a street car must immediately stop his car and keep it stationary until the apparatus has passed. d. The vehicle having the middle line of the highway on its left shall have the right of way. In meeting both vehicles shall keep to the right, so as to insure safe passage, and this without regard to the middle line of the highway. Slowly moving vehicles must move as near to the curb as practicable; rapidly moving vehicles must occupy the space lying immediately next to and parallel with the middle of the highway. 7. A vehicle overtaking another vehicle shall pass on the left side of the overtaken vehicle and not pull over to the right thereof until entirely clear of it. 8. The driver of an overtaking vehicle'shall signal his desire to pass an overtaken vehicle by a blast or stroke of the horn or other signaling device, and thereupon it shall be the duty of the overtaken vehicle, if possible, to turn to the right so as to allow the overtaking vehicle a reasonable space in which to pass, or to warn by signal the impossibility of such passage. 9. It shall be unlawful for any person to drive a vehicle within a safety zone. 10. In all passing and overtaking such assistance shall be given by the occupants of each vehicle respectively to the other as the circumstances shall demand and either request by voice or signal, and each shall exercise care and caution to get clearance and avoid accident. 11. No vehicle shall emerge from an alley, stable, garage or driveway except slowly and under control of the driver who shall give a proper warning by voice or signaling . device to passing vehicles and pedestrians. THE LAW OF THE EOAD AND OTHEK PEOVISIOWS. 229 12. The use of a motor muffler cut-out is prohibited on any highway within the limits of a city or incorporated village. 13. Gong and siren whistles shall not be used on any vehicle other than ambulances and vehicles operated by a police department, fire department, sheriff, authorized public utility company when on emergency calls and the United States mail and military eervices. 14. A person operating or driving a motor vehicle shall on signal by raising the hand or otherwise from a person driving, leading or riding a horse or horses or other draft animal, bring such motor vehicle immediately to a stop, and if traveling in the opposite direction remain stationary so long as may be reasonable to allow such horse or animal to pass, and if traveling in the same direction use reasonable caution in thereafter passing such horse or animal. § 13. Signals. 1. Before turning to the right or left and, except in an emergency, before decreasing speed or stopping the driver shall warn those following either by holding his arm straight out, horizontal and at right angles to the car, or by operating an adequate mechanical signal device. 2. Upon approaching a pedestrian who is on the traveled part of any street and not upon a sidewalk, and upon approaching an intersecting street or a curve or a corner in the street where the driver's view is obstructed and where a traffic officer is not on duty, every driver of a vehicle shall slow down the same and give a timely and sufficient signal with his voice, horn or other signaling device. 3. The driver of a vehicle shall before turning while in motion or from a standstill or changing the course of such vehicle first see that there is sufficient space to make such movement in safety, and shall give a visible or audible signal to the traffic officer, if there be such, or to drivers of other vehicles following of his intentions to make such movement by signaling as provided in subdivision one of this section, and where a police officer is in charge of the traffic indicate to him the direction in which the vehicle is to be turned. 4. Before backing any vehicle the driver shall see that the way is clear and shall give adequate warning, and shall, while backing, exercise due vigilance to prevent accident. § 14. Speed regnlationg. ' 1. Reckless driving is prohibited. Every person violating this provision shall be guilty of a misdemeanor and shall be punished by a fine not exceeding one hundred dollars for the first offense; and by a fine not exceeding one hundred dollars or imprisonment not exceeding six months or by both such fine and imprisonment in the discretion of the court for a second or subsequent offense. 2. Upon approaching a bridge or in passing a public hospital, fire house or a school the driver of any vehicle or street surface car shall proceed with extreme care and with vehicle or street surface car under control, provided local authorities have legible and visible signs posted, warning drivers of their approach to a bridge, fire house, public hospital or school building. 3. Street surface cars shall be brought to a full stop and all other vehicles shall use extreme caution when approaching a crossing or place designated by the sign "Traffic Point." Local authorities shall have authority from time to time to designate by ordinance, rule or regulation such crossing or other places at which such signs shall be placed. § 15. Parking, safety zones and cab stands. 1. The police commissioner, common council, board of aldermen, commission or any other body having charge of the streets of a city and the trustees of a village are 230 CIVIL LAW AND PEACTICE. authorized to designate by ordinance or regulation such, safety zones, parking spaces and cab or taxicab stands in the public streets as are, or shall be required, for the safety and convenience of the citizens and inhabitants of the city or village, and shall mark and indicate by suitable stationary and portable signs the location of such zones, spaces and stands and all persons driving, operating or having under their control any vehicle of any kind whatsoever shall obey the rules and regulations prescribed by such local authorities for safety zones, parking and cab stands, but nothing herein contained shall be construed as superseding or conflicting with section four hundred and forty- four of the penal law. 2. The driver or person in charge of a motor vehicle, before leaving the same standing unattended on the public streets, shall apply the emergency brakes. No person without authority of such driver or person in charge shall climb upon such vehicle or sound any horn or signaling device, or attempt to manipulate any of the machinery or set such vehicle in motion, or in any way interfere with such vehicle; provided, however, that for the purpose of getting away from the place of standing, a driver may move another vehicle which is so placed that he cannot get his vehicle out. 3. No person shall deface, injure, move or interfere with any sign, post, standard or any signaling device sanctioned, installed, or placed by local authorities for the purpose of directing, restricting or regulating trafSc or establishing zones. 4. When a vehicle stands on a, steep incline it shall be so placed that when the brake is released it will run into the curb. 5. Any vehicle when stopped parallel to the cuii the deceased is upon the defendant. § 11. Best and secondary evidence. One of the general rules of evidence and of universal application is that the best evidence of disputed facts must be produced of which the nature of the case will admit. (See Chamberlayne's Modem Law of Evidence, § 12.) This rule, speaking technically, applies only to the distinction between primary and secondary evidence; but the reason assigned for the application of the rule in a technical sense is equally applicable, and is frequently applied, to the distinction between the higher and inferior degree of proof, speaking in a more general and enlarged sense of the term, when tendered as evidence of a fact. The meaning of the rule is, not that courts require the strongest possible assurance of the matter in question ; but that no evidence shall be admitted, which, from the nature of the case, supposes still greater evidence in the party's possession, or power ; because the absence of the primary evidence 260 CIVIL LAW Al^D PEAOTICE. raises a presumption, that if produced it would give a complexion to the case unfavorable to the interest of the party. In requiring the production of the best evidence applicable to each particular fact, it is meant that no evidence shall be received which is merely substitutionary in its nature, so long as the original evidence can be had. The rule excludes only that evidence which itself indicates the existence of more original sources of information. And where there is no substitution of evidence, but only a selection of weaker instead of stronger proofs, or an omission to supply all the proofs capable of being produced, the rule is not infringed. (1 Greenl. Ev., § 82.) Each party is at liberty to offer such proof as he can, and if it be admissible in its nature and relevant to the issue, it cannot be rejected on the ground that by greater diligence it could have been made more satisfactory and con- clusive. (People V. Gonzalez J 35 !N". Y, 49, 61; Seidenspinner v. Metropolitan Life Ins. Co., 175 N. Y, 95.) To render competent secondary evidence of the contents of a letter or other writing, not in the hands of the adverse party, but presumably in the possession of a third party, it is incumbent upon the party desiring to introduce such evidence to show that the production of the paper itself could not be compelled by resort to a subpoena duces tecum. {Berg v. Carroll, 40 ]Sr. Y. St. Eep. 511; Auten v. Jacobus, 21 Misc. 632.) Secondary evi- dence of a material paper is not generally admissible without explanation for its nonproduction. (Cole v. Canno, 168 App. Div. 178, 153 N. Y. Supp. 957.) But where the best or primary evidence has been lost or destroyed much latitude is allowed in the admission of parol evidence to supply the loss ; and where the fact of loss is first established by competent evidence, it is then competent to introduce secondary evidence in place of the primary evidence lost or destroyed. (Lallman V. Hovey, 92 Hun, 419; Stanfield V. Knicherboclcer Trust Co., 1 App. Div. 592, 37 N. Y, Supp, 600.) The question of the sufficiency of proof of loss and of unavailing search to authorize the admission of parol evidence of the contents of a written instrument is very much in the discretion of the trial court. (McCulloch V. Hoffman, 73 IST. Y. 615; Isaacs v. Cohen, 10 App. Div. 216.) It is for the court to determine in the first instance whether the evidence establishes the destruction of the instrument where evidence of its destruc- tion is given, and also that its destruction was not to produce a wrong or injury to the opposite party or to create an excuse for its nonproduction ; and this is so whether the paper was destroyed by a party or a witness. (Mason v. Libbey, 90 N. Y. 683.) But it is error to admit secondary evidence of the contents of a written instrument without any proper EVIDENCE. 261 attempt to procure the instrument on the trial and without any sufficient evidence of its loss or destruction. (Tromhley v. Seligman, 191 N. Y. 400 ; Butter v. Mail & Express Pub. Co., 171 IST. Y. 208 ; Brigger v. Mut. Reserve Fund Life Asso., 75 App. Div, 149, 77 IST. Y. Supp. 362.) In respect to telegrams alleged to have passed between the parties, the transcript delivered to the person addressed is for some purposes, as between him and the sender, deemed the original, but it never can be so without competent proof that the alleged sender did actually send, or authorize to be sent, the despatches in question. The primary and original evidence of that fact would be the telegram itself in the hand- writing of the sender, or of an agent shown to have been duly authorized. But when it appears that the telegram has been destroyed by the company, secondary evidence of the essential fact may be given. (Oregon Steam- ship Co. v. Otis, 100 N. Y. 446.) When it is desirable to prove the contents of a written instrument the paper itself furnishes the best evidence. If it is in the possession or under the control of the adverse party a notice to the party to produce it at the trial will result either in permitting the best evidence of its contents to be given by the putting of the paper itself in evidence, or in laying the foundation for secondary evidence of its contents by parol testimony. If the party upon whom the notice is served fails or refuses to produce the paper parol evidence of its contents is competent ( Greenspau v. American Star Order, 1 Misc. 406, 20 N. Y. Supp. 945) ; and the party refusing will not be permitted to introduce the paper in evidence in his own behalf to meet the secondary evidence of its contents, or to give oral evidence to that effect for such purpose. (Tyng v. U. S. Submarine & Torpedo Boat Co., 1 Hun, 161, 60 K Y. 644; Mather v. E. M. Co., 118 IST. Y. 629.) A party desiring his adversary to produce a book of account upon a trial may require such production by the service of a subpoena duces tecum upon the adverse party five days before the day when he is required to attend, or by serving upon such party an order requiring him to pro- duce it, which order may be made by the justice at any time after the commencement of the action. (Code Civil Pro., § 867.) § 12. Parol evidence to vary writing. When a contract is consummated by writing, the presumption of law is that the written instrument contains the whole of it; and a party to it will not be allowed to show oral representations or stipulations, preceding or accompanying the execution of the instrument, differing from it or not inserted in it. The agreement to which the contractors bound themselves is to be ascertained exclusively by the writing. {Filkins v. Whyland, 24 262 CIVIL LAW AND PEACTIOE. N. Y. 338.) If upon inspection and study of the writing, read, it may be in the light of surrounding circumstances for the purpose of its proper understanding and interpretation, it appears to contain the engagement of the parties, and to define the object and measure the extent of such engagement, it constitutes the contract between them, and is presumed to contain the whole of that contract. (Eighmie v. Taylor^ 98 IST. Y. 288.) But the rule above stated prohibiting oral evidence varying the terms «f a written contract does not apply to separate independent collateral undertakings, or where the original contract was verbal and a part only reduced to writing. (Chapin v. Dohson, 78 IST. Y. 74.) To bring a case within the rule admitting parol evidence to complete an entire agreement of which a writing is only a part, two things are essential : First : The writing must appear on inspection to be an incom- plete contract; and Second: The parol evidence must be consistent with and not contradictory to the written instrument. {Case v. Phoenix Bridge Co., 134 N. Y. 78 ; House v. Walch, 144 IST. Y. 418.) In an action on a contract partly in writing, testimony as to the oral part is not objectionable as tending to vary a written instrument. {Cohen v. Levy, 77 Misc. 98, 136 N. Y. Supp. 56; Lovell v. Alton, 82 Misc. 431, 143 N". Y. Supp. 995.) A contract for the sale of goods, if complete, does not permit oral evidence as to a warranty of the quality of the goods. {Coll V. Demarest & Co., 159 App. Div. 394, 144 IST. Y. Supp. 557.) But if the contract is incomplete, the parol evidence may be received. {Lovell V. Alton, 82 Misc. 431, 143 N. Y. Supp. 995.) Bills, receipts, and other instruments of like character are always open to explanation and are not conclusive upon any of the parties. {Frazer <& Haughton, v. Mott, 118 App. Div. 791, 103 IST. Y. Supp. 851; Campbell v. Monks Co., 144 E". Y. Supp. 454.) But the rule permitting a receipt to be explained by parol has no application where the receipt is a contract between the parties. {Coon v. Knap, 8 'N. Y. 402.) The consideration clause in a deed is ordinarily a receipt, or the evidence of a fact, and can be contradicted. {M'Crea v. Purmort, 16 Wend. 460.) And whenever the recital of consideration in an instrument is merely evidence of a fact it is subject to explanation, but when it is a substantive part of the contract, embraced within the covenant of one of the parties, it cannot be thus contradicted. {Sturmdorf v. Saunders, 117 App. Div. 762.) Evidence which goes to the intention of the parties to make any con- tract at all, when executing a writing purporting to be a contract, does not violate the rule excluding parol proof to vary the terms of an actual contract. {Koehler & Co. v. Duggan, 49 Misc. 100.) EVIDENCE. . 263 The rule that parol testimony may not be given to contradict a written contract, is applied only in suits between the parties to the instrument or their privies. It does not apply to third persons, and they are at liberty to prove the truth, however contradictory to the written statement of others. {McMaster v. Pres., etc., Ins. Co. of North America, 55 N. Y. 222 ; Dumois v. Mayor, 37 Misc. 614 ; Folinsbee v. Sawyer, 157 N. Y. 196.) In an action on a written unsealed contract extrinsic evidence may be given that the contract was made on behalf of parties other than those whose names appear in or are signed to the instrument and to charge such other parties. (Bopes v. Arnold, 81 Hun, 476.) Parol evidence is competent to show that a written contract, not under seal, apparently made between the parties named in it, was in fact made between one of them and a person not named.) MacDonald v. Crissey, 215 N. Y. 609.) The delivery of an instrument in writing does not bar parol evidence that it was not to become binding until the happening of some condition resting in parol, or that the transfer was for a special purpose. (Grannis V. Stevens, 216 N. Y. 583.) If an unsealed instrument is delivered upon conditions, it is always competent to show the same, as the annexing of conditions to the delivery is not an oral contradiction of the written obligation. (Spilo v. Baumann-McWhirter Chemical Co., 157 N. Y. Supp. 521.) While oral declarations are not admissible to vary the terms of a written agreement, evidence tending to show absence of consideration, or false representations inducing its execution, is admissible, not to vary its terms, but to show that there never was a valid agreement ; and such evidence is none the less admissible because it may consist of oral declarations before or at the time of its execution, if otherwise competent. (Carroll v. Blum, 152 IST. Y. Supp. 961.) § 13. Hearsay. It is a general rule that what in the law of evidence is known as hearsay is not admissible to prove or disprove a material fact involved in the issue between the parties. (Washington v. Bank for Savings, 171 'N. Y. 166. See Chamberlayne's Modern Law of Evidence, §§ 2574- 3149.) When a witness, in the course of stating what has come to his notice concerning a matter in dispute, states the language of others which he has heard, or produces papers which he identifies as being written by particular individuals not at all connected with the case, he offers what is called hearsay evidence. The fact that a statement has been made by a person not called as a witness, or is contained in any book, document or record whatever, proof of which is not admissible on other grounds, is not 264 CIVIL LAW ANB PKACTICE. relevant as a fact from which the truth of the fact stated may be inferred. This rule is not applicable to the case where statements made are received in evidence as part of the res gestae. Conversations had between the witness and another in the absence of the party come within the rule which excludes such evidence as hearsay. Testimony of a witness as to what he has been told, but of which he knows nothing personally, is mere hearsay. The mere declaration of a party, that he had heard certain statements inconsistent with the testimony of his own witness, cannot be given in evidence against him for the purpose of showing his bad faith, in assert- ing the fact their testimony would establish or otherwise. The channel through which hearsay evidence comes does not change its nature ; it con- tinues hearsay evidence, and inadmissible, though repeated by a party to the suit as mere hearsay. {Stevens v. Vroman, 16 iN". Y. 381.) § 14. Pedigree declarations. The general rule excluding hearsay evidence has one important excep- tion, and that is, that hearsay evidence as to matters of pedigree is admis- sible. Pedigree is the history of family descent which is transmitted from one generation to another by both oral and written declarations, and unless proved by hearsay evidence, not competent in general issues, could not, in most instances, be proved at all. Matters of pedigree consist of descent and relationship evidenced by declarations of particular facts such as births, marriages and deaths. In such cases hearsay evidence of declarations of persons who, from their situation, were likely to know, is admissible when the person making the declarations is dead. {Matter of Kennedy, 82 Misc. 214, 143 iST. Y. Supp. 404. And see Chamber- layne's Modern Law of Evidence, §§ 2910-2981.) Declarations in regard to pedigree, although hearsay, are admitted on the principle that they are the natural effusions of persons who must know the truth and who speak on occasions when their minds stand in an even position without any temptation to exceed or fall short of the truth. The admissibility of perigree declarations is subject to three conditions: (1) The declarant must be deceased. (2) They must have been made ante litem motam, i. e., at a time when there was no motive to distort the truth. (3) The declarant must have been related either by blood or affinity to the family concerning which he speaks. The declarations themselves are inadmissible to prove the third condition, but the evidence of the relationship of the declarant must be shown by evidence dehors the declarations. (Aaholm v. People, 211 N. Y. 406 ; Matter of Title, Guarantee & T. Co., 172 IST. Y. Supp. 239.) Only slight proof of the EVIDENCE. 265 relationship will be required, since the relationship of the declarant with the family might be as difficult to prove as the very fact in con- troversy. In addition to the declarations of deceased persons who were likely to know, unauthenticated facts and entries, made presumably with no motive to deceive, such as entries in a family Bible, an inscription on a tombstone, a pedigree hung up in the family mansion, and recitals in deeds, are competent upon that issue. {Jackson v. CooUy, 8 Johns. 128, 131 ; Young v. Schulenberg, 165 N. T. 388 ; Eisenlord v. Clum, 126 IST. Y. 563; Washington v. Bank for Savings^ 171 'N. Y. 166, 173; Layton v. Kraft, 111 App. Div. 842.) A family tree made by a relative may be admissible on a question of pedigree. (Commonwealth Water Co. v. Brunner, 175 App. Div. 153, 161 IST. Y. Supp. 794.) § 15. Admissions. In a civil action the admissions by a party of any fact material to the issue are always competent evidence against him, wherever, whenever or to whomsoever made. The theory upon which this class of evidence is held competent is that it is highly improbable that a party will admit or state anything against himself or against his own interests unless it is true. {Reed v. McCord, 160 N". Y. 330 ; Cook v. Barr, 44 N. Y. 156 ; Whiton v. Snyder, 88 JST. Y. 306; Eisenlord v. Clum, 126 K Y. 559; Hutchins v. Van Vechten, 140 IST. Y. 118; Owen v. Cawley, 36 N. Y. 600. See Chamberlayne's Modem Law of Evidence, §§ 1232-1708.) But an admission which on its face purports to be mere hearsay and not a matter of personal knowledge is inadmissible as a declaration against interest ; as, for example, if a party merely admits that he heard the accident which gave rise to the suit occurred in the manner stated, it would be inadmis- sible, as it then would only amount to an admission that he had heard the statement which he repeated, and not to an admission of the facts included in it. (Maher v. Empire Life Ins. Co., 110 App. Div. 723; Beed v. McCord, 160 JST. Y. 330.) Offers made by way of compromise of a disputed claim in an ineffectual attempt at settlement, are incompetent evidence against the party making them. (Tennant v. Dudley, 144 'E. Y. 504.) But the admission of a distinct fact which in itself tends to establish a cause of action or defense is not rendered inadmissible from the circumstances that it was made during discussion relating to a compromise unless it is expressly stated to be made without prejudice ; but if the admission is of such a nature that the court can see that it would not have been made except for the purpose of producing the objects of the negotiation, and under an agreement that could fairly be implied from the circumstances that it was not to be used 266 CIVIL LAW AND PEACTICE. afterwards to the prejudice of the party, it may properly be excluded. (White V. Old Dominion 8. 8. Co., 102 E". Y. 660.) The only kind of admission made during an attempt at compromise which can be received in evidence is a distinct, unqualified admission of an independent fact made, not as a part of an attempted adjustment but because it was a fact. (Roome v. Bobinson, 99 App. Div. 143; Franklin v. Hoadley, 115 App. Div. 538.) The declaration of an agent or that of an officer of a corporation is not evidence against his principal, except when made in the course of his agency, or in the discharge of his official duties. (Cobb v. United Engi- neering, etc., Co., 191 IST. Y. 475.) The Code provides that the admis- sion of a member of an aggregate corporation, who is not a party, shall not be received as evidence against the corporation, unless it was made con- cerning and while engaged in a transaction in which he was the authorized agent of the corporation; or unless it was made while a member of such corporation and testifying as a witness concerning a transaction of the corporation, when the official record of such testimony shall be received. (Code Civil Pro., § 839.) Declarations of one defendant do not bind other defendants in the absence of proof of assent, or proof that all were engaged in a joint enterprise. {Whaples v. Fahys, 109 App. Div. 594.) The rule which makes it incumbent on cross-examination to direct the witness's attention to and interrogate him concerning an alleged con- tradictory statement before the latter may be given in evidence, does not apply where the witness is a party to the action. (Engel v. Dieter, 31 Misc. 793 ; Kennedy v. Wood, 52 Hun, 46.) § 16. Admissions over telephone. An admission made in a conversation over the telephone may be received, if otherwise competent, but there must be satisfactory evidence of the identity of the person making the admission. (Mankes v. Fishman, 163 App. Div. 789, 149 E". Y. Supp. 228; Hancock v. Hartford F. Ins. Co., 81 Misc. 159, 142 N. Y. Supp. 352 ; Harris v. Raskin, 142 ¥. Y, Supp. 342; Bonner Mfg. Co. v. Tannenbaum, 169 IST. Y. Supp. 43.) The fact that one talking over the telephone represents himself to be a certain person does not necessarily establish the fact. {Funk <£■ W. Co. v. Bruenn, 142 N". Y. Supp. 291; Harris v. Raskin, 142 K Y, Supp. 342.) The witness must testify that he recognized the voice of the person at the other end of the telephone, or his identity must be established by other evidence. (Mankes v. Fishman, 163 App. Div. 789, 149 N. Y. Supp. 228.) EVIDENCE. 267 § 17. Opinions. As a rule, witnesses must state facts, and not draw conclusions, or give opinions. It is tlie duty of the jury, or court, to draw conclusions from the evidence, and form opinions upon the facts proved. (See Chamberlayne's Modern Law of Evidence, §§ 1791-2573.) The cases in which opinions of witnesses are allowable, constitute exceptions to the general rule, and the exceptions are not to he extended or enlarged, so as to include new cases, except as a necessity to prevent a failure of justice, and when better evidence cannot be had. On questions of science or trade, and the like, persons of skill and science, experts in the particular science or trade, may give opinions. On questions of value, a witness must often be per- mitted to testify to an opinion as to value, but the witness must be shown competent to speak upon the subject. He must have dealt in, or have some knowledge of the article of which he speaks. Persons should be conversant with the particular article, and of its value in the market, as a farmer or dealer, or a person conversant with the article, as to the value of lands, cattle, produce, etc. These stand upon the general ground of peculiar skill and judgment in the matters about which opinions are sought. (Teer penning v. Com Exchange Ins. Co., 43 N. Y. 279.) A witness having knowledge of the subject matter will not be permitted to give in evidence his opinion as to the damages resulting from a par- ticular transaction. {Morehouse v. Mathews, 2 N. Y. 514.) It is competent for a witness to testify whether another person was intoxicated if the witness saw and observed that person's appearance and conduct. {People v. Eastwood, 14 K". Y. 562; McCarthy v. Wells, 51 Hun, 171.) In an action for work and labor, where the value of the service is in question, a witness who has heard the testimony of another witness as to the nature and extent of the services rendered may give an opinion of the value of the services so testified to. {Seymour v. Fellows, 77 IST. Y. 178.) It has been held that the question, " What was the value of the trees ? " which the witness had described as broken down by trespassing cattle, called for a fact and not an opinion. {Rogers v. Anson, 42 Hun, 436.) A witness shown to be competent may testify that a tree of a certain diameter could be a certain number of years old. {Bamapo Mfg. Co. v. Mapes, 216 N. Y. 362.) Where an expert is called as a witness to give his opinion upon a subject calling for expert testimony, he should be shown qualified to speak upon the subject before giving his opinion. The justice must decide as to whether the witness is qualified to testify as an expert in the particular fact at issue, and if the witness is shown qualified the justice should receive 268 CIVIL LAW AND PEAGTICE. his opinion, but if no qualification is shown the opinion of the witness should not be received. § 18. Impeachment of witness. A witness may be impeached by calling reputable witnesses and show- ing by them that they are acquainted with the general reputation among his neighbors of the witness sought to be discredited, and that it is bad, leaving the jury to draw the inference whether the witness is worthy of belief, or the direct question may be put to the impeaching witnesses whether from their knowledge of the general character of the witness they would believe him under oath. Another mode is to show by the impeach- ing witness that they are acquainted with the general character of the witness for truth, that it is bad, and from that character they do not deem him worthy of belief under oath. In either case it is usual, although not absolutely necessary, to ask the impeaching witnesses whether they would believe the witness under oath. (See Baylies' Trial Practice, 280.) A party may not impeach, either by general evidence or by proof of contradictory statements out of court, a witness whom he has presented to the court as worthy of credit. He may contradict him as to a fact material in the cause although the effect of that proof may be to discredit him, but he cannot adduce such a contradiction when it is only material as it bears upon his credibility. (Coulter v. American Merchcmts' Union Express Co., 56 N. Y. 685 ; Becker v. Koch, 104 N. Y. 394 ; Berhowski v. New York City By. Co., 127 App. Div. 544.) The rule that one cannot impeach his own witness by contradictory statements made out of court is limited to the case of a witness who is not the adverse party. {Koester V. Bochester Candy Works, 194 'N. Y. 92.) § 19. Books of account. Where there are regular dealings between the plaintiff and defendant, and it is proved that the plaintiff keeps honest and fair books of account, that some of the articles charged to the defendant have been delivered to him ; and that the plaintiff keeps no clerk, his books of account are, under the circumstances admissible in evidence. ( Voshurgh v. Thayer, 12 Johns. 462.) This is the leading case on this subject. As to the admissibility of books of account, see Chamberlayne's Modem Law of Evidence, §§ 3051-3149.) The rule excluding books of account kept by a party who keeps a clerk, applies only where there is an employee who has something to do with, and has knowledge generally of the business of his employer as to goods EVIDENCE. 269 sold or work done, so that he can testify on the subject ; one whose business is simply to keep the books is not a clerk within its meaning. That rule evidently means an employee whose duty it is to attend to the details of business and thus is able to prove an account, and not one who from his isolated position as a bookkeeper, can have but little means of knowledge personally as to the transactions done, or information relating thereto, except what is mainly derived from others. The authorities are numerous which hold that books containing entries made by those whose duty it was to make them in the usual course of business, are competent evidence when other requisites are sufSciently established. (McOoldrick v. Trapphagan, 88 ISr. Y. 334.) Ordinarily books of accounit are introduced in evidence by the party by whom or for whom they have been kept. Subject to the restrictions above stated these books become evidence for the consideration of the court or jury by whom the issues are to be determined. As evidence, which is manufactured by the party, they should be received with caution ; but that is an objection which goes to the weight of the evidence and not to its admissibility, which is to be determined solely with reference to the foundation which has been laid for it. Their admission is not authorita- tive as to their contents ; for the conclusion as to their credit will depend upon their appearance, the manner of their keeping and the character of him who offers them. (Smith v. Smith, 163 'N. Y. 168.) Should it be desirable for any reason to introduce in evidence the books of an adverse party, their production should be compelled by a subpoena duces tecum or an order as provided in section 867 of the Code of Civil Procedure. For the form of subpoena see Form No. 40. For a more full discussion of books of account as evidence see 2 Wait's Law & Pr. 751-771. § 20. Statutory provisions as to competency of witnesses. The Code of Civil Procedure contains important provisions as to com- petency of witnesses, and the admissibility of testimony by persons engaged in certain professional pursuits, which are concisely stated, and best presented in the language of the statute itself. These provisions are as follows : § 828. No witness to be excluded by reason of interest, etc. Except aa otherwise specially prescribed in this title, a person shall not be excluded or excused from being a witness, by reason of his or her interest in the event of an action or special proceeding; or because he or she is a party thereto; or the husband or wife of a party thereto, or of a person in whose behalf an action or special proceeding is brought, prosecuted, opposed, or defended. 270 CIVIL LAW AI^D PEACTICE. § 829. When party, etc., cannot be esamined. Upon the trial of an action or the hearing upon the merits of a special proceeding a party or a person interested in the event, or a person from, through or under whom such a party or interested person derives his interest or title, by assignment or other- wise, shall not be examined as a witness, in his own behalf or interest, or in behalf of the party succeeding to his title or interest, against the executor, administrator, or survivor of a deceased person, or the committee of a lunatic, or a person deriving his title or interest from, through, or under a deceased person or lunatic, by assignment or otherwise; concerning a personal transaction or communication between the witness and the deceased person or lunatic; except where the executor, administrator, survivor, committee, or person so deriving title or interest is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence, concerning the same transaction or communication. A person shall not be deemed interested for the purposes of this section by reason of being a stockholder, or officer of any banking corporation which is a party to the action or proceeding, or interested in the event thereof. § 830. Testimony of party or ^Fitness since deceased or insane or -who, being a nonresident, has departed from the state, together irith all exhibits or documents proved during such testimony. Where a party or witness has died or become insane or, being a nonresident of this state, has departed from the state or, being a resident of the state has departed there- from by reason of military or naval service under the state or United States, since or during the trial of an action now or hereafter pending, or since or during the hearing upon the merits of a special proceeding now or hereafter pending, the testimony of the decedent or insane person or of such absentee, or of any person who is rendered Incompetent by the provisions of the last section, taken or read in evidence at the former trial or hearing, or at the same trial or hearing, either in court or before the same or a new referee, together with all exhibits and documents read in evidence in connection with, or as a part of the giving of such testimony, may be given or read in evidence at a new trial or hearing or at a continuation of the same trial or hearing either in court or before the same or a new referee, or upon any subsequent trial or bearing, either in court or before the same or a new referee, of the same subject- matter in the same or another action or special proceeding between the same parties to such former trial or hearing or their legal representatives, by either party to such new trial or hearing, or to such continuation of the same trial or hearing either in court or before the same or a new referee, or to such subsequent action or special proceeding either in court or before the same or a new referee, subject to any other legal objection to the competency of the witness, or to any other legal objection to his testimony or any question put to him, or to any other legal objection to such exhibits and documents. Such testimony, exhibits and documents proven by oath to have been 60 previously taken or read in evidence may be so given or read in evidence; or the original stenographic notes of such testimony taken by a stenographer who has since died or become incompetent may be so read in evidence by any person whose com- petency to read the same accurately is established to the satisfaction of the court or officer presiding at the trial of such action or special proceeding. (Amended by L. 1911, ch. 764, in effect Sept. 1, 1911.) § 831. When husband and -wife not competent witnesses; when competent. A husband or vrife is not competent to testify against the other, upon the trial of an action, or the hearing upon the merits of a special proceeding, founded upon an allegation of adultery, except to prove the marriage or disprove the allegation of adultery. However, if upon such trial or such hearing the party against whom the EVIDENCE. 271 allegation of adultery is made produces evidence tending to prove any of the defenses thereto mentioned in section seventeen hundred and fifty-eight of this act, the other party is competent to testify in disproof of any such defense. A husband or wife shall not be compelled, or without consent of the other if living, allowed to disclose a confidential communication made by one to the other during marriage In an action for criminal conversation, the plaintiff's wife is not a competent witness for the plaintiff, but she is a competent witness for the defendant, as to any matter in controversy; except that she cannot, without the plaintiff's consent, disclose any confidential communication had or made between herself and the plaintiff. § 832. Conviction for crime not to exclude nitness: hotr conviction proved. A person who has been convicted of a crime or misdemeanor is, notwithstanding, a competent witness in a civil or criminal action or special proceeding; but the convic- tion may be proved for the purpose of affecting the weight of his testimony, either by the record, or by his cross-examination, upon which he must answer any question relevant to that inquiry; and the party cross-examining him is not concluded by his answer to such a question. § 833. Clergymen, etc., not to disclose confessions. A clergyman, or other minister of any religion, shall not be allowed to disclose a confession made to him, in his professional character, in the course of discipline, enjoined by the rules or practice of the religious body, to which he belongs. § 834. Physicians, etc., not to disclose professional information. A person, duly authorized to practice physic or surgery, or a professional or regis- tered nurse, shall not be allowed to disclose any information which he acquired in attending a patient, in a professional capacity, and which was necessary to enable him to act in that capacity; unless, where the patient is a child under the age of sixteen, the information so acquired indicates that the patient has been the victim or subject of a crime, in which case the psysician or nurses may be required to testify fully in relation thereto upon any examination, trial or other proceeding in which the commission of such crime is .a subject of inquiry. § 835. Attorneys and connselors not to disclose communications. An attorney or counselor-at-law shall not be allowed to disclose a communication made by his client to him, or his advice given thereon, in the course of his professional employment, nor shall any clerk, stenographer or other person employed by such attorney or counselor be allowed to disclose any such communication or advice given thereon. § 836. Application of tbe last tbree sections. The last three sections apply to any examination of a person as a witness unless the provisions thereof are expressly waived upon the trial or examination by the person confessing, the patient or the client. But a physician or surgeon, or a profes- sional or registered nurse, may upon a trial or examination disclose any information as to the mental or physical condition of a patient who is deceased which he acquired in attending such patients professionally, except confidential communications and such facts as would tend to disgrace the memory of the patient, when the provisions of section eight hundred and thirty-four have been expressly waived on such trial or examination by the personal representatives of the deceased patient, or if the validity of the last will and testament of such deceased patient is in question, by the executor or executors named in said will, or the surviving husband, widow or any heir at law or any of the next of kin, of such deceased, or any other party in interest. But 272 CIVIL LAW AND PEACTICE. nothing herein contained shall be construed to disqualify an attorney in the probate of a will heretofore executed or offered for probate or hereafter to be executed or offered for probate from becoming a witness, as to its preparation and execution in case such attorney is one of the subscribing witnesses thereto. In an action for the recovery of damages for a personal injury the testimony of a physician or surgeon or a professional or registered nurse attached to any hospital, dispensary or other char- itable institution as to information which he acquired in attending a patient in a professional capacity, at such hospital, dispensary, or other charitable institution shall be taken before a referee appointed by a judge of the court in which such action is pending; provided, however that any judge of such court at any time in his discretion may, nothwithstanding such deposition, order that a subpoena issue for the attendance and examination of such physician or surgeon or a professional or registered nurse upon the trial of the action. In such case a copy of the order shall be served, together with the subpoena. Sections eight hundred and seventy-two, eight hundred and seventy- three, eight hundred and seventy-four, eight hundred and seventy-five, eight hundred and seventy-six, eight hundred and seventy-nine, eight hundred and eighty, eight hundred and eighty-four and eight hundred and eighty-six of this code apply to the examination of a physician or surgeon or a professional or registered nurse as pre- scribed in this section. The waivers herein provided for must be made in open court, on the trial of the action, or proceeding, and a paper executed by a party prior to the trial, providing for such waiver shall be insufficient as such a, waiver. But the attor- neys for the respective parties, may prior to the trial, stipulate for such waiver, and the same shall be sufficient therefor. § 837. When -nritnesses not excused from testifying, A competent witness shall not be excused from answering a relevant question, on the ground only that the answer may tend to establish the fact that he owes a debt, or is otherwise subject to a civil suit. But this provision does not require a witness to give an answer, which will tend to accuse himself of a crime or misdemeanor, or to expose him to a penalty or forfeiture; nor does it vary any other rule, respecting the examination of a witness. § 838. Evidence of party may be rebntted. The testimony of a party, taken at the instance of the adverse party, orally or by deposition, may be rebutted by other evidence. Section eight hundred and thirty-nine of the Code relating to an admission by a member of a corporation, and section eight hundred and forty, relating to a seal as presumptive evidence of consideration, have both been noticed elsewhere in this chapter. g 839. Admission by member of corporation. The admission of a member of an aggregate corporation, who is not a party, shall not be received as evidence against the corporation unless it was made concerning and while engaged in a transaction in which he was the authorized agent of the corporation; or unless it was made while a member of such corporation and testifying as a witness concerning a transaction of the corporation, when the official record of such testimony shall be received. (Amended by L. 1903, ch. 384.) § 840. Seal, presumptive evidence of consideration. A seal upon an executory instrument, hereafter executed, is only presumptive evidence of a sufficient consideration, which may be rebutted, as if the instrument was not sealed. (Amended by L. 1877, ch. 416.) EVIDENCE. 2Y3 § 841. Presumption of death in certain cases. A person possessed of personal property in this state or upon whose life an estate in real property depends, who remains without the United States, or absents himself in the state or elsewhere for seven years together, is presumed to be dead in an action or special proceeding concerning such property or the administration of the estate of such persons, unless it is affirmatively proved that he was alive within that time. And where in any action of partition in this state any portion of the proceeds of the sale of real property is or has been paid into court, or paid to the treasurer of any county for any unknown heirs, and has remained unclaimed for twenty-five years, after such payment by any person entitled thereto, the lapse of twenty-five years after such payment raises the presumption of the death of such unknown heirs at the time of the sale of such real property and before such payment, and after the lapse of twenty-five years after such payment it shall be presumed that there were no such unknown heirs living at the time of such sale or payment, and in any action or proceeding taken for the purpose of distributing and paying over such proceeds, all such unknown heirs are presumed and they shall be presumed to have been dead at the time of such sale and before such payment into court, or to the treasurer of any county. (Amended by L. 1889, ch. 40; L. 1891, ch. 364; L. 1918, ch. 318.) § 841 -a. Testimony of surveyor and proof of standard of measurement. No surveyor shall give evidence in any cause depending in any of the courts of this state, or before arbitrators, respecting the survey or measurement of lands which he may have made, unless if required, either such surveyor shall make oath or it shall otherwise be shown that the chain or measure used by him was conformable to the standards of the state which were the standards of the state at the time such survey was made. An official certificate of any state, county, city, village or town sealer elected or appointed pursuant to the laws of this state, or the oath of such surveyor, that such chain or measure conformed to the state standard which shall have been furnished any such sealer pursuant to the provisions of the laws of this state, shall be prima facie evidence of such conformity, and an official certificate made by any such sealer that the implement used in measuring such chain or other measure was the one provided under such laws for such purposes, shall be prima facie evidence of that fact. (Added by L. 1909, ch. 65.) g S41-b. Trial and burden of proof of contributory negligence. On the trial of any action to recover damages for causing deach the contributory negligence of the person killed shall be a defense, to be pleaded and proven by the defendant. (Added by L. 1913, ch. 228.) § S41-b. Recitals as to heirship in deeds. Hereafter, in any proceeding, suit or action pending or hereafter brought, in any of the courts of this state, any deed, mortgage, lease, release, power of attorney, or other instrument more than thirty years old, executed for the purpose of transferring the title to or interest in lands, tenements or hereditaments situated within this state, which contains recitals that the grantors, grantees, or either, or both, are the heirs- at-law of a prior owner of the title or interest described in said instrument, shall be presumptive evidence of said heirship as therein recited, if such instrument be duly acknowledged or witnessed and proved in any manner required or permitted at the date of the execution thereof, and be duly recorded in any county where any part of the lands described therein shall be located, or duly recorded in the office of the secretary of state of the state of New York. (Added by L. 1913, ch. 395.) 18 274 CIVIL LAV\' AIvTB PRACTICE. § 21. Statutory provisions as to documentary evidence. The Code of Civil Procedure also contains important provisions in respect to the proof which will entitle certain documents and papers to be received in evidence in the absence of oral proof; and also the proof requisite to entitle a copy of a public document to be received in evidence in place of the original. These provisions are as follows : § 921. Certain official certificate evidence. Where the oflScer, to whom the legal custody of a paper belongs, certifies, under his hand and ofiicial seal, that he has made diligent examination, in his oflSce, for the paper, and that it cannot be found, the certificate is presumptive evidence of the facts so certified, as if the ofiicer personally testified to the same. § 922. Certificate, etc., on file, evidence. Where a public officer is required or authorized, by special provision of law, to make a certificate or an affidavit, touching an act performed by him, or to a fact ascertained by him, in the course of his official duty; and to file or deposit it in a public oflice of the state; the certificate or affidavit, so filed or deposited, or an exemplified copy thereof, is presumptive evidence of the facts therein alleged, except where the effect thereof is declared or regulated, by special provision of law. § 923. Notary's certificate, evidence. The certificate of a notary public of the state, under his hand and seal of office, of the presentment by him, for acceptance or payment, or of the protest, for non- acceptance or non-payment, of a promissory note or bill of exchange, or of the service of notice thereof on a party to the note or bill; specifying the mode of giving the notice, the reputed place of residence of the party to whom it was given, and the post- office nearest thereto; is presumptive evidence of the facts certified, unless the party, against whom it is offered, has served upon the adverse party, with his pleading, or within ten days after joinder of an issue of fact, an original affidavit, to the effect, that he has not received notice of non-acceptance, or of non-payment of the note or bill. A verified answer is not sufficient as an affidavit, within the meaning of this section. § 924. Notary's protest and memorandum, where evidence. In case of the death or insanity of a notary public of the state, or of his absence or removal, so that his personal attendance, or his testimony, cannot be procured, in any mode prescribed by law, his original protest, under his hand and official seal, the genuineness thereof being first duly proved, is presumptive evidence of a demand of acceptance, or of payment, therein stated; and a note or memorandum, personally made or signed by him, at the foot of a protest, or in a regular register of official acts kept by him, is presumptive evidence that a notice of non-acceptance or non-payment was sent or delivered, at the time, and in the manner, stated in the note or memorandum. § 925. Proof of presentment, etc., of foreign bills. Proof of the presentment, for acceptance or payment, of a promissory note or bill of exchange, payable in another state, or in a territory, or foreign country, or of a protest of the note or bill, for non-acceptance, or non-payment, or of the service of notice thereof, on a party to the note or bill, may be made, in any manner authorized by the laws of the state, territory, or country, where it was payable. EVIDENCE. 275 § 926. AfB.daTit of printer, etc., evidence. The affidavit of the printer or publisher of a newspaper, published within the state, or of his foreman or principal clerk, showing the publication of a notice or other advertisement, authorized or required, by a law of the state, to be published in that newspaper, annexed to a printed copy of the notice or other advertisement, may be read in evidence; and is presumptive evidence of the publication, and, also, of the matters stated therein, showing that the deponent is authorized to make the affidavit. But this section does not apply to a case, where the affidavit is required by law to be filed, unless it has been duly filed ; or to a case, where the mode of proving a publication is otherwise specially prescribed By law. § 927. Affidavit of service of notice. Where it is necessary upon the trial of an action, to prove the service, posting or affixing, of a notice, an affidavit, showing the service, posting or affixing, to have been, made by the person making the affidavit, is presumptive evidence of the service, posting or affixing, upon first proving that he is dead or insane, or that his personal attendance cannot be compelled, with due diligence. § 928. Marriage certificate, evidence. An original certificate of a marriage, within the state, made by the minister or magistrate by whom it was solemnized; the original entry thereof, made, pursuant to law, in the office of the clerk of a city or a town within the state; or a copy of the certificate, or of the entry, duly certified, is presumptive evidence of the marriage. [Under the general statutes of this state copies of the records of marriages including the license and certificate of marriage, and all other records pertaining thereto duly certified by the clerk of the county where the same are recorded under his official seal shall be evidence in all courts. Domestic Relations Law, % 23; Chap. 19, Consolidated Laws.'] § 929. Books of foreign corporation, ts-hen evidence. Where a party wishes to prove an act or transaction of a foreign corporation, the book or books of the corporation may be used for that purpose, as presumptive evidence, whether any or all of the parties are or are not members of the corporation. § 930. When a copy thereof is evidence. If an original book is not produced at the trial, as prescribed in the last section, a. copy thereof, or of an entry therein, verified as prescribed in the next section, may be used, with like effect as the original book; provided that the party, intending to use the copy, gives the adverse party at least ten days' notice of his intention, specifying briefly the nature of the evidence proposed to be given. But this and the next section do not apply, where the foreign corporation is a party to the action, and seeks to prove its own act or transaction, in its own behalf. § 931. How copy to be verified. The copy must be verified by the deposition, taken as prescribed by law, or the oral testimony, taken at the trial, of the person who made it, or of a person who has examined and compared it with the original book, or the entry therein. The witness must testify that the copy produced is correct; that he made it, or compared it with the original; and that he then knew that the original book so copied, or containing the entry, was the book of the corporation; or that it was then acknowledged to him to be such, by an officer or receiver of the corporation, or a person having the custody thereof, naming the person who made the acknowledgment; and he must specify where, and in whose custody, the original was then kept. 276 CIVIL LAW AND PEACTICE. § 931-a. Copy of designation of person upon -nrhom to make service, as evidence. An exemplified copy of a designation of a person upon whom to make service filed by a foreign corporation as provided in section sixteen of the general corporation law accompanied with a certificate that it has been revoked, is presumptive evidence of the execution thereof, and conclusive evidence of the authority of the officer executing it. § 931-11. Recital in order, resolution or record of public officers, board or body presumptive evidence of certain facts. A recital in any order, resolution or other record of any proceeding of a meeting referred to in section forty-one of the general construction law that such meeting had been held or adjourned as provided in said section or that it had been held upon notice to the members, as therein provided, shall be presumptive evidence thereof. § 931-c. [Added, 1909.] Extracts from books and records of comptroller's office as evidence. The state comptroller is hereby authorized to furnish extracts from the books and records of his office in reference to any lot, piece or parcel of land, certifying that such extract contains all that is stated in such book or record relating to such lot, piece or parcel of land, and such certified extract may be read in evidence in all courts and proceedings with the same effect as the original book or record. § 932. Statutes, etc., how proved. A statute or joint resolution, passed by the legislature of the state, may be read in evidence from a newspaper, designated as prescribed by law, to publish the same, until six months after the close of the session at which it was passed; and at any time , from a volume printed under the direction of the secretary of state. To entitle any copy of a law published, other than those published under the direction of the secretary of state, to be read in evidence, there shall be contained in the same book or pamphlet, a printed certificate of the secretary of state, that such copy is a correct transcript of the text of the original laws. For such certificate the secretary of state shall collect such a fee as he shall deem just and reasonable. § 933. Copies of records and papers in certain offices, presumptive evi- dence. A copy of a paper filed, kept, entered, or recorded, pursuant to law, in a public ofiice of the state, the officer having charge of which has, pursuant to law, an official seal; or with the clerk of a, court of the state; or with the clerk or secretary of either house of the legislature, or of any other public body or public board, created by authority of a law of the state, and having, pursuant to law, a seal; or a transcript from a record, kept, pursuant to law, in such a public office, or by such a clerk or secretary, is evidence, as if the original was produced. But to entitle it to be used in evidence, it must be certified by the clerk of the court, under his hand and the seal of the court; or by the officer having the custody of the original ; or his deputy or clerk, appointed pursuant to law, under his official seal and the hand of the person certifying, or by the presiding officer, secretary, or clerk of the public body or board, appointed, pursuant to law, under his hand, and, except where it is certified by the clerk or secretary of either house of the legislature, under the official seal of the body or board. § 934. Copies of papers filed with town clerk. A copy of a paper filed, pursuant to law, in the office of the town clerk, or a tran- script from a record kept therein, pursuant to law certified by the town clerk is evidence, with like effect as the original. EVIDENCE. 277 § 935. Conveyance, when acknoirledged, or record, or transcript of record, evidence. A conveyance, acknowledged or proved, and certified in the manner prescribed by law, to entitle it to be recorded in the county where it is offered, is evidence, without further proof thereof. Except as otherwise specially prescribed by law, the record of a conveyance, duly recorded, within the state, or a transcript thereof, duly certified is evidence, with like effect as the original conveyance. § 936. Such evidence may be rebutted. The certificate of the acknowledgement, or of the proof of a conveyance, or the record, or the transcript of the record, of such a conveyance, is not conclusive; and it may be rebutted, and the effect thereof may be contested, by a party affected thereby. If it appears that the proof was taken upon the oath of an interested or incompetent witness, the conveyance, or the record or transcript thereof, shall not be received in evidence, until its execution is established by other competent proof. § 937. What instruments may be achno-wledged. Any instrument, except a promissory note, a bill of exchange, or a last will, may be acknowledged, or proved, and certified, in the manner prescribed by law for taking and certifying the acknowledgement or proof of a conveyance, of real property; and thereupon it is evidence, as if it was a conveyance of real property. § 938. Justice's docket and transcript evidence before him. The docket-book of a justice of the peace, within the state, or a transcript thereof certified by him, is evidence before him, of any matter required by law to be entered by him therein. § 939. Transcript from justice's docket, evidence generally. A transcript from the docket-book of a justice of the peace within the state, sub- scribed by him, and authenticated by a certificate of the clerk of the county in which the justice resides, under his hand and official seal, to the effect that the person subscribing the transcript, was, at the date of the judgment therein mentioned, a justice of the peace of that county; and that the clerk is acquainted with his hand- writing and verily believes that the signature to the transcript is genuine, is evidence of any matter stated in the transcript, which is required by law to be entered by the justice in his docket-book. § 940. Other proof of proceedings before justice. The proceedings in an action brought, or a special proceeding instituted, before a justice of the peace within the state, may also be proved by the oath of the justice. In case of his death or absence, they may be proved by the original minutes of the proceedings kept by him pursuant to law, accompanied with proof of his handwriting; or by a copy of the minutes, sworn to by a competent witness as having been com- pared with the original entries, with proof that those entries were in the handwriting of the justice. § 941. Ordinances, etc., of cities, villages, etc. An act, ordinance, resolution, by-law, rule or proceeding of the common council of a city, or of the board of trustees of an incorporated village or of a local board of health of a city, town or incorporated village, or of a board of supervisors within the state, may be read in evidence, either from a copy thereof certified by the city clerk, village clerk, clerk of the common council, clerk or secretary of the local board of 278 CIVIL LAW AISTD PEACTICE. health or clerk of the board of supervisors; or from a volume printed by authority of the common council of the city or the board of trustees of the village or the local board of health of the city, town or village, or the board of supervisors. § 941 -a. Proof of colonial statutes. A statute contained in the compilation of the colonial statutes transmitted to the legislature by the cpmmissioners of statutory revision, pursuant to chapter one hundred and twenty-five of the laws of eighteen hundred and ninety-one, shall be ■evidence in any action or proceeding, and of the same force and effect as though the original was produced, if it appears from such publication that such statute was copied from the original. :§ 942. Printed copies of la-ws of another state. A printed copy of a statute or other written law of another state, or of a territory, or of a foreign country, or a printed copy of a proclamation, edict, decree or ordinance, by the executive power thereof, contained in a book or publication purporting or proved to have been published by the authority thereof or proved to be commonly admitted as evidence of the existing law in the judicial tribunals thereof is presumptive evidence of the statute, law, proclamation, edict, decree or ordinance. The unwritten or common law of another state, or of a territory, or of a foreign country, may be proved as a fact by oral evidence. The books of reports, of cases adjudged in the courts thereof, must also be admitted as presumptive evidence of the unwritten or common law thereof. § 943. Copies of records of the TTnited States courts. A copy of the record, or any other proceeding of a court of the United States, ia evidence, when certified by the clerk or officer in whose custody it is required by law to be. § 944. Certified copies of papers on file in departments of government of the TTnited States. A copy of a record or other paper, remaining in a department of the government of the United States, is evidence, when certified by the head, or acting chief officer, for the time being, of that department; or when certified by the officer in whose charge it is, pursuant to a statute of the United States, or otherwise in accordance with a statute of the United States, relating to certifying the same. A certificate of the director or other officer in charge of the census of the United States, attested by the secretary of the interior, stating the population of any part of the United States, or giving the result of said census otherwise shall be received as prima facie evidence of such facts. The record of the observations of the weather, taken under the direction of the signal service of the United States, when certified by the officer in charge thereof, at the place where they were taken and are kept, is prima facie evidence of the matters of fact stated therein. The records of the observation of the weather taken at the arsenal in Central park under the direction of the meterological and astronomical observatory of the city of New York, when duly certified by the official in charge thereof, or his deputy, shall be presumptive evidence of the facts set forth therein, and shall be received in evidence on the trial of any action in all the courts of this state. g 945. Record of bill of sale, etc., of vessels. The record of a bill of sale, mortgage, hypothecation or conveyance of a vessel belong- ing to a port or place within the United States, recorded in the office of the collector of customs where the vessel is registered or enrolled, which was acknowledged or proved EVIDENCE. 2Y9 before it was recorded, in like manner as a deed to be recorded within the state; or a transcript of such record duly certified by the collector, is evidence with the like effect as the original. . § 946. Conveyance of land iiritliout the state. A conveyance of real property, situate without the state, acknowledged, or proved, and certified, in like manner is a deed to be recorded within the county wherein it is offered in evidence, is evidence, without further proof thereof, as if it related to real property situated within another state. A conveyance of real property, situated within another state, or a territory of the United States, which has been duly authenticated, according to the laws of that state or territory, so as to be read in evidence in the courts thereof, is evidence in like manner. § 947. Exemplification of record of conveyance of land -nritliont the state. An exemplification of the record of a conveyance of real property situated without the state, and within the United States which has been recorded in the state or territory, where the real property is situated, pursuant to the laws thereof, when certified under the hand and seal of the officer, having the custody of the record, is, if the original cannot be produced, presumptive evidence of the conveyance, and of the due execution thereof. § 948. Transcript of docket, etc., of justice of adjoining estate. A transcript from the docket-book of a justice of the peace within an adjoining state, of a judgment rendered by him; a transcript of his minutes of the proceedings in the cause, previous to the judgment; or of an execution issued thereon; or of the return of an execution; when subscribed by the justice, and authenticated as prescribed in the next section, is presumptive evidence of his jurisdiction in the cause, and of the mat- ters shown by the transcript. § 949. Id.; how authenticated. Such a transcript must be authenticated by a certificate of the justice, annexed thereto, to the effect, that it is in all respects correct, and that he had jurisdiction of the cause; and also by a certificate of the clerk or prothontary of the county, in which the justice resided at the time of rendering the judgment, under his hand and seal of the court of common pleas, or other county court of the county, to the effect that the person, subscribing the certificate attached to the transcript, was, at the date of the judgment, a justice of the peace of that county; and that the signature thereto is in his own handwriting. § 950. Other proof. The judgment and other proceedings, and the justice's authority to render the judg- ment, may also be proved, by the production of the docket, or of a copy of the judgment or other proceedings ; and the oral testimony of the justice to the truth and correctness thereof, and to his authority to render the judgment. § 951. Proof may he rehutted. The last three sections do not prevent the Introduction of evidence to controvert any of the proof, in relation to the validity of a judgment therein specified. § 952. Copies of records of courts of foreign conntries; how authenticated. A copy of a record, or other judicial proceeding, of a court of a foreign country, is evidence when authenticated as follows : 280 CIVIL LAW AND PEACTICE. 1. By the attestation of the clerk of the court, with the seal of the court affixed, or of the officer iu whose custody the record is legally kept, under the seal of his office. 2. By a certificate of the chief-judge or presiding magistrate of the court to the effect, that the person, so attesting the record, is the clerk of the court; or that he is the officer, in whose custody the record is required by law to be kept; and that his signature to the attestation is genuine. 3. By the certiiicate, under the great or principal seal of the government, under whose authority the court is held, of the secretary of state, or other officer having the custody of that seal, to the eflfect, that the court is duly constituted, specifying generally the nature of its jurisdiction; and that the signature of the chief- judge or presiding magistrate, to the certificate specified in the last subdivision is genuine. § 953. Other proofs. A copy of a record, or other judicial proceeding, of a, court of a foreign country, attested by the seal of the court, in which it remains, must also be admitted in evidence, upon due proof of the following facts : 1. That the copy oflFered has been compared by the witness with the original, and is an exact transcript of the whole of the original. 2. That the original was, when the copy was made, in the custody of the clerk of the court, or other officer legally having charge of it. 3. That the attestation is genuine. § 954. This article does not declare efFect of record. Nothing in this article is to be construed, as declaring the eflfect of a record or other judicial proceeding of a foreign country, authenticated so as to be evidence. § 955. Public records in New York county. All maps, surveys and official records, which shall have been on record or on file in the office of either the register of the city and county of New York, or the surrogate of said city, or any of the courts of record of said city, or the clerk of the city and county of New York, or any of the departments of said city as enumerated in section thirty-four of the New York city consolidation act, or in the office of the registers, sur- rogates, commissioners of public works, or kindred department, or park department, for a period of twenty years or upwards prior to such trial, shall be presumptive evidence of their contents, and shall be receivable in evidence as such upon any trial in any of the courts of this state in any controversy pending therein, between any parties. § 956. Documents from foreign countries; h.ovr authenticated. A copy of a patent, record or other document remaining of record or on file in a public office of a foreign country, certified according to the form in use in that country, is evidence when authenticated, as follows: 1. By the certificate under the hand and official seal of a commis.sioner appointed by the governor to take the proof or acknowledgment of deeds in that country, to the effect that the patent, record or document is of record or on file in the public office, and that the copy thereof is correct and certified in due form; and 2. By a certificate under the hand and official seal of the secretary of state, annexed to that of the commissioner, to the same effect as prescribed by law for the authenti- cation of the certificate of such a commissioner, upon a conveyance to be recorded within the state. The certificate of the commissioner, thus authenticated, is presumptive evidence that the copy of the patent, record or document is certified according to the form in use in the foreign country; or 3. By a certificate under the hand and official seal of a consular officer of the United States to the effect that the patent, record or document is of record or on file in the EVIDENCE. 281 public office and certified according to the form in use in tlie foreign country, and a copy of a patent, record or other document so authenticated is presumptive evidence that the same is certified according to the form in use in the foreign country. (Amended by L. 1912, ch. 97, in effect April 3, 1912.) § 957. Form, of certificate to copies. Where the transcript, exemplification, or certified copy of a record or other paper, ia declared by law to be evidence, and special provision is not made for the form of the certificate, in the particular case, the person, authorized to certify, must state, in his certificate, that it has been compared by him with the original, and that it is a correct transcript therefrom, and of the whole of the original. § 958. Certificate must be sealed. If the officer, or the court, body, or board, in whose custody an original paper, speci- fied in the last section, is required to be, by the laws of the state, or of another state, or of the United States, or of a territory thereof, or of a foreign country, has, pursuant to those laws, an official seal, the certificate must be attested by that seal. If the certificate is made by the clerk of a county, within the state, it must be attested by the seal of the county. § 959. Qualification of last section. The last section does not require the seal of a court to be affixed to a certified copy of an order, or of a paper filed therein, or entry made, where the copy is used in the same court, or before an officer thereof; or, in the supreme court, where it is used in a circuit court, or a court of oyer and terminer. § 960. Evidence, in actions for recovery of, injury to, etc., unoccupied lands and timber thereon. In all actions to recover the possession of, or otherwise to determine the title to, or, for trespass upon or injury to unoccupied lands, timber, trees or underwood thereon, except an action in which any county or any state or county officer, board or commis- sion is a party defendant, the plaintiff may show an unbroken chain of title or convey- ance of the land to himself for thirty years next preceding the commencement of the action, or if an action for trespass, next preceding the commission of the trespass or injury, and such proof shall be presumptive evidence of ownership at the times respect- ively, of the commencement of such action or commission of such trespass or injury, but such presumption may be rebutted by the defendant by showing ownership of said lands at the times respectively, of the commencement of said action or the commission of said trespass or injury, in some person other than the plaintiff. § 961. Searcbing records in tbe surrogate's offices and certifying in regard thereto. A surrogate's clerk must, upon request, and upon payment of, or offer to pay, the fees allowed by law, or, if no fees are expressly allowed by law, fees at the rate allowed to a county clerk for a similar service, diligently search the files, papers, records, and dockets in the surrogate's office ; and either make one or more transcripts therefrom, and certify to the correctness thereof, and to the search, or certify that a document or paper cannot be found in such office. § 961-a. Determining age of child. Whenever in any proceeding or trial it becomes necessary to determine the age of a child, such child may be produced and exhibited to enable the magistrate, court or 282 CIVIL LAW AND PEACTICE. jury to determine its age by personal inspection; and such court or magistrate may direct an examination by one or more physicians, whose opinion shall also be compe- tent evidence upon the question of such age. § 961-T). Proof of xrritten instrnments where there are subscribing iritnesses. Except in the case of written instruments to the validity of which a subscribing wit- ness, or subscribing witnesses, is, or are necessary, whenever, upon the trial of any action, or upon the hearing of any judicial proceeding, a written instrument is oflFered in evidence, to which there is a subscribing witness, it shall not be necessary to call such subscribing witness, but such instrument may be proved in the same manner as it might be proved if there were no subscribing witness thereto. § 961-c. Proof of payments by a municipal corporation or officer thereof. In any action or proceeding now pending or hereafter to be brought in any of the courts of this state, the payment of any sum of money by a municipal corporation, or an officer thereof, may be proved by a receipt purporting upon its face to be given therefor, and to entitle such receipt to be read in evidence, no further or other proof shall be necessary than that it is produced from the files of the office of the chief finan- cial officer of such municipal corporation, or from the files of the office of the person or department charged with the duty of making the payment. Every such receipt so read in evidence shall be presumptive proof of the fact of the payment to the person by or in whose behalf it purports to be signed of the sum of money and for the purpose therein expressed. But no such receipt shall be entitled to be read in evidence by virtue of the provisions of this section, unless it was given at least six years before the commencement of the action or proceeding in which it shall be offered as evidence. And the date or time appearing upon its face shall be presumptive proof that it was given at such date or time. Nothing in this section contained shall be held to prevent any party to such an action or proceeding from proving affirmatively that the payment so appearing to have been made has not in fact been made. § 961-d. Proof of instrument by submitting disputed and genuine hand- urriting. Comparison of a disputed writing with any writing proved to the satisfaction of the court to be the genuine handwriting of any person, claimed on the trial to have made or executed the disputed instrument, or writing shall be permitted and submitted to the court and jury in like manner g 961-e. Proof of lost execution or xrrit under irhich sheriff's sale of real property vas made. Whenever, upon the trial of an action it shall appear that at least twenty years theretofore real property has been sold by a sheriff for enforcement of the valid lien thereon of a duly docketed judgment, and that a certificate of the sale has been duly made by the sheriff and filed, and that a conveyance in completion of the purchase has been executed and recorded, but that the execution or writ by virtue of which the sale has so been made cannot be found in the office of the clerk with whom the same should have been filed, then and in such case the recital of or reference to such execution or writ contained in the said certificate, or in the said conveyance, or in the record thereof shall be prima facie evidence of the said execution or writ and of the issue of the same as against any party whose claim of title is not shown to have been accompanied or supported by peaceable possession of the premises in controversy for at least three years immediately preceding the commencement of the action. EVIDENCE. 283 § 961-f. Evidence of -weather conditions. Any record of the observations in regard to the conditions of the weather, or in regard to the amount and conditions of the precipitation, taken under the direction of the New York State weather bureau, or any copy thereof, when certified in the form of and pur- suant to law by the officer in charge thereof at the place where such record is duly filed, that the same is a true copy of such record, may be read in evidence in any court in this State, and shall be prima facie evidence of the facts and circumstances therein stated. § 962. Saving clause. Nothing in title fourth of this chapter prevents the proof of a fact, act, record, pro- ceeding, document or other paper or writing, according to the rules of the common law, or by any other competent proof. [The title fourth referred to in the above section embraces sections nine hundred and fifty-seven and nine hundred and sixty-two both inclusive.] 284 CIVIL LAW AND PKAOTICE. CHAPTEE XIV. PEOCEDUBB I3Sr ACTIONS GENEEAILT. Section 1. Application for process. 2. Summons. 3. Order of arrest to accompany summons. 4. Warrant of attachment to accompany summons. 5. Requisition to replevy to accompany summons. 6. Service of summons and accompanying papers. 7. Proceedings upon return day of summons. 8. Oflfer of judgment. 9. Pleadings. 10. Complaint and demurrer to complaint. 11. Answer and demurrer threats. 12. Counter claim. 13. Consequence of neglect to plead counterclaim. 14. Answer of title. 15. Verified pleadings. 16. Amendment of pleadings. 17. Adjournments. 18. Compelling attendance of witnesses. 19. When case triable without jury. 20. Selection of jury. 21. The trial and its incidents. 22. Decision and judgment. 23. Minutes of trial and docket of justice. 24. Executions. 25. Levy and sale under execution. 26. Property exempt from execution. 27. Garnishee of wages or income. § 1. Application for process. Ordinarily the statement made to a justice of the peace of the supposed cause of action of the person requesting the issuing of a summons for the commencement of an action is as strong as the actual facts will war- rant, and is not entirely impartial and unbiased. While the amount involved in the proposed controversy may not be large, the importance of the principle involved is not usually underrated by the party. Difficult and perplexing questions of law are often presented to a justice of the peace for determination that require careful consideration; but these questions are to be determined from the facts presented under oath upon the trial. It is not the time nor the province of the justice to attempt to determine any question likely to arise upon the trial on the application made to him for the summons to commence an action. He will discharge PKOOEDUEE m ACTIONS GENEEALLY. 285 his full duty on that ooca&ion by issuing the procees and assessing the applicant for the legal fees. The justice should never allow himself to become the legal advisor of the proposed plaintiff, or to be influenced in any degree by statements made to him out of court. The party to be sued may have the right of the controversy, and is at least entitled to the unprejudiced judgment of the court when his side of the case is presented. It is always proper for the justice so far to inform himself as to the nature of the proposed action as to enable him to determine whether the cause of action is one of which he has jurisdiction. The question of jurisdiction may depend upon the nature of the action, the amount involved or sought to be recovered or the residence of the parties plaintiff or defendant, but never upon the question whether the facts which the plaintiff may prove will sustain the proposed action. The limitations upon the jurisdiction of a justice of the peace, and the cases in which jurisdiction is expressly conferred, have been considered in a preceding chapter. The justice may also properly consider whether he is disqualified from sitting in or taking any part in the decision of the action by reason of interest therein, or by reason of relationship by consanguinity or affinity to any of the parties within the sixth degree. (Judiciary Law, § 15.) If the justice is disqualified to sit in the cause by reason of consanguinity to one of the parties, he cai^not sit even by consent of both the parties, and if he do, his judgment will be vacated. (Oakley v. Aspinwall, 3 N. Y. 547; People v. Connor, 65 Hun, 392, 20 IST. Y. Supp. 209; People v. McDonough, 8 App. Div. 591, 40 li. Y. Supp. 1147.) The degree of relationship must be ascertained by ascending from the judge to the common ancestor, and descending to the party, counting a degree for each person in both lines, including the judge and party, and excluding the common ancestor. (Judiciary Law, § 15.) If the plaintiff is an infant the justice should appoint a guardian for him before issuing the summons, as provided in section 2887 of the Code. This appointment will be made upon the application of the infant or general guardian. (For form of the application see Form 'No. 5.) The consent of the guardian and the appointment may be as in Form !N'o. 6. § 2. Summons. Every action is commenced by the service of a summons upon the party defendant, or by voluntary appearance and joinder of issue by the parties. (Code Civil Pro., § 2876.) The cases in which the parties voluntarily appear and join issue are exceptional. Ordinarily, the justice, on request and prepayment of his fees (Code Civil Pro., § 3328) prepares a sum- 286 CIVIL LAW AND PEACTICE. mons and copy and delivers the same to the proper officer to be served. A summons is a mandate, and, like aU other mandates issued by the justice, must be signed by him; and must be entirely filled up so as to have no blank either in date or otherwise. (Code Civil Pro., § 3135; Hanna- man v. Muckle, 20 Civ. Pro. E. 296 ; Title Guarantee & T. Co. v. Johnson, 95 Misc. 101, 160 IST. Y. Supp. 189.) The Code prescribes what the sum- mons must contain (Code Civil Pro., § 2877) and the summons should comply with the requirements of the statute. (See Form No. 1.) The omission of the year in the copy served will not invalidate a judgment entered upon the failure of the defendant to appear. {Epstein v. Prosser, 112 N. Y. Supp. 174; Lenham Mercantile Co. v. HerTce, 55 Misc. 310, 105 N. Y. Supp. 472.) But reasonable care will avoid such errors, for a justice's court acquires jurisdiction only through compliance with the statute. The date of the summons is material, and if antedated through error and the plaintiff takes no steps to secure an amendment, the action should be dismissed on the defendant's motion. {Richmond Sales Co. v. Morris, 157 App. Div. 374, 142 N. Y. Supp. 244.) A summons issued December 28, 1907, returnable by error January 7, 1907, may be disre- garded by the defendant, and the court acquires no jurisdiction to render judgment against him. (Epstein v. Prosser, 133 App. Div. 859, 117 K Y. Supp. 1115.) The summons should be made returnable immediately upon the arrest of the defendant within twelve days after the day when it was issued, if accompanied with an order of arrest, but in every other case it must be returnable at a time specified, not less than six nor more than twelve daya after the day when it was issued. It cannot lawfully be made returnable on a legal holiday. (Code Civil Pro., § 2877.) Ordinarily a summons cannot be amended after the commencement of the action. (Gifford v. Fargo, 106 Misc. 599.) § 3. Order of arrest to accompany summons. If at the time the summons is issued the plaintiff applies to the justice for an order for the arrest of the defendant (Code Civil Pro., § 2894) and in support of the application presents to the justice an affidavit show- ing that a sufficient cause of action exists against the defendant and that the case is within the provisions of sections 2894 and 2895 of the Code of Civil Procedure (see Form No. 86), and also presents to the justice the written undertaking to the defendant required by section 2896 of that act (see Form No. 87), the justice must grant the order of arrest. Code Civil Pro., § 2896.) The affidavit must state the facts from which the alleged cause of action PEOCEDUEE I]^ ACTIONS GENEEALLY. 287 arises {Dadirrian v. Whitson, 54 Misc. 54), and also the facts from which the justice may determine that the case falls under one of the subdivisions of section 2894 of the Code. (See Stroub v. Henly, 1 How. N. S. 400.) The facts must be stated and not the mere conclusions of the party or person making the affidavit. (Diad v. Shihley, 49 Misc. 315.) It will not be enough that the facts are stated upon information and belief ; and facts which may be within the knowledge of the affiant must be stated positively ; and where any facts necessarily rest upon information derived from others, they may be so stated, but the sources of the information should be par- ticularly set out and good reasons given why a positive statement cannot be procured. {Bolher v. Gonzalez, 25 App. Div. 96.) If the papers presented to the justice are sufficient to justify the grant- ing of the order, an order containing the matters required by section 2897 of the Code of Civil Procedure should be indorsed upon or attached to the summons and subscribed by the justice, and delivered to a constable or other proper officer for service. (See Code Civil Pro., § 2897. See also Form 'No. 88.) § 4. Warrant of attachment to accompany summons. If the party applying for a summons also applies for a warrant of attachment to accompany it, and in support of his application presents to the justice the affidavit required by section 2906 of the Code (see Form No. 90), and the undertaking required by section 2908 of that act (see Form No. 91), and both the affidavit and the undertaking are sufficient to satisfy the requirements of those sections, the justice must issue the warrant of attachment applied for. (Code Civil Pro., § 2905.) The warrant must be indorsed upon or annexed to the summons ; must be subscribed by the justice ; must briefly recite the ground of the attach- ment; must specify the amount of the plaintiff's demand as stated in the affidavit; and must require the constable to whom the summons is deliv- ered to attach, on or before a day specified therein, which must be at least six days before the return day of the summons, and safely to keep, as much of the defendant's goods and chattels within his county, as will satisfy the plaintiff's demand, with the costs and expenses, and to make return of his proceedings thereon to the justice at the time when the summons is return- able. (Code Civil Pro., § 2907. For the form of the warrant see Form No. 92.) The justice will then deliver the summons and warrant to a constable for service. It is well settled that a court or officer is without jurisdiction to issue a warrant of attachment when the affidavit or affidavits presented to him are 288 CIVIL LAW AND PEACTICE. defective. (Clearwater v. Brill, 61 N. Y. 625; Smith v. Holt, 37 App. Div. 24, 55 ]Sr. Y. Supp. 731; Buppert v. Haug, 87 IST. Y. 141 ; Donnell v. Williams, 21 Hun, 216 ; Murray v. Hemkin, 30 Hun, 37.) It is therefore highly important that the justice should closelj scrutinize the affidavits presented to him in support of the application, and refuse to issue the warrant if the affidavits do not establish the facts upon vphich the right to the warrant depends. All of the facts required by section 2906 of the Code must be shown by affidavit " to the satisfaction of the justice." It is enough if the affidavits presented show such facts to his satisfaction, but there must be some evi- dence. {Ruppert V. Haug, 87 IST. Y. 141, 144.) The satisfaction of the justice must be a legal satisfaction. He is to be convinced. His convic- tion is not to be arbitrary or capricious. It must be brought about by means that are fit and enough to produce conviction in the mind acting judicially. He may no more be satisfied by that which the law will deem inadequate to produce conviction, than he may withhold his satisfaction when that proof is produced to him that the law will say he ought in reason to be satisfied with. (Folliard v. Wallace, 2 Johns. 395 ; People ex rel. Kenyan v. Sutherland, 81 N. Y. 1, 5, 3 Wait's L. & Pr. 102, and cases cited.) For example, if the action is upon a judgment, or to recover for a breach of contract, the plaintiff must show by affidavit, to the satisfaction of the justice, that he " is entitled to recover a sum stated therein over and above all counterclaims known to him." (Code Civil Pro., § 2906.) It is not necessary to follow the very words of the statute in stating the fact above quoted, although the words of the statute furnish the safest formula. But these words or words of like import must appear in the affidavit presented to the justice (Ruppert v. Haug, 87 N". Y. 141 ; Donnell v. Williams, 21 Hun, 216), and it will not be sufficient that the affidavit of an agent or attorney is presented to the justice stating that the plaintiff is entitled to recover a specified sum " over and above all counterclaims known to deponent." It is the knowledge of the plaintiff and not that of an agent or attorney that the Code section requires. (Mitchell v. Anderson, 32 Misc. 13 ; Murray v. HanJcin, 30 Hun, 37 ; Smith v. Arnold, 33 Hun, 484 ; Smith v. Holt, 37 App. Div. 24, 55 IST. Y. Supp. 731. And see Torington v.lfemcX;, 101 KY: 5.) So where the attachment is applied for upon the ground that the defend- ant was " about to assign, dispose of, or secrete his property with intent to defraud his creditors," not only must the facts alleged tend to show such intent (Clearwater v. Brill, 61 N. Y. 625; Franke v. Havens, 102 App. Div. 67), but also, if the facts are stated upon information and belief, the PKOCEDUKE m ACTIONS GENEEALLY. 289 sources of deponent's information S'hould be stated, and the reasons for the failure to procure the affidavit or depositions of the persons from whom the information was derived. (Steuben Co. Bank v. Alberger, 78 N. Y. 252; Smith V. Holt, 37 App. Div. 24; Brandly v. American Butter Co., 130 App. Div. 410.) § 5. Requisition to replevy to accompany summons. Where an action is about to be commenced in a justice's court to recover a chattel, with or without damages for the wrongful taking, withholding or detention thereof, the plaintiff may apply to the justice at the time when the summons is issued, but not afterwards, for a requisition requiring the constable to whom the summons is delivered to replevy the property described in the afEdavit presented to the justice in support of the applica- tion. (Code Civil Pro., §§ 2919, 2920, 2921.) This affidavit must particularly describe the chattel to be replevied, and must contain the following allegations : 1. That the plaintiff is the owner of the chattel, or is entitled to the possession thereof by virtue of a special property therein ; the facts with respect to which must be set forth. 2. That it is wrongfully detained by the defendant. 3'. The alleged cause of the detention thereof, according to the best knowledge, information and belief of the person making the affidavit. 4. That it has not been taken by virtue of a warrant, against the plain- tiff, for the collection of a tax, assessment, or fine, issued in pursuance of a statute of the State, or of the United States ; or, if it has been taken under color of such a warrant, either that the taking was unlawful by reason of defects in the process, or other causes specified or that the detention is unlawful, by reason of facts specified, which have subsequently occurred. 5. That it has not been seized by virtue of an execution or warrant of attachment, against the property of the plaintiff, or of any person from or through whom the plaintiff has derived title to the chattel, since the seizure thereof; or, if it has been so seized, that it was exempt from the seizure by reason of facts specified, or that its detention is unlawful, by reason of facts specified which have subsequently occurred. (Code Civil Pro., §§ 1695, 2920.) Where the affidavit describes two or more chattels of the same kind, it must state the number thereof, and where it describes a chattel in bulk, it must state the weight, measurement or other quantity. Where it describes 19 290 CIVIL LAW ANB PKACTICE. two or more chattels to be replevied, it may, at the election of the plaintiff, state the aggregate value of all ; or, separately, the value of any chattel or class of chattels, and the aggregate value of the remainder, if any. Where it states separately the value of one or more chattels or classes of chattels, the defendant may require, as prescribed in the following provisions of this article, the return of any or all of the chattels or classes of chattels, the value of which is thus stated, or of the portion thereof which has been replevied. If he procures such a return, the remainder must be delivered to the plaintiff, except as otherwise prescribed in this article. (Code Civil Pro., §§ 1697, 2920.) The affidavit may be made by the plaintiff's agent or attorney, if the material facts are within his personal knowledge ; or if the plaintiff is not within the county where the attorney resides or has an office, or is not capable of making the affidavit. Where the affidavit is made by an attorney or agent, he must state therein what allegations, if any, are made upon information and belief; and he must set forth therein the grounds of his belief, as to all matters not stated upon his knowledge and the reason why the affidavit is not made by the plaintiff. (Code Civil Pro., §§ 1712, 2920. See Form No. 96.) An undertaking must also be presented to the justice, executed by at least two sureties, approved by the justice, to the effect that the sureties are bound in a sum specified, not less than twice the value of the chattel as stated in the affidavit, for the prosecution of the action ; for the return of the chattel to the defendant if possession thereof is adjudged to him, or if the action abates or is discontinued before the chattel is returned to the defendant; and for the payment to the defendant of any sum which the judgment awards to him against the plaintiff. (Code Civil Pro., §§ 1699, 2920.) The undertaking must be acknowledged, the affidavit of the sureties as to their residence and property must be appended thereto, and indorsed with the approval of the justice. (For form of the undertaking, see Form No. 97.) Upon receiving the affidavit and undertaking the justice must indorse upon or attach to the affidavit a written requisition, subscribed by him, requiring the constable to whom the summons is delivered to replevy the property described in the affidavit, on or before a day specified in the requisition, which must be at least six days before the return day of the summons. The affidavit and requisition must be delivered to the constable with the summons. (Code Civil Pro., § 2921. For form of requisition, see Form No. 98.) PKOCEDUEE m ACTIONS GENEKALLY. 291 § 6. Service of summons and accompanying papers. If the defendant is a natural person, service of the summons will be made by the constable by delivering a copy of the summons to the defend- ant as provided in section 2878 of the Code. If the action is against the mayor, aldermen and commonalty of the city of New York, by delivering a copy of the summons to the mayor, comptroller or counsel to the corporation. If the action is against any other city, by delivering a copy of the summons to the mayor, treasurer, counsel, attorney or clerk ; or, if the city lacks either of those oiBcers, to the officer performing corresponding functions under another name. (Code Civil Pro., §§ 431, 2879.) If the defendant to be served is any other domestic corporation, or person, company or partnership doing business in another county than that in which he or it resides, the summons may be personally served upon it or him by delivering a copy thereof to the president or other head of the corporation, the secretary or clerk to the corporation, the cashier, the treasurer, director, managing agent or trustee of the corpora- tion, person, partnership or company by whatever official title he or it is called. (Code Civil Pro., §§ 431, 2879.) If the defendant to be served is a railroad corporation, and no officer of the corporation resides in the county to whom a copy of the summons may be delivered, as above pro- vided, personal service may be made as provided in section 2880 of the Code ; and if the defendant to be served is a corporation, association, part- nership or person doing business in the State as an express company, an insurance company, or a tel^raph company, and no person resides in the county to whom a copy of the summons may be delivered, as above pro- vided, personal service may be made as provided in section 2881 of the Code. If the defendant is a foreign corporation, service upon it must be made by delivering a copy of the summons to its president, vice-president, treas- urer, assistant treasurer, secretary, or assistant secretary; or, if the cor- poration lacks either of those officers, to the officer performing correspond- ing functions under another name; or to a person designated for that pur- pose as prescribed in section 16 of the General Corporation Law; or, if such designation is not in force, or if neither the person designated nor any of the above mentioned officers of the corporation can be found with due diligence, and the corporation has property within the State, or the cause of action arose therein, to the cashier, a director, or a managing agent of the corporation. (Code Civil Pro., §§ 432, 2879. And see Duval v. Boston & Maine B. R. Co., 58 Misc. 504.) If a verified complaint is to be served with the summons it will be attached thereto and delivered to the constable for service. (Code Civil 292 CIVIL LAW AND PEACTICE. Pro., § 2936.) Service will be made by delivering to the defendant a copy of the summons and complaint attached. If an order of arrest accompanies the summons the constable, at the time of serving the summons, will execute the order by arresting the defendant and taking him forthwith before the justice who issued it, or, if he is absent, or unable to try the action, before another justice of the same town or city. (Code Civil Pro., § 2898.) The constable will then deliver to the justice the order, and a written return thereto, under his hand, stating the manner in which he has executed it, and either that he has notified the plaintiff^ or that he could not do so with reasonable diligence. (Code Civil Pro., § 2899.) If a warrant of attachment has issued, the constable should first execute the warrant in the manner prescribed by section 2909 of the Code, then serve the summons and warrant upon them as prescribed in section 2910, and make his return as prescribed in section 2915 of that act. If a requisition to replevy chattels has been placed in the hands of the constable at the time of issuing the summons, he should first execute the requisition by replevying and taking into his possession any chattel described in the affidavits found in the possession of the defendant. If any chattel described in the affidavit is secured or concealed in a building or inclosure, the constable should publicly demand its delivery, and if it is not delivered pursuant to the demland he should cause the building or in- closure to be broken open, and then take the chattel into his possession (Code Civil Pro., §§ 1700, 1701, 2922), and then serve the summons, affidavit and requisition as prescribed in section 2910 of the Code (Code Civil Pro., § 2922), and make his return as required by section 2923. Por forms of returns of service of summons, see Forms Nos. 2, 3 and 4. (See Code Civil Pro., § 2885.) Where a verified complaint was attached to the summons the constable's return should show that service was made upon the defendant by delivering to and leaving with him personally true copies thereof, at a place within the county, and at a time specified, which should not be less than six nor more than twelve days before the return day of the summons. (Code Civil Pro., § 2936. See Syracuse Molding Co. v. Squires, 61 Hun, 48, 15 N". Y. Supp. 321.) It is not essential that the place of service be stated, as it will be presumed that it was served within the county. {Beach v. BaJcer, 25 App. Div. 9, 48 K Y. Supp. 1042.) A return of service is essential to the jurisdiction of the justice. (Moore v. Taylor, 88 App. Div. 4.) PROCEDUKE IN ACTIONS GENERALLY. 293 § 7. Proceedings upon return day of summons. Upon the return of a summons duly served, the justice must wait one hour after the time specified therein for its return, unless the parties sooner appear. (Code Civil Pro., § 2893.) A party, who is of full age, who has not been judicially declared incom- petent to manage his affairs, may appear and prosecute or defend the action in person or by attorney, as he may elect. (Code Civil Pro., § 2886.) If the defendant is an infant no further proceedings can be taken in the action until a guardian has been appointed for him for the purposes of the action as provided in section 2888 of the Code. The defendant may nomi- nate the person to act as such guardian. (For form of the application, see Form No. Y.) If the defendant does not appear upon the return of the summons, or if he neglects or refuses to nominate, the justice may appoint any proper person as guardian for the infant defendant on the application of the plaintiff. (See Form No. 8.) If the plaintiff or defendant appears by attorney, his authority to so appear must be proved unless admitted by the adverse party. (Code Civil Pro., § 2890.) If the defendant is in court in custody of the constable under an order of arrest issued in the action, he may move, on the appearance of the plain- tiff, upon the papers upon which the order was granted, for an order dis- charging him. from arrest. If it appears upon the argument of the motion that the papers upon which the order was granted fail to show a case within the provisions of sections 2894 and 2895 of the Code, the justice must grant the application, and make an order discharging the defendant from arrest. (Code Civil Pro., § 2901.) Such discharge will not affect the jurisdiction of the justice over the action, which must proceed as if com- menced in the ordinary manner. (Code Civil Pro., § 2902.) So if the constable has returned that he has notified the plaintiff of the arrest of the defendant, and the plaintiff fails to appear within one hour after the defendant has been brought before the justice, a judgment of nonsuit must be rendered. (Code Civil Pro., § 2899.) In no ease can the defendant be detained in custody beyond twelve hours from the time when he was brought before the justice, unless within that time a venire is issued, or the trial of the action is commenced, or is delayed with the express assent of the defendant. (Code Civil Pro., § 2900.) So a defendant, whose property has been attached, may, upon the return day of the summons, apply to the justice to vacate the warrant of attach- ment, or modify it, or increase the plaintiff's security. This application may be founded upon the papers upon which the warrant was granted, or upon proof by afiidavit on the part of the defendant, or upon both. If it is founded upon proof on the part of the defendant, it may be opposed by new 294 CIVIL LAW AND PRACTICE. proof by affidavit on the part of the plaintiff tending to sustain any ground for the attachment recited in the warrant, but no other. The justice may, on the return of the summons, or at any other time to which the action is adjourned, vacate the warrant of attachment upon his own motion if he deems the papers upon which it was granted insufficient to authorize it. (Code Civil Pro., § 2916.) In fact, it is the duty of the justice to grant such motion on the part of the defendant whenever made, whether upon the return day of the summons or upon a day to which the cause has been adjourned, or upon his own motion when his attention is called to the fact that the affidavits upon which the warrant was granted did not state facts sufficient to give him jurisdiction to issue the warrant. {Franke v. 'Havens, 102 App. Div. 67.) If the defendant was not served with the summons, it is advisable that he appear specially for the purpose of making this motion. If the defendant has appeared generally in the action, or if the summons was served personally upon him, or where judgment may be taken against him as being indebted jointly with another defendant who has been thus summoned or has thus appeared (see Code Civil Pro., § 3020), the justice may proceed to hear and determine the action although he has vacated the warrant of attachment. But in every other case the justice, on vacating a warrant of attachment against the property of a defendant must dismiss the action as to him. (Code Civil Pro., § 2917.) Where the defendant has not appeared, and the summons has not been personally served upon him, and his property has been duly attached by virtue of a warrant which has not been vacated, the justice must proceed to hear and determine the action. (Code Civil Pro., § 2918.) If the action is brought to recover a chattel, and the defendant does not appear, and the summons has not been personally served upon him, and a chattel, or part of a chattel, to recover which the action is brought has been replevied, and the proceedings thereupon have been duly taken as pre- scribed in article fifth of title second of chapter nineteen of the Code, the justice must proceed to hear and determine the action with respect to that chattel; or, if the action is brought to recover two or more chattels, with respect to those which have been replevied ; in like manner and with like effect as if the summons had been personally served. (Code Civil Pro., § 2932.) And where the summons has been personally served upon the defendant, or where he appears, the justice must proceed to hear and determine the action although the plaintiff has not required the chattel to be replevied or the constable has not been able to replevy it. (Code Civil Pro., § 2933 ; Bame v. Seyhara, 77 Hun, 529, 28 N. Y. Supp. 930 ; Young v. Carey. 29 Misc. 278, 61 IST. Y. Supp. 508 ; Guyon v. Booney, 6 N. Y. Supp. 99.) PEOCEDUEE IN ACTIONS GENEEALLY. 295 Where a chattel has been replevied, and the defendant does not require its return, and has given notice that he e^xcepts to the plaintiff's sureties, they must justify upon the return of the summons, or a new undertating must be given with other sureties who must then appear and justify. (Code Civil Pro., § 2924.) And where the defendant does not except to the plaintiff's sureties, and has served upon the justice a notice that he requires the return of the chattel replevied, and with the notice has delivered to the justice the required'affidavit and undertaking, the sureties in the under- taking must justify before the justice on the return of the summons. (Code Civil Pro., § 2925.) The affidavit to be delivered to the justice with the notice must contain an allegation, either that the defendant is the owner of the chattel, or that he is lawfully entitled to the possession thereof by virtue of a special property therein, the facts with respect to which must be set forth ; while the undertaking delivered to the justice must be executed by at least two sureties to the effect that they are bound in a specified sum, not less than twice the value of the chattel as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if delivery thereof is adjudged, and for the payment to him of any sum which the judgment awards against the defendant. (Code Civil Pro., §§ 1704, 2925 ; Barton v. Donnelly, 6 Misc. 473.) Each of the sureties must be a resident of the State and a householder or freeholder therein; must be worth the sum specified in the undertaking exclusive of property exempt from execution, unless the justice allows several sureties to justify in sums less than that specified in the undertaking but in the aggregate amounting to the required sum ; and each must attend before the justice on the return day of the summons and be examined on oath touching his sufficiency in such manner as the justice in his discretion thinks proper. If the justice finds the sureties sufficient he will annex the examination to the under- taking, indorse his allowance thereon and file it. (Code Civil Pro., §§ 5T9, 580, 581, 2926 ; Barton v. Donnelly, 6 Misc. 473.) If both parties appear before the justice on the return day of the sum- mons they will proceed to join issue (Code Civil Pro., § 2974), and either proceed to trial or adjourn the cause to a day specified. If the defendant does not appear or neglects or refuses to plead, the plaintiff must prove his case, unless the action was commenced by the service of a summons and verified complaint, in which case the justice will file the summons and complaint and,proof of service, and enter judgment for the ^aintiff -against thff~defendant for the amount demanded in the complaint, with costs, without further proof. (Code Civil Pro., §§ 2891, 2936, 2988.) 296 CIVIL LAW AND PKACTICE. § 8. Offer of judgment. Except where the action is to recover a chattel, a defendant who mentally concedes his liability to judgment against him for a definite sum, less than the plaintiff's claim, may well consider the advisability of filing with the justice, before answering, an offer to allow judgment to be taken against him for that or other specified sum, with costs, as provided in section 2892 of the Code. (See Form No. 60.) If the plaintiff files an acceptance of the offer with the justice (Form ISTo. 61) judgment will be rendered accordingly. (Form No. 62.) If the offer is not accepted the only effect of the offer and failure to accept it is upon the costs subsequent to the offer should the plaintiff fail to obtain a more favorable judgment. (See South- ard V. Becker, 15 Misc. 436, 37 N. Y. Supp. 927.) A verbal acceptance entered in the docket-book is suflScient. (Beecher v. Kendall, 14 Hun, 327.) § 9. Pleadings. Subject to two exceptions, the pleadings in a justice's court may be oral or written. If the pleading is oral, its substance must be entered by the justice in his docket-book; if it is written, it must be filed by him, and a reference to it made in his docket-book. (Code Civil Pro., § 2940.) One exception to the rule permitting all pleadings in this court to be oral, at the option of the pleader, is where an answer is interposed to a verified complaint, as in that case the answer must be in writing and verified. (Code Civil Pro., § 2938.) The other exception is'where the defendant sets forth in his answer facts showing that the title to real property will come in question, and such answer must be in writing and signed by the defendant, his attorney or agent. (Code Civil Pro., § 2951.) The authorized pleadings are the plaintiff's complaint ; the defendant's answer; the defendant's demurrer to the complaint, or to one or more distinct causes of action separately stated therein; and the plaintiff's demurrer to one or more counterclaims stated in the answer. Code Civil Pro., § 2935.) A pleading in a justice's court is not required to be in any particular form, but must be so expressed as to enable a person of common understand- ing to know what is intended. (Code Civil Pro., § 2940.) Technical precision in matters of form is not required ; and even in matters of sub- stance great liberality is allowed. The courts uniformly construe these pleadings liberally. (Totman v. Drake, 52 Misc. 60, 102 N. Y. Supp. 379 ; Boss v. Hamilton, 3 Barb. 609 ; Willard v. Bridge, 4 Barb. 361 ; Evans v. Williams, 60 Barb. 346 ; Knallakan, 47 Hun, 117.) A pleading is sufficient which informs the adverse party of the true cause of complaint, PKOOEDUEE m ACTIONS GENEEALLY. 297 or matter of defense, so that the parties may go to trial understandingly and without danger of surprise. {Willard v. Bridge, 4 Barb. 361.) The Code furnishes a simple formula which may be adopted for the purpose of setting forth a cause of action, defense, or counterclaim, founded upon an account, or upon an instrument for the payment of money only (Code Civil Pro., § 2941), and has also furnished a substitute for a copy account or bill of particulars. (Code Civil Pro., § 2942.) The only relief in a justice's court against a defective pleading is a demurrer; the justice has no authority to entertain a motion to strike out an answer or counterclaims contained therein. (McFee v. Van Dehoe, 160 ISr. Y. Supp. 716.) § 10. Complaint and demurrer to complaint. A complaint must state in a plain and direct manner the facts constitut- ing the cause of action. (Code Civil Pro., § 2936.) If the complaint, or any distinct and separate cause of action stated therein, is not sufficiently explicit to be understood, and by that is meant sufficiently explicit to fairly inform the defendant upon what the cause of action is based {Village of Cortland v. Howard, 1 App. Div. 131, 37 'N. Y. Supp. 843), or, if it does not state facts sufficient to constitute a cause of action, it may be demurred to by the defendant. (Code Civil Pro., § 2939.) A demurrer to the complaint raises an issue of law as to the sufficiency of the complaint as a pleading, and this issue is to be decided by the justice before further pro- ceedings are had in the action. (See Cashman v. Reynolds, 123 !N", Y. 138, 141.) If the justice deems the demurrer well founded he must permit the complaint to be amended, and if the plaintiff fails to amend, the defective pleading, or part of the pleading demurred to, must be disregarded. If the justice deems the demurrer not well founded, he must permit the defend- ant, at his election, to plead over, or, in other words, to answer the com- plaint. (Code Civil Pro., § 2939.) For the form of a demurrer, see Form No. 32. For forms of complaints, see Forms ISTos. 8-31. § 11. Answer and demurrer thereto. The defendant's answer may contain a general denial of each allegation of the complaint, or a specific denial of one or more or the material allega- tions thereof ; and it may also set forth in a plain and direct manner, new matter constituting one or more defenses or counterclaims. (Code Civil Pro., § 2938.) If it is not sufficiently explicit to be understood, or if it fails to state facts sufficient to constitute a counterclaim, the plaintiff may demur to the answer, or part of the answer, deemed defective in the above particulars, with the same general effect as on demurrer to the complaint. 298 CIVIL LAW AND PKACTICE. (Code Civil Pro., § 2939.) No demurrer to an. answer is permissible unless it be to a counterclaim therein pleaded. (Code Civil Pro., § 2935 ; Nash v. Spntigstead, 72 Hun, 474, 25 IST. Y. Supp. 279 ; Singer V. Effler, 16 Misc. 334, 39 IST. Y. Supp. 720; Boyce v. Perry, 26 Misc. 355.) By the term " new matter," as applied to a defense or counterclaim, is meant facts outside the issues that are or may be raised by a denial ; and by " defense," an allegation of facts which, if the complaint be taken as true in all particulars, nevertheless defeats the action. (Frank v. Miller, 116 App. Div. 855 ; StroocTc Plush Co. v. Talcott, 129 App. Div. 14.) A counterclaim is a statement in an answer of a cause of action in favor of the defendant, or one of several defendants, against the plaintiff, or, in a proper case, against the person whom he represents. (Code Civil Pro., §§501,2945.) Por the form of an answer containing a general denial, defense, and counterclaim, see Form No. 33. § 12. Counterclaim. Every counterclaim must be of such a nature that a justice's court has jurisdiction of the cause of action founded thereon {Cragin v. Lovell, 88 N. Y. 258, 263; Code Civil Pro., § 2945) and must tend in some way to diminish or defeat the plaintiff's recovery, and must be one of the follow- ing causes of action against the plaintiff, or, in a proper case, against the person whom he represents, and in favor of the defendant, or of one or more defendants between whom and the plaintiff a separate judgment may be had in the action. 1. A cause of action, arising out of the contract or transaction, set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action. 2. In an action on contract, any other cause of action on contract, exist- ing at the commencement of the action. (Code Civil Pro., §§ 501, 2945.) The first subdivision of section 501 does not limit the right of a defend- ant to interpose counterclaims to an action brought on a contract, but gives the right to interpose counterclaims in an action brought to recover dam- ages for a tort, if the causes of action set out in the complaint and in the answer arise out of the same contract or transaction or relate to the same subject. Nor does the subdivision provide that the cause of action set up as a counterclaim must arise out of a contract, but it authorizes the inter- position of causes of action arising out of torts as counterclaims. The theory of the Code Is to authorize all connected causes of action, whether PKOCEDUKE IN ACTION'S GENEKALLY. 299 arising out of contracts or torts, to be litigated in the same action But a tort cannot be the subject of a counterclaim, -where it does not arise out of, or is not connected with the plaintiff's cause of action, or, in other words, with the fact constituting the plaintiff's cause of action. (Rothschild v. Pittman, 132 N. Y. 472 ; Rochester Did. Co. v, O'Brien, 72 Hun, 462 ; Ter Eule v. Marsland, 81 Hun, 420 ; Davis v. Aikin, 85 Hun, 554.) And in a tort action, a counterclaim on contract is improper in the absence of an allegation that it arose out of the same transaction. (Smith v. Rensselaer Creamery Co., 131 App, Div. 387, 115 N. Y. Supp. 273.) But the counterclaim specified in subdivision second of section 501 is subject to the following rules : 1. If the action is founded upon a contract, which has been assigned by the party thereto, other than a negotiable promissory note or bill of ex- change, a demand, existing against the party thereto, or an assignee of the contract, at the time of the assignment thereof, and belonging to the defend- ant, in good faith, before notice of the assignment, must be allowed as a counterclaim, to the amount of the plaintiff's demand, if it might have been so allowed against the party, or the assignee, while the contract belonged to him. 2. If the action is upon a negotiable promissory note or bill of exchange, which has been assigned to the plaintiff after it became due, a demand, existing against a person who assigned or transferred it, after it became due, must be allowed as a counterclaim, to the amount of the plaintiff's demand, if it might have been so allowed against the assignor, while the note or bill belonged to him. 3. If the plaintiff is a trustee for another, or if the action is in the name of a plaintiff, who has no actual interest in the contract upon which it is founded, a demand against the plaintiff shall not be allowed as a counter- claim ; but so much of a demand existing against the person whom he repre- sents, or for whose benefit the action is brought, as will satisfy the plain- tiff's demand, must be allowed as a counterclaim, if it might have been so allowed in an action brought by the person beneficially interested. (Code Civil Pro., §§ 502,2945.) In an action against an executor or an administrator, or other person sued in a representative capacity, the defendant may set forth, as a counter- claim, a demand belonging to the decedent, or other person whom he repre- sents, where the person so represented would have been entitled to set forth the same in an action against him. (Code Civil Pro., §§ 505, 2946.) In an action brought by an executor or administrator in his representa- tive capacity, a demand against the decedent, belonging, at the time of his death, to the defendant, may be set forth by the defendant as a counter- 300 CIVIL LAW AND PRACTICE. claim, as if the action had been brought by the decedent in his lifetime; and, if a balance is found to be due to the defendant, judgment must be rendered therefor against the plaintiff in his representative capacity. Execution can be issued upon such a judgment only in a case where it could be issued upon a judgment in an action against the executor or administrator. (Code Civil Pro., §§ 506, 2946.) But whether the action is against a person sued in a representative capacity, or is in favor of an executor or administrator, the defendant cannot take judgment against the plaintiff upon a counterclaim for a sum exceeding two hundred dollars. (Code Civil Pro., § 2946.) § 13. Consequence of neglect to plead counterclaim. Section 2947 of the Code, as qualified by section 2948 of that act, speci- fies the cases in which the neglect of the defendant to plead a counterclaim, in an action to recover damages upon or for a breach of contract, will forever thereafter preclude him, and every person deriving title thereto through or from him, from maintaining an action to recover damages for a like cause which might have been allowed to him upon the trial of the action. The application of this section is limited to " actions to recover damages upon or for a breach of contract." (Clift v. Mercer, 79 App. Div. 369, 79 ISr. Y. Supp. 622; Davis v. AiUn, 85 Hun, 554, 33 N. Y. Supp. 103.) Where judgment is taken by default upon a promissory note, and it appears that services rendered by the defendant should have been applied upon the note, and that the value of the services were in dispute, the defend- ant may maintain an action to recover the value of his services nothwith- standing his neglect to appear in the action upon the note and to plead his counterclaim. {White v. Curtis, 49 Misc. 50.) A failure to properly plead as a counterclaim a cause of action which the defendant has against the plaintiff may be clearly prejudicial to the defendant in the pending action whether he would be barred from main- taining another independent action thereon or otherwise. It is generally advisable when practicable to settle all differences between parties in a single action; and it is always important in framing an answer to care- fully distinguish between what is properly a matter of defense to the plaintiff's action and what is a matter properly to be presented by way of counterclaim. When a defendant has an election to set up a cross claim of any kind to diminish or overcome the claim of the plaintiff, or to bring an inde- pendent action thereon, it necessarily follows that such claim, if asserted, must be set up as a counterclaim in the action, whether it constitutes what was formerly denominated a recoupment, or it is any other claim coming PEOOEDUEE IN" ACTIONS GENEEALLY. 301 ■within the Code definition of a counterclaim. The right to recoup, as known under the old practice, means simply the right to plead a counter- claim under the Code. If a counterclaim is relied upon, it must be alleged in the answer and not left to inference. Eecoupment in an action upon contract always implies that the plaintiff has a cause of action, hut the defendant alleges that he, too, has a cause of action growing out of the breach of some other part of the contract upon which the action is founded, or for some other cause connected with the contract, and it is in the nature of a cross action. The failure of the plaintiff to strictly per- form his contract may give to the defendant a right to recoup the damages resulting from such failure, if pleaded as a counterclaim, although the same matter would, under the circumstances of the case, be unavailing if pleaded as a defense. A defendant by omitting to assert a claim to recoup or counterclaim his damages in his answer, must be presumed to have elected not to allow such damages in reduction or extinguishment of the plaintiff's claim. {Beeves & Son v. Manhattan Life Ins. Co., 195 N. Y. 324.) § 14. Answer of title. Where a written answer, signed by the defendant, his attorney or agent, setting forth facts showing that the title to real property will come in question, is delivered to the justice (see Form No. 34), with the undertaking required by section 2952 of the Code (see Form No. 35), the justice must thereupon countersign the answer, and deliver it to the plaintiff. (Code Civil Pro., § 2951.) This discontinues the action and each party must pay his own costs. (Code Civil Pro,, § 2954.) If such undertaking is not delivered to the justice he will proceed with the trial, and the defendant will be precluded in his defense from drawing the title in question, (Code Civil Pro., § 2955; SteeniurgJi v, McBorie, 60 Misc. 510.) But if it appears upon the trial from the plaintiff's own showing, that the title to real property is in question, and the title is disputed by the defendant, the justice must dismiss the complaint with costs, and render judgment against the plaintiff accordingly. (Code Civil Pro., § 2956; Lane v. Young, 66 Hun, 563; 21 N. Y. Supp. 838.) If the complaint sets up two or more causes of action, the defendant may interpose this defense to one or more, and deliver the answer and undertaking with respect to such causes, in which case the justice will discontinue the action as to such causes, and proceed with the action as to the others. (Code Civil Pro., § 2958.) The answer of title to land may be' interposed upon an adjourned day by way of amendment to the original answer, with the same effect, if the 302 CIVIL LAW AND PKACTICE. proper undertaking is also delivered to the justice, as where interposed at the time of joining issue. {^Barnard v. Clark, 33 Misc. 330.) A plea of title means an unequivocal assertion by the defendant of title to the premises of some part thereof, and not a mere denial of the plaintiff's ownership. {People ex rel. Hill v. Kelsey, 82 Misc. 491, 144 N. Y. Supp. 135.) To oust the justice of jurisdiction, the plea of title must state the " facts " showing that a question of title is involved. {Bose v. Purcell, 64 Misc. 674, 120 E". Y. Supp. 860.) In a summary proceeding to recover premises, the question of title does not arise. In such a pro- ceeding, the issue is whether the relation of landlord and tenant exists. {People ex rel. Hill v. Kelsey, 82 Misc. 491, 144 IS. Y. Supp. 135.) Where the pleadings do not show that the title to real estate is in issue, the mere statement of the defendant that he disputes the title of the plaintiff, where the defendant has not filed the required answer and undertaking, does not disturb the jurisdiction of the justice. {Doughty V. Kingsley, 69 Misc. 142.) § 15. Verified pleadings. The features peculiar to a verified complaint in an action pending in a justice's court are that the authorized use of such pleading is limited to an action on contract for the recovery of money only, or on an account; that the complaint is served with the summons instead of being interposed on the joinder of issue; that it is required to be in writing; that it must specify the amount actually due to the plaintiff from the defendant; that it must pray judgment for the sum so due; that it must be signed by the defendant or his agent, and verified ; and that in case the defendant fails on the return day of the summons to interpose a written verified answer to the complaint he will be deemed to have admitted its allegations as true, and upon the filing of the summons and complaint and due proof of service, the justice must enter judgment for the plaintiff and against the defendant for the amount demanded in the complaint, with costs, with- out further proof. (Code Civil Pro., §§ 2891, 2936, 2938.) The official certificate of the constable making such service is sufficient proof of service. (Code Civil Pro., § 2936.) A demurrer to the complaint by the defendant's attorney will not operate as an admission of service of the complaint so as to authorize judgment by default without common law proof. {International Seed Co. v. Hartmann, 65 App. Div. 478, 72 N". Y. Supp. 943.) The complaint must follow the requirements of section 2936 and specify the amount actually due and demand judgment for such amount ; if the complaint is not sufficient, judgment cannot be taken with- out proof of the cause of action. {Moneyweight Scale Co. v. Price, 92 PKOCEDUKE IN ACTIONS GENEKALLY. 303 Misc. T30, 157 N. Y. Supp. 463.) The statute applies only to actions arising on contract for money only or on an account, and not to an action for the wrongful killing of a dog. (Collinson v. Wier, 91 Misc. 501, 154 N. Y. Supp, 951.) If the verification is not suf&cient, the justice cannot enter judgment for the plaintiff without proof of his claim. {Embalmers Supply Co. V. Bowe^ 101 Misc. 117.) The affiidayit of verification must he to the effect that the pleading is true to the knowledge of the deponent except as to the matters therein stated to be alleged on information and belief, and as to those matters he believes it to be true. And where it is made by a person other than the party he must set forth in the affidavit, the grounds of his belief, as to all matters not. stated upon his knowledge, and the reason why it is not made by the party (Code Civil Pro., §§ 526, 2936), and should show that the informa- tion stated as the grounds of belief was derived from some person who had knowledge of the facts. (Nelson v. Baruch, 60 Misc. 357.) The answer to a verified complaint must also be in writing and verified in the same manner as the complaint. (Code Civil Pro., § 2938.) If the defendant files an unverified answer to a verified complaint, the plaintiff is entitled to judgment without further proof. {Carter v, Boyle, 57 Misc. 564.) A verified complaint or a verified answer may be demurred to upon the same grounds and in the same manner as an unverified pleading. (See Code Civil Pro., § 2939.) The fact that the defendant appears on the return day, and the plaintiff does not appear, does not affect the right of the plaintiff to judgment upon his verified complaint and proof of service, filed with the justice, where the defendant does not file a verified answer. (Lent v. Mayer, 45 Misc. 139.) A plaintiff appearing by attorney is entitled to judgment on default of the defendant regardless of whether the appearance is authorized. {Pitts v. Francis, 163 App. Div. 787, 149 N. Y. Supp. 271.) If the affidavit of verification to the complaint contains no venue, the verification is a nullity, the defendant has the right to file an unverified answer, and the plaintiff must prove his case in order to recover. {Ameri- can Book Co. V. Watson, 24 Misc. 524. And see Rohvnson v. Cooper, 62 Misc. 517.) § 16. Amendment of pleadings. A justice of the peace has not only the power but it is Ms duty to allow an amendment of a pleading before trial or on the trial if substantial justice will be promoted by the amendment. (Code Civil Pro., § 2944; Walsh v. Comett, 17 Hun, 27; Wood v. Shultis, 4 Hun, 309), and even 304 CIVIL LAW AND PRACTICE. though it may involve a new cause of action or a new defense {HawTces V. Burke, 34 Misc. 189), or change the action from contract to tort. {Oney V. Pamfrey, 54 Misc. 171.) § 17. Adjournments. The necessity for the adjournment of a trial may appear at the time of the return of the summons, or at a subsequent stage of the action. It may arise from the fact that on the return day the justice is engaged in the trial of another action or proceeding, or is otherwise unable to pro- ceed with the trial; or it may arise from the fact of the absence of some material witness for a party on that or a subsequent day without whose testimony such party cannot safely proceed to trial. So where, upon a trial, a warrant of attachment is issued to compel the attendance <5f a witness who has failed to appear in obedience to a subpoena, the justice may, in his discretion, adjourn the trial for such time as he deems neces- sary for the return of the warrant, not exceeding five days. ( Code Civil Pro., § 2967; Fish's Eddy Chemical Go. v. Stevens, 92 Hun, 179, 36 N. Y. Supp. 397.) An adjournment may also be granted where a commission is issued upon the application of the plaintiff for the examination of a witness (Code Civil Pro., § 2983), or where an adjournment is rendered neces- sary by an amendment of the pleadings (Code Civil Pro., § 2944), or where a venire is issued (Code Civil Pro., §§ 2991, 2997), or where a witness for a party attending before the justice is committed to jail for refusal to be sworn, or to answer a pertinent and proper question, or to produce a book or paper (Code Civil Pro., § 3003), or where an attach- ment is issued against defaulting jurors. (Code Civil Pro., § 2996.) The justice may adjourn a trial upon his own motion at the time of . the return of the summons, unless the defendant has been arrested (Code Civil Pro., § 2959), but cannot so adjourn the trial before issue joined , unless the parties otherwise agree, or the defendant neglects to plead. (Duel V. Syhes, 59 Hun, 117, 13 N. Y. Supp. 166.) He is not authorized by section 2959 of the Code to grant a second adjournment of his own motion. (Matter of McKinney, 16 App. Div. 63), but is authorized by section 2997 of that act to adjourn the trial of his own motion where a venire has been delivered to a constable for service as in that section pro- vided. He may hold a case open a reasonable time for the appearance of a party who he knows will appear, but a six-hour indulgence of this nature is not reasonable. (Blowers v. Malone, 75 Misc. 396, 135 N". Y. Supp, 535.) The justice may adjourn the trial of an action, at the time of the return PKOOEDUEE IIT ACTIONS GEN^EEALLY. 305 of tlie summons, upon the application of the plaintiff, to enable him to obtain some material testimony or witness. (Code Civil Pro., § 2960.) The plaintiff is not entitled as a matter of right to an adjournment on the return of the summons or of the joinder of issue unless he makes oath, when required by the defendant, that he cannot for the want of some material testimony or witness, specified by him, safely proceed to trial. An adjournment may also be had on the application of the plaintiff where the defendant has been allowed to amend his answer after joinder of issue, or has pleaded over after the overruling of a demurrer to the complaint, and the plaintiff has made it to appear to the satisfaction of the justice, by oath, that an adjournment is necessary in consequence of the amend- ment or pleading over. (Code Civil Pro., § 2944.) So where a com- mission is granted on the application of the plaintiff, he is entitled to one or more adjournments of the trial as may be necessary to procure the commission to be executed and returned, not exceeding the length of time for which the trial might be adjourned upon the application of the defendant. (Code Civil Pro., § 2983.) The plaintiff may have an adjournment of the trial upon his application where a new venire has been issued, as provided in section 2997 of the Code; or where one of his material witnesses has been committed to jail for refusing to be sworn, or to answer a pertinent and proper question, or neglects or refuses to pro- duce a book or paper in compliance with a subpoena, or order. (Code Civil Pro., § 3003.) Under section 2960 of the Code an adjournment can be granted at the plaintiff's request only upon the return day of the summons or the time when the parties voluntarily appear and join issue {Moody v. Becker, 70 1^. Y. Supp. 543; Moore v. Taylor, 88 App. Div. 4; Stoutenhurg v. Humphrey, 9 App. Div. 27 ; and see Wright v. Shepherd, 4:4^ Misc. 454, 90 N". Y. Supp. 154; Burhanhs Hardware Co. v. Henhel, 78 N. Y. Supp. 365 ; Newman v. Woodcock, 16 Misc. 12, 38 IST. Y. Supp. 957), and except as above noted, a plaintiff is entitled to but one adjournment on his own application, unless by consent of the defendant. (Aberhall v. Roach, 11 How. 95; Bedford v. Snow, AG Hun, 370; Crisp v. Bice, 83 Hun, 465; Morris v. Hays, 14 App. Div. 8, 43 N. Y. Supp. 930.) A defendant is not supposed to know what cause of action he will be called upon to defend until the plaintiff has presented his complaint, and that consequently he may be wholly without the testimony or witnesses necessary to his defense. It is, therefore, made obligatory upon the justice to grant the defendant's application for an adjournment made at the joinder of issue upon complying with the requirements of section 2961 of the Code, by showing by his oath, or that of his attorney, that he verily 20 306 CIVIL LAW ANT) PKACTICE. believes that the defendant has a good defense to the action, and that he cannot safely proceed to trial for want of some material testimony or witness specified by him, and also by giving an undertaking of the character and effect specified in section 2962 of that act. (For the form of an affidavit on the application for an adjournment see Form No. 38 ; and for form of the undertaking required either under section 2962 or section 2963, see Eorms Nos. 36 and 37.) The adjournment granted to a defendant under section 2961 is not limited to eight days, but may be for such time as the justice deems reasonable. (Molinshi v. Burnett, 152 App. Div. 428, 137 N. Y. Supp. 259.) A defendant is not entitled to an adjournment where he does not make the affidavit required by section 2961, but merely presents a doctor's certificate that he is ill and cannot attend. (Sloan \. Dickey, 68 Misc. 593, 124 IST, Y. Supp. 609.) The defendant is entitled to an adjournment at the time of joining issue without first making oath or filing security if neither are required by the plaintiff or the justice. But if the plaintiff opposes the adjournment and insists that the defendant shall make the proof and give the undertaking which the statute requires in such case, the granting of such adjournment without such proof and security will be a fatal error. (Peck v. Andrews, 32 Barb. 445.) A second or subsequent adjournment on the application of the defend- ant may be granted as provided in section 2965 of the Code upon his compliance with the requirements therein prescribed as to proof of neces- sity and the furnishing of security. The justice has no power to adjourn the trial on the application of the defendant, based upon the failure of the plaintiff to serve and file a bill of particulars. (Smith v. Denton, 119 App, Div. 49.) In a case involving the good faith of the party making the application the granting or refusing it rests in the sound discretion of the justice. (Bush v. Weeks, 24 Hun, 545.) When it is made to appear to the satisfaction of the justice that the presence of the defendant is actually needed at home by reason of the dangerous illness of a member of his family, an adjournment should be granted. (Rose v, Stuyvestant, 8 Johns. 426.) An adjournment may also be granted upon the application of the defendant when made necessary by an amendment of the complaint (Code Civil Pro., § 2944), or where a new venire is issued (Code Civil Pro., § 2997), or where a witness for the defendant refuses to be sworn, answer, or produce a book or paper. (Code Civil Pro., § 3003.) An adjournment follows as a matter of statutory direction, without special application by either party, where a warrant of attachment is issued to compel the attendance of a witness (Code Civil Pro., § 2967), or PEOCEDUEE IN ACTIONS GENEEALLY. 307 •where a venire is issued (Id., § 2991), or where an attachment is issued against defaulting jurors. (Id., § 2996.) It is often said that a justice loses jurisdiction of a cause by an unauthorized adjournment, and that the case is out of court. The state- ment is not technically true. While the unauthorized adjournment may be a legal error which will render valueless all subsequent proceedings when the matter is brought before an appellate court on an appeal, such sub- sequent proceedings are vpt without jurisdiction, and the erroneous adjournment has no more effect on the jurisdiction of the justice than any other error committed on the trial which is a ground for reversal on appeal. A judgment rendered after the erroneous adjournment is not void, but merely voidable, and the justice in issuing execution thereon will not be liable as a trespasser. (Horton v. Auchmoody, 7 Wend, 200 ; Hard v. Shipman, 6 Barb. 621; Handshaw v. Arthur, 9 App. Div. 1Y5, 11 N. Y. Supp. 61, 161 IsT. Y. 664.) The Code also specifies the cases in which the justice may impose con- ditions upon granting the defendant's application for an adjournment (§ 2966), and fixes a limit to the time beyond which the trial of a cause cannot be deferred by adjournments. (§ 2968.) § 18. Compelling attendance of witnesses. On request of a party the justice will issue a subpoena as provided in section 2969 of the Code. If only the presence and testimony of the witness is desired, the subpoena will be in the ordinary form. (See Form No. 39.) If it is desired that the witness shall bring with him any book or paper, a subpoena duces tecum as it is called should be issued. (See Form No. 40.) If the witness is required to produce upon the trial a book of account, he may be compelled to do so either by a subpoena duces tecum or by an order requiring him to produce it. (Code Civil Pro., § 867.) In case of a subpoena, unlike any other mandate issued by a justice of the peace, a blank may be left, in which the party may insert the name of any or all of the witnesses. (See Code Civil Pro., § 3135.) The subpoena may be served by the constable or any other person. The manner in which service is made is pointed out in section 2970 of the Code. Proof of service should be made by the constable or person who made the service. (See Form No. 41.) If a witness who has been duly subpoenaed fails to attend at the trial, and his testimony is material, the party in whose behalf the witness was subpoenaed, or his attorney, should make proof of these facts (see Form No. 42), and the justice should issue a warrant of attachment, directed generally to any constable of the county, for the purpose of compelling the 308 CIVIL LAW AJSTD PKACTICE. attendance of the witness. (Code Civil Pro., § 2971. For form of warrant see Form 'No. 43.) The warrant of attachment will be executed as directed in section 2972 or section 2973 of the Code, and the witness brought before the justice. Pending the return of the warrant the justice will adjourn the trial for such time as he deems necessary for the return, not exceeding five days. (Code Civil Pro., § 2967.) On the adjourned day, when the witness is present in court, and has an opportunity to be heard, the justice will proceed summarily to impose a fine upon the witness, unless a reasonable excuse is shown for the default. (Code Civil Pro., § 2973.) The justice will then enter in his docket-book a minute of the conviction (Code Civil Pro., § 2976; Form No. 44), and, unless the whole amount of the fine and costs are forthwith paid to him, will issue an execution as provided in section 2977 of the Code. (See Form No. 45.) § 19. When case triable without jury. An action in a justice's court is tried by the justice, without a jury, where an issue of fact has been joined and neither party has demanded a jury trial at the time of joining issue, or, where such demand has been made by a party, and the party has failed to deposit with the justice the statutory fees for the attendance of each person to be summoned, and for the jurors to serve upon the trial, and also the fees to which the constable is entitled for notifying the persons to be drawn as jurors (Code Civil Pro., §§ 2989, 2990; Martin v. Borden, 123 App. Div. 66), or where the fees of the justice for issuing the venire have been demanded by him under section 3328 of the Code and have not been paid. {Judson v. Ilavely, 59 N. Y. Supp. 1018.) So the justice may properly try the case where a jury demanded by the defendant has been waived by him in open court (Hosford v. Carter, 10 Abb. 452), or where he has waived the jury by neglecting to appear on the adjourned day. (Kilpatrich v. Carr, 3 Abb. 117; Helmick v. Churchill, 92 Hun, 524, 36 N. Y. Supp, 1028.) In the latter case, although a jury is in attendance, the justice may dismiss them and proceed to try the case himself. (Id.) Where the defendant makes default in appearing or pleading upon the return of a summons not served with a verified complaint, the justice must hear the allegations and proof of the plaintiff and render judgment according to law and equity as the very right of the case appears. (Code Civil Pro., § 2988.) It is an ancient rule that default of appearance by the defendant, or an appearance and refusal to plead, is not an admission of the plaintiff's demand ; he must establish it by testimony or other legal proof the same as if issue had been joined. (Northrup v. Jackson, 13 PKOCEDUKE IN ACTIOlSrS GENEEALLY. 309 Wend. 84 ; Blair v. Bartlett, 75 N. Y. 150 ; McDonald v. Nuse, 12 Misc. 507, 33 ]Sr. Y. Supp. 661.) The procedure is the same where an issue of fact has been joined and neither party has demanded a trial hy jury. (Code Civil Pro., § 2989.) Either party may demand a trial by jury at the time when an issue o£ fact is joined, and unless so demanded at the joining of issue a jury trial is waived. (Code Civil Pro., § 2990.) But where the plaintiff on the return day of the summons made an oral complaint for a cause of action on contract, to which the defendant interposed a general denial, and on the day to which the case was adjourned, against the objection of the defend- ant, procured an amendment of his complaint changing the cause of action to a tort, it was held that the defendant was still entitled to demand a jury trial of this new issue. (Reese v. Baum, 83 App. Div. 550.) § 20. Selection of jury. When a trial by jury has been duly demanded the justice should pro- ceed to draw twelve ballots from the box containing the names of jurors (Code Civil Pro., § 2991), and should insert the names of the jurors so drawn in a venire and deliver, or cause it to be delivered to a constable of the county disinterested between the parties. (Code Civil Pro., § 2993. Eor the form of a venire see Form No. 47.) The justice should then adjourn the court to a day specified. (Code Civil Pro., § 2991.) If the parties so stipulate, the drawing of the jury can be done at a later date. {Hallett V. Boyer, 114 N. Y. Supp. 559.) The constable should serve the venire and make his return as directed by section 2993 of the Code. (See Eorm No. 48.) Upon the day to which the trial was adjourned, ballots containing the names of the persons, returned, who attend, should be prepared as directed in section 2994 of the Code, deposited in a box, and drawn therefrom, one after the other, until six ballots have been drawn. If a person whose name is drawn is challenged and set aside, or is excused, another ballot must be drawn, and so on successively until the required number of jurors is obtained. (Code Civil Pro., § 2995.) In case a jury cannot be obtained from the persons notified and in attendance, the justice should proceed as directed in section 2997 of the Code until a jury is obtained. The justice may excuse any juror who comes within the provisions of section 544 of the Judiciary Law. (Code Civil Pro., § 2991), which is as follows : " Upon satisfactory proof of the facts, a court, at the term to which a person is returned as a trial juror, must excuse him from serving during the whole, or a portion of the term, in either of the following cases: 310 CIVIL LAW AND PEACTICE. 1. When lie is a justice of the peace, or executes any other civil oiBce, the duties of which, are, at the time, inconsistent with his attendance as a juror. 2. Where he is a teacher in a school, actually employed and serving as such. 3. Where, for any other reason, the interests of the public, or of the juror, will be materially injured by his attendance; or his own health or the health of a member of his family, requires his absence; or he is temporarily incapacitated, for any reason, from properly discharging the duties of a juror. When a person is excused, in either of the cases specified in this section, the ballot containing his name, must be returned to the box from which it was taken." Each party may peremptorily challenge not more than three of the persons drawn as jurors for the trial. (Code Civil Pro., § 1176.) § 21. The trial and its incidents. After the selection of the jury, the justice must swear them as directed by section 2998 of the Code. (See Form No. 52.) A failure to swear the jury is a fatal error. (Fulton v. Yuill, 24 Misc. 285, 53 N. Y. Supp. 707.) But the objection that the jury was not sworn cannot be raised for the first time upon appeal, for the parties waive the irregularity if they proceed to trial without objection. (Becker v. Becker, 92 Misc. 382, 156 N, Y. Supp. 995.) The party who has the affirmative of the issues to be tried is entitled to open the case to the jury; to introduce his evidence first; to introduce his evidence in reply to the evidence introduced by the adverse party ; and to sum up the cause last to the jury. The opening by a party is a state- ment of his cause of action or his defense and the evidence he expects to give to sustain it. After opening the case, the party holding the aflSrmative proceeds to introduce his record evidence, if any, or to call his witnesses. If no objection is made to the competency of the witnesses, or if an objec- tion is made and overruled, the witnesses are sworn in the order in which the party calling them deems most likely to intelligently present the facta of his case. The form of the witnesses' oath is prescribed by section 3000 of the Code. (See Eorm No. 54.) After the party has introduced all the evidence he has in support of his case, he rests. The adverse party, if it be the defendant, may then move for a nonsuit, if he deems that the evidence presented by the plaintiff does not establish his cause of action. If no nonsuit is demanded, or is demanded and denied, the party not having the affirmative then opens his case, calls his witnesses, and rests. PEOCEDUEE m ACTION'S GENEEALLY. 311 The party having the affirmative then introduces his rebutting evidence, if he has any and rests. If a motion for nonsuit on all the evidence is not then made or renevfed, the party not having the affirmative of the issue sums up, and the party having the affirmative foUovrs. If no jury is in attendance, the case is then submitted to the justice for decision and judgment. If a jury is in attendance, the justice may charge the jury, or he may decline to do so. It is a matter of discretion with him, but he charges the jury at the peril of doing so correctly. He cannot direct the jury to return a certain verdict. (Marsh v. Richer, 68 Misc. 587, 125 N. Y. Supp. 245.) Some of the more important of the general rules of evidence have been given in the preceding chapter. The manner in vsfhich evidence is intro- duced can be but briefly noticed. The party vrho calls a witness examines him as to the matters upon which the testimony of the witness is desired. This is called the direct examination. The adverse party then has a legal right to further interrogate the witness as to the matters testified to on the direct examination. This is called the cross-examination. The party calling the witness may then by proper inquiries of the witness obtain an explanation, qualification or amplification of the matters testified to on cross-examination. This is known as the redirect examination. The justice in his minutes of the testimony should note whether the evidence taken down was given by the witness upon his direct, cross, or redirect examina- tion. More latitude is allowed on cross-examination than on the direct, and a ruling which would be erroneous in one case might be proper in the other. So testimony drawn out on cross-examination as to matters not inquired about upon the direct, may make the testimony of the witness binding upon the party conducting the cross-examination, and make the witness, as to such matters. In effect, his witness. § 22. Decision and judgment. After hearing the allegations and the proofs, the jury must be kept together in a private and convenient place, under the charge of a constable, until they all agree upon their verdict. Before they retire to consider their verdict the constable in charge must be sworn by the justice as pro- vided in section 3006 of the Code. (See Form No. 53.) No instructions can be given to the jury after they retire to the jury room, unless by con- sent of the parties. No communication between the justice and the jury can be had in the absence of the parties or their attorneys without their consent, and a violation of this rule furnishes ground for the reversal of the judgment though the communication was harmless. (Rorinson v. Woodard, 88 Misc. 116, 151 N. Y. Supp. 655 ; Hudson v. Stearns, 75 312 CIVIL LAW AND PKACTICE. jST, Y. Supp. 735; Seeley v. Bisgrove, 83 Hun, 293, 31 JST. Y. Supp. 914; Valentine v. Kelley, 54 Hun, 78; High v. Chich, 81 Hun, 100; Abbott V. Hochenberger, 31 Misc. 587.) When the juorors have agreed upon their verdict they must publicly deliver it to the justice who must enter it upon his docket-book. (Code Civil Pro., § 3007.) If the jury cannot agree upon a verdict, after having been out a reasonable time, the justice may discharge them and issue a new venire, without any new demand being made for a jury trial (Hartman v. Hoffman, 65 App. Div. 443), unless the parties consent that the justice render judgment upon the evidence already before him, in which case he may enter judgment accordingly. (Code Civil Pro., § 3008.) The Code prescribes the cases in which a judgment of nonsuit must be rendered (§ 3013) ; the general requisites of a judgment upon a verdict or upon the decision of the justice upon a trial without a jury (§ 3014) ; and the time when a judgment must be rendered. (§ 3015.) The time within which a justice must render judgment is limited to four days after the case is submitted to him, and a judgment rendered after that time is illegal and void. (GillingJiam v. Jenkins, 40 Hun, 594.) The same rule applies in summary proceedings. (People ex rel. White v. Loomis, 27 Hun, 328.) Merely entering the verdict in the docket, and putting down the items of cost and adding them up with the verdict, and thus ascertaining the sum total, and nothing more, is not rendering a judgment on such verdict. Judgment must be rendered, and entered in some way as a judicial act- The decision must be evidenced by some official act. A decision in the mind of the justice, unless it is entered in the docket, or in the minutes of the trial, is of no avail whatever. It is not a legal rendering of judg- ment, and will not constitute a judgment in law. (Stevens v. Santee, 51 Barb. 532.) In no case can a mere mental determination, evidenced by no outward act, be considered as a judicial act, and a mere mental opinion, not announced, is no determination. It is the formal announcement which is the judicial act. (Youmans v. Simmons, 7 Hun, 466.) It is improper for a justice of the peace to render judgment while the counsel of one of the parties is summing up the case. (Prentice v. Sprague, 1 Hilt. 428.) Where a justice fails to render judgment in an action tried before him within four days after its final submission, it does not render him liable in an action for damages at the suit of an individual. (Evarts v. Kiehl, 102 N. Y. 296.) The justice must enter judgment within four days after the cause is PKOCEDUKE IN ACTIONS GENEKALLY. 313 sybmitted to him for final decision, but where a cause is submitted by counsel at the close of the evidence, with an agreement that within four days they will appear befor him to sum up the case, it is in effect post- poned for a final hearing and the justice has a right to take four days from that time for the decision of the cause. Where a justice rendered judgment within four days after the submis- sion, and entered the same upon his minutes of the trial, but omitting to enter the judgment on his docket, his failure to so enter it does not vitiate the judgment, but the act of entering it in the docket may be validly performed at any time. (Fish v. Emerson, 44 IST. T. 376.) After a verdict has been received and entered in the docket by a justice, he has no further judicial power in regard to it except to determine the amount of the costs, and add them to the verdict. He must enter judg- ment upon the verdict on the day on which it is rendered; if he waits until the next day, he can render no judgment. After he has done so he is without jurisdiction or authority to alter or change the record in any respect. {Allen v. Swann, 6 Civ. Pro. E. 56.) But he may, under section 723 of the Code, amend the judgment by inserting therein the true given name in parenthesis of the defendant. (Furanz v. Tramontano, 177 App. Div. 52.) The parties may by consent extend the time in which the justice may render his judgment. {Barnes v. Badger, 41 Barb. 98 ; Beardsley v. Pope, 88 Hun, 563.) Where a justice of the peace has decided an action upon the merits and has entered judgment for the damages upon the last day of the statutory time given him for that purpose, a valid judgment has been rendered, and it is beyond his power to invalidate the judgment by subsequently adding costs to it. {Rich v. Markham, 92 Hun, 78.) A justice has no authority to enter judgment on Sunday. His authority to act on that day is suspended. The language of the statute directing the justice to render the judgment forthwith is of the character considered in law to be directory, and not involving the validity of the act, if not done at the time directed. The statute so directing the justice must harmonize with the provision which forbids the transaction of any business in court on Sunday. The statute authorizes courts to be open for the purpose of receiving a verdict, and forbids the transaction of any other business on Sunday. And the verdict is valid by the statute although rendered on Sunday, but the justice cannot enter judgment thereon until Monday. The time intervening between the rendition of the verdict on Sunday, and the action by the justice in rendering judgment on the following Monday, is to be regarded as a period during which his authority is suspended, to be resumed and continued when holy time has expired. 314 CIVIL LAW AND PEACTICE. A judgment entered on Sunday is wholly vojd. (Allen v. Godfrey, 44 N. Y. 433.) When a justice has jurisdiction of the subject matter of the action and of the person of the defendant, his judgment cannot he attacked collaterally. (Reno V. Finder, 20 IST. Y. 298.) Unless the ease is one specified in Section 3075 of the Code, the justice, at the time of rendering judgment, should tax the costs of the prevailing party and include the same in the judgment. (Code Civil Pro., § 3074.) He should also make a minute of the costs of the defeated party, as he may become entitled to be repaid the same on appeal from the judgment against him. (See Code Civil Pro., § 3060.) The Code defines what is meant by the word "costs" (§ 3074) ; limits the amount which may be awarded to the prevailing party (§ 3076) ; and the mode of taxation. (§ 3078.) Section 3245 of the Code, prohibiting costs against municipal corporations in certain cases, does not apply to justices' courts. (Bradley V. Town of Union, 164 App. Div. 735, 150 K Y. Supp. 112.) § 23. Minutes of trial and docket of justice. A justice should make full and accurate minutes of all proceedings in the action before him, including the evidence given by the several witnesses, the objections made by the parties to the evidence offered, and his rulings thereon. All these matters may be brought before an appellate court for review, and it is essential that the justice should have before him the means of making a full and correct return. A full record of the evidence given is also important in many cases in reaching a correct decision upon the merits of the case tried before him, where judgment is deferred for the statutory time, or where the case is not finally submitted by the parties for a considerable time after the evidence was given. The justice must also keep a docket-book and enter therein all that the statute requires. (See Code Civil Pro., § 3140.) § 24. Executions. The time within which a justice of the peace may issue an execution upon a judgment rendered by him is limited to five years, and the right to issue it is made dependent upon the fact that the justice is then in office, and the judgment has not been docketed in the county clerk's office. (Code Civil Pro., § 3024.) If it has been docketed with a county clerk, the clerk will issue execution thereon (Id., § 3017), as prescribed in section 3043. A justice may renew an execution after the expiration of his term of office within five years after the rendering of the judgment. (Id., § 3027.) Bat after the expiration of his office, he cannot issue an execution PKOOEDUKE IN ACTIONS GENERALLY. 315 against the wages of the debtor under section 1391 of the Code. (Furanz V. Tramontano, 17T App. Div. 52.) The general requisites of an execution issued by a justice of the peace are stated in section 3025 of the Code (see Form 68) ; the requisites of an execution against the person in section 3026 (see Form No. 69) ; and the requisites of an execution upon a judgment rendered in an action to recover a chattel in section 1731 of the Code as modified by section 3038. (See Form No. 70.) If the execution is issued upon a judgment rendered in an action to recover a penalty or forfeiture given by a statute of the State, it must be indorsed by the justice with a reference to the statute in the following form : "According to the provisions of," etc., adding such a description of the statute as will identify it with convenient certainty, and also specifying the section if penalties or forfeitures are given in different sections of the statute for different acts or omissions. (Code Civil Pro., §§ 1897, 3026.) If the judgment was rendered in an action in which a warrant of attachment was issued and not vacated, and prop- erty of the defendant was attached, but in which the defendant did not appear and was not personally served with the summons, the execution must require the constable to satisfy it out of the property so attached, without containing a direction to satisfy it out of any other property. (Code Civil Pro., § 2918; see Form No. 72.) If the judgment was rendered in an action against two or more persons jointly indebted upon contract, and the summons was served upon one or more of the defendants, but not upon all of them, an execution thereon must be issued, in form, against all the defendants, but the justice must indorse thereon a direction to the constable, containing the name of each defendant who was not summoned, restricting the enforcement of the execution, as against the property of the person or persons so named, to its collection out of the personal property owned by such defendant jointly with the other defendants who were summoned, or with any of them. Code Civil Pro., §§ 1934, 1935, 3020; Hoffman v. Wight, 1 App. Div. 514, 516.) Thus, if judgment is rendered against two copartners on a copartnership obligation, and but one of the partners was served with the summons, the plaintiff may have execution against the copartnership property and the individual property of the partner summoned, although not against the individual property of the copartner not summoned. {Latz V. Bluementhal, 50 Misc. 407, 408.) § 25. Levy and sale under execution. The constable to whom an execution is delivered should at once proceed to execute it according to its commands. He should levy upon and take into 316 CIVIL LAW AND PEACTICE. his custody sufficient personal property of the judgment debtor to satisfy the judgments together with his fees; indorse upon the execution the time of levying (see Form No. 71) ; and immediately post conspicuously in three public places of the city or town in which the property was taken written or printed notices, signed by him, describing the property, and specifying the place within the same city or town, and the time, not Jess than six days after the posting, when it will be exposed for sale. (Code Civil Pro., § 3029; Form No. 73.) He may or may not make an inven- tory of the property levied upon, although it is the common and better practice to do so. (Watts v. Cleveland, 3 E. D. Smith, 553.) On the day specified in the notice of sale, and between the hour of nine o'clock in the morning and sunset he should sell the property at public auction. (Code Civil Pro., § 1384.) He should not directly or indirectly purchase any of the property at the sale. (Id., § 1387.) He should offer the property for sale in such lots and parcels as are calculated to bring the highest price, and the property should be present and in view of those attending the sale. (Id., § 1428.) Having completed the sale, he should return the execution to the justice; pay over to him the amount of the judgment, with interest, or so much thereof as he has collected, and return the surplus if any to the person from whose property it was collected. (Id., § 3031.) If the execution given him is against the person, he should proceed as directed in section 3032 of the Code. The levy, sale and return must be made within the sixty days from the date of the execution, unless it has been renewed (see Code Civil Pro., § 3027), and in that case, before the expira- tion of the time for which it was renewed. (Id., § 3040.) A levy after return day makes him a trespasser. {Vail v, Lewis, 4 Johns. 450.) The renewal of an execution must be for sixty days. If for a less period it is void. (Vinne v. Houghtaling, 84 Hun, 166, 32 N. Y, Supp. 450.) A constable whose term of office expires before the return day of the execution must proceed as if his term had not expired (Code Civil Pro., § 3042), and a justice whose term of office has expired may renew an execution. (Id., § 3027.) § 26. Property exempt from execution. Where the execution is issued to satisfy a judgment for money, it directs the constable to satisfy it out of the personal property of the judg- ment debtor within the county, not exempt from levy and sale by virtue of an execution. (Code Civil Pro., § 3026.) The same personal property is exempt from levy and sale by virtue of execution issued by a justice of the peace, which is exempt from levy and PEOCEDUEE IN ACTIONS GENEEALLY. 317 sale by virtue of an execution issued out of the Supreme Court in like cases under the same circumstances as prescribed in sections 1389, 1390, 1391, 1392, 1393 and 1394 of the Code and the other provisions of law relating to such an exemption. (Code Civil Pro., § 3028.) The following personal property, when owned by a householder, is exempt from levy and sale by virtue of an execution; and each movable article thereof continues to be so exempt, while the family, or any of them, are removing from one residence to another : 1. All spinning wheels, weaving looms, and stoves, put up, or kept for use in a dwelling house ; and one sewing-machine, with its appurtenances. 2. The family Bible, family pictures, and school books, used by or in the family; any other books not exceeding in value fifty dollars, kept and used as part of the family library. 3. A seat or pew, occupied by the judgment debtor, or the family, in a place of public worship. 4. Ten sheep, with their fleeces, and the yarn or cloth manufactured therefrom ; one cow ; two swine ; the necessary food for these animals ; all necessary meat, fish, flour, groceries and vegetables, actually provided for family use; and necessary fuel, oil, and candles, for the use of the family for sixty days. 5. All wearing apparel, beds, bedsteads, and bedding necessary for the judgment debtor and the family; all necessary cooking utensils; one table ; six chairs ; six knives ; six forks ; six spoons ; six plates ; six tea- cups; six saucers; one sugar dish; one milk pot; one teapot; one crane and its appendages; one pair of andirons; one coal scuttle; one shovel; one pair of tongs ; one lamp, and one candlestick. 6. The tools and implements of a mechanic, necessary to the carrying on of his trade, not exceeding in value twenty -five dollars. (Code Civil Pro., § 1390.) In addition to the exemptions, allowed by the last section, necessary household furniture, working tools and team, professional instruments, furniture and library, not exceeding in value two hundred and fifty dollars, together with the necessary food for the team, for ninety days, are exempt from levy and sale by virtue of an execution, when owned by a person, being a householder, or having a family for which he provides, except where the execution is issued upon a judgment recovered wholly upon one or more demands, either for work performed in the family as a domestic or for the purchase money, of one or more articles, exempt as prescribed in this or the last section. (Code Civil Pro., § 1391.) Where the judgment debtor is a woman, she is entitled to the same exemptions, from levy and sale by virtue of an execution, subject to the 318 CIVIL LAW AND PEACTICE. same exceptions, as prescribed in the last two sections, in the case of a householder. (Code Civil Pro., § 1392.) The pay and bounty of a noncommissioned officer, musician or private in the military or naval service of the United States or the State of Nevsr York; a land warrant, pension or other reward heretofore or here- after granted by the United States, or by a State, for military or naval services; a sword, horse, medal, emblem or device of any kind presented as a testimonial for services rendered in the military or naval service of the United States or a State; and the uniform, arms and equipments which were used by a person in that service, are also exempt from levy and sale, by virtue of an execution, and from seizure for nonpayment of taxes, or in any other legal proceeding; except that real property pur- chased with the proceeds of a pension granted by the United States for military or naval services, and owned by the pensioner, or by his wife or widow, is subject to seizure and sale for the collection of taxes or assessments lawfully levied thereon. (Code Civil Pro., § 1393.) No process of attachment, execution, sequestration, replevin, distress or any kind of seizure shall be served or levied upon articles, goods, wares, merchandise or property of any description while the same is en route to or from, or while on exhibition or deposited by exhibitors at any inter- national exhibition held under the auspices or supervision of the United States, within any city or county of the State, not shall such property be subject to attachment, seizure, levy or sale, for any cause whatever, in the hands of the authorities of such exhibition or otherwise. (Code Civil Pro., § 1404a.) A right of action to recover damages, or damages awarded by a judg- ment, for taking or injuring personal property, exempt by law from levy and sale, by virtue of an execution, are exempt, for one year after the collection thereof, from levy and sale, by virtue of an execution, and from seizure in any other legal proceeding. (Code Civil Pro., § 1394.) Where the debtor claims an exemption from execution for certain property, he must notify the officer of his claim before he can maintain an action for conversion of such property ; the claim that property levied on is exempt from execution is a claim personal to the defendant in the execution, and he only can avail himself of the privilege. The exemption provided by the statute is not exclusively for the benefit of the ovmer of the property. It is intended mainly for the benefit of the family for which he provides. (Wilcox v. Bowe, 59 Hun, 268 ; Wilcox v. Bawley, 31 N. Y. 648; Smith v. Eill, 22 Barb. 656.) The " team " which the exemption law exempts from sale on execution, when owned by any person being a householder or having a family for PKOCEDUEE m ACTIONS GENEEALLY. 319 whicli he provides, includes any number of animals composing the team, it may consist of one, two, three, four, or more. A team may be formed with either of these numbers, and whichever may compose it, if within the purview of the statute, and the limit as to value fixed by it, it wiU be exempt. (Wilcox v. Hawley, 31 N. Y. 648; Gogsdill v. Brown, 5 Hun, 341.) A wagon may be a part of and embraced in the description of a team and if so, it is exempt. But it is for the party claiming the exemption to establish it by a preponderance of proof, (Brown v. Davis, 9 Hun, 43. ) Potatoes planted for family use are exempt from execution before they are dug, just the same as when they are taken out of the ground and stored. (Carpenter v. Harrington, 25 Wend. 370.) Professional books necessary to a professional man, who provides for a family, or is the head of one are exempt. So are the surgical instruments of a surgeon. A watch when shown absolutely necessary to the debtor in certain cases may be exempt. A machine such as a threshing machine and horse power, or engine is not exempt from levy and sale on execution. (Ford V. Johnson, 34 Barb. 364 ; Bitting v. Vandenburgh, 17 How. 80 ; Robinson's Case, S Abb. 466.) A person having, and providing for a household, is a " householder," and the character is not lost by a temporary ceasing of housekeeping. The exemption was made for the benefit of the family, rather than its head, the debtor. Its object concerns a question of public policy. It is to keep together the wife and children, that the children may be trained and become useful members of society; to protect them against the dangers to _ which they would be exposed by being scattered, at a tender age, and to secure them the means of instruction and improvement. It does not mean simply a housekeeper, but also a " master or chief of a family." A man who is not a householder, and has no family for which he pro- vides wholly or partly, is not entitled to any exemption. (Fink v. FraenMe, 39 St. Kep. 194, 14 N. Y. Supp. 140.) The earnings of the judgment debtor for his personal services rendered within sixty days next before the institution of proceedings supplementary to execution, are exempt when it is made to appear by his oath or other- wise that those earnings are necessary for the use of a family, wholly or partly supported by his labor. (Code Civil Pro., § 2463.) The necessary wearing apparel of every debtor is exempt from levy and sale on execution. (Bumpus v. Maynard, 36 Barb. 626.) To entitle a person to have his team exempted from levy and sale under execution, he need not have the sole right of property therein. If he is only a part owner, in common with another, he is within the meaning 320 CIVIL LAW AND PKACTICE. and object of the statute, as much as if lie owned the team alone. {Bad- cliff V. Wood, 25 Barb. 52.) When a judgment debtor has three horses, either two of which may constitute a team, and one of the horses is levied upon by a constable, by virtue of an execution, the debtor may at the time of the levy, or within a reasonable time after he has notice thereof, elect to claim such horse as exempt property. If he fails to make such election he cannot thereafter maintain an action for conversion thereof or replevin. (Seaman v. Luce, 23 Barb. 240 ; BrooJcs v. Hathaway, 8 Hun, 290.) The team of every teamster, and of every other man, when it is neces- sary to his use, is exempt although the owner may be worth thousands of dollars in money, or in other property. The exemption in the statute was not made to depend on the pecuniary ability of the debtor; it is a benign and remedial statute, enacted for the benefit of families, from the highest motive of public policy, and it is the duty of courts to see to it that its humane provisions shall not be defeated by technicalities. (Smith v. Slade, 57 Barb. 637.) Tn an action to recover damages for the sale by an officer of exempt property, under an execution, it is sufficient for the plaintiff, on the trial, to show that the articles levied upon and sold, and claimed to be exempt, are enumerated in the statute as exempt property, when necessary, and then show them to be necessary and within the limit as to value. IlTeither the statute, nor the rule of evidence, calls upon the plaintiff to prove what else he may own. Damages recovered in such an action would seem to be exempt from execution for a reasonable time at least. Certain exempt property is liable to seizure and sale on an execution ■ issued to collect the purchase money of any article exempt under the statute. (Snyder v. Davis, 1 Hun, 350.) Moneys received from a pension and deposited in a bank in the name of the pensioner, is not subject to proceedings on the part of creditors to have them applied in payment of debts, although the relation between the depositor and the bank is that of creditor and debtor. The debt repre/Sents the pension, and that is exempt under the statute. And when the receipts from a pension can be directly traced to the purchase of property necessary or convenient for the support and mainte- nance of the pensioner and his family, such property is exempt. But it seems that when pension moneys have been embarked in business and mingled with other funds so as to be incapable of identification or separa- tion, the pensioner loses the benefit of the exemption. (Yates County National Bank v. Carpenter, 119 iN". T. 550.) PKOCEDURE m ACTIONS GENERALLY. 321 § 27. Garnishee of wages or income. Where a judgment has been recovered and where an execution issued upon said judgment has been returned wholly or partly satisfied, and where any wages, debts, earnings, salary, income -from trust funds or profits are due and owing to the judgment debtor or shall thereafter become due and owing to him, to the amount of twelve dollars or more per week, the judgment creditor may apply to the court in which said judgment was recovered or to the court having jurisdiction of the same without notice to the judgment debtor and upon satisfactory proof of such facts by affidavits or otherwise, the court, if a court not of record, a judge or justice thereof, must issue, or if a court of record, a judge or justice, must grant an order directing that an execution issue against the wages, debts, earnings, salary, income from trust funds or profits of said judg- ment debtor, and on presentation of such execution by the officer to whom delivered for collection to the person or persons from whom such wages, debts, earnings, salary, income from trust funds or profits are due and owing, or may thereafter become due and owing to the judgment debtor, said execution shall become a lien and a continuing levy upon the wages, earnings, debts, salary, income from trust funds or profits, due or to become due to said judgment debtor to the amount specified therein which shall not exceed ten per centum thereof, and said levy shall be a continu- ing levy until said execution and the expenses thereof are fully satisfied and paid or until modified as hereinafter provided, but only one execution against the wages, debts, earnings, salary, income from trust funds or profits of said judgment debtor shall be satisfied at one time and where more than one execution has been issued or shall be issued pursuant to the provisions of this section against the same judgment debtor, they shall be satisfied in the order of priority in which such executions are presented to the person or persons, from whom such wages, debts, earnings, salary, income from trust funds or profits are due and owing. It shall be the duty of any person or corporation, municipal or otherwise, to whom said execution shall be presented, and who shall at such time be indebted to the judgment debtor named in such execution, or who shall become indebted to such judgment debtor in the future, and while said execution shall remain a lien upon said indebtedness to pay over to the officer presenting the same, such amount of such indebtedness as such execution shall prescribe until said execution shall be wholly satisfied, and such payment shall be a bar to any action therefor by any such judgment debtor. If such person or corporation, municipal or otherwise, to whom said execution shall be presented shall fail, or refuse to pay over to said officer presenting said 21 322 CIVIL LAW AND PKACTICE. execution, the percentage of said indebtedness, he shall be liable to an action therefor by the judgment creditor named in such execution, and the amount so recovered by such judgment creditor shall be applied towards the payment of said execution. Either party may apply at any time to the court from which such execution shall issue, or to any judge or justice issuing the same, or to the county judge of the county, and in any county where there is no county judge, to any justice of the city court upon such notice to the other party as such court, judge, or justice shall direct for a modification of said execution, and upon such hearing the said court, judge or justice may make such modification of said execution as shall be deemed just, and such execution as so modified shall continue in full force and effect until fully paid and satisfied, or until further modified as herein provided. This section, so far as it relates to wages and salary, due and owing or to become due and owing to the judgment debtor, shall not apply to judgments recovered more than ten years prior to September first, nineteen hundred and eight, nor to judgments hereto- fore or hereafter recovered upon such judgments, and any execution here- tofore issued upon such judgments pursuant to an order heretofore granted under this section shall, when this act takes effect, cease to be a lien and continuing levy upon wages and salary thereafter to become due and owing to the judgment debtor. No execution under this section shall be hereafter issued upon a judgment against an ofiicer or employee of any city or any county of the state or of the board of education of any such city, unless it shall contain the name of the judgment debtor in full, his title or position, and the bureau, ofiice, department or subdivision thereof in which he is employed; and if a person so employed shall resign or be dismissed while an execution issued pursuant to the provisions of this section is wholly or partly unsatisfied, and he be reinstated or re-employed, such execution shall lapse and no further deduction shall be made thereon unless such reinstatement or re-employment occur within ninety days after such resignation or dismissal. All executions filed in any department against the wages, debts, earnings and salary of officers or employees of any city or of any county of the state, or of the board of education of any such city within five days prior to the date on which payment of wages, debts, earnings and salary are paid shall not become a lien against the wages, debts, earnings and salary that are payable on the said payroll but shall become a lien upon the wages, debts, earnings and salary which shall become due or owing to the judgment debtor thereafter. (Code Civil Pro., § 1391.) ■ FOEECLOSUKE OF MECHANIC'S LIENS. 323 CHAPTEE XV. Section 1. In general. 2. Action of court not of record. 3. Appeals. 4. Transcript of judgment. 5. Costs and disbursements. 6. Judgment in case of failure to establish lien. 7. Oflfer to pay money into court, or to deposit securities, in discharge of lien. 8. Preference over contractors. 9. Judgment may direct delivery of property in lieu of money. 10. Judgment in action to foreclose lien on account of public improvement. 11. Judgment in action to foreclose lien on railroad property. § 1. In general. In the preceding chapter an attempt has been made to present in outline the commencement, trial and final disposition of an ordinary action in a justice's court. The subject of the present chapter will be the procedure in an action brought in a justice's court or other court not of record (see § 3 of Judiciary Law), for the enforcement of a lien on real prop- erty. The procedure in this action, which is to some extent special and statutory, was formerly contained in the Code of Civil Procedure but is now set forth in article 3 of the Lien Law. The foUowine; is the con- struction of that article as defined by section 40 of that ac\, " This article is to be construed in connection with article two of this chapter (chapter 33 of Consolidated Laws), and provides proceedings for the enforcement of liens for labor performed and materials furnished in the improvement of real property, created by virtue of such article," The provisions of article 2, above referred to, may be found, with con- siderable explanatory matter, in a preceding chapter of this volume. (See Chap. VIII.) In respect to jurisdiction of the action the statute provides that "A mechanic's lien on real property may be enforced against such property, and against a person liable for the debt upon which the lien is founded, by an action, by the lienor, his assignee or legal representative, in a court which has jurisdiction in an action founded on a contract for a sum of money equivalent to the amount of such debt." (Lien Law, § 41. See B. C. & G. Consolidated Laws. See also, Ray on Mechanics' Liens, § 213.) It also provides that " a lien for labor done or materials furnished for a public improvement may be enforced against the funds of the state or the 324 CIVIL LAW AND PEACTICE. municipal corporation for whicli such public improvement is constructed, to the extent prescribed in article two of this chapter, and against the contractor or subcontractor liable for the debt, by a civil action, in the same court and in the same manner as a mechanic's lien on real property." (Lien Law, § 42. See B. G. & G. Consolidated Laws. See also, Ray on Mechanics' Liens, § 213.) This gives a justice's court jurisdiction where the debt which is the foundation of the lien does not exceed two hundred dollars. § 2. Action in court not of record. If an action to enforce a mechanic's lien against real property is brought in a court not of record, it shall be commenced by the personal service upon the owner, anywhere. within the state, of a summons and complaint verified in the same manner as a complaint in an action in a court of record. The complaint must set forth substantially the facts contained in the notice of lien, and the substance of the agreement under which the labor was per- formed or the materials were furnished. The form and contents of the summons shall be the same as provided by the code of civil procedure for the commencement of an action upon a contract in such court. The sum- mons must be returnable not less than twelve nor more than twenty days after the date of the summons, or, if service is made by publication, after the day of the last publication of the summons. Service must be made at least eight days before the return day. (Lien Law, § 46. See B. G. & G. Consolidated Laws. See also, Eay on Mechanics' Liens, § 243.) If personal service of the summons cannot be made upon a defendant in an action in a court not of record, by reason of his absence from the state, or his concealment therein, such service may be made by leaving a copy thereof at his last place of residence and by publishing a copy of the summons once in each of three successive weeks in a newspaper in the city or county where the property is situated. (Lien Law, § 4Y. See B. G. & G. Consolidated Laws. See also, Eay on Mechanics' Liens, § 243.) At the time and place specified in the summons for the return thereof, in a court not of record, issue must be joined, if such parties appear, by the defendant filing with the justice a verified answer, containing a general denial of each allegation of the complaint, or a specific denial of one or more of the material allegations thereof; or any other matter constituting a defense to the lien or to the claim upon which it is founded. If the defendant fail to appear on the return-day, on proof by affidavit of the service of the summons and complaint, judgment may be rendered for the amount claimed, with costs. (Lien Law, § 48. See B. 0. & G. Con- solidated Laws. See also, Eay on Mechanics' Liens, § 243.) FOEECLOSUEE OF MECHANIC'S LIENS. 325 If issue is joined in sueli action in a court not of record, it must be tried in the same manner as other issues in such court, and judgment entered thereon, which shall be enforced, if for the plaintiff, in the manner pro- vided in the following section. If for the defendant, in the same manner as in an action on contract in such court. (Lien Law, § 49. See B. C. & G. Consolidated Laws. See also, Eay on Mechanics' Liens, § 243.) Execution may be issued upon a judgment obtained in an action to enforce a mechanic's lien against real property in a court not of record, which shall direct the officer to sell the title and interest of the owner in the premises, upon which the lien set forth in the complaint existed at the time of filing the notice of lien. (Lien Law, § 50. See B. C. & G. Con- solidated Laws. See also, Eay on Mechanics' Liens, § 243.) § 3. Appeals. An appeal may be taken from a judgment rendered in a court not of record in an action to enforce a mechanic's lien, according to the pro- visions of the code of civil procedure, regulating appeals from judg- ments in actions on contract in such courts. (Lien Law, § 51. See B. C. & G. Consolidated Laws. See also, Eay on Mechanics' Liens, § 243.) § 4. Transcript of judgment. When a judgment is rendered in a court not of record, the justice or judge of the court in which it is tried, or other person authorized to furnish transcripts of judgments therein, shall furnish the successful party a transcript thereof, which he may file with the clerk of the county with whom the notice of lien is filed. The filing of such transcript has the same effect as the filing of a transcript of any other judgment rendered in such courts. (Lien Law, § 52. See B. C. & G. Consolidated Laws. See also, Eay on Mechanics' Liens, § 243.) § 5. Costs and disbursements. If an action is brought to enforce a mechanics' lien against real prop- erty in a court of record, the costs and disbursements shall rest in the discretion of the court, and may be awarded to the prevailing party. The judgment rendered in such an action shall include the amount of such costs and specify to whom and by whom the costs are to be paid. If such action is brought in a court not of record, they shall be the same as allowed in civil actions in such court. The expenses incurred in serving the summons by publication may be added to the amount of costs now allowed in such court. (Lien Law, § 53. See B. 0. & G. Consolidated Laws. See also, Eay on Mechanics' Liens, § 242.) 326 CIVIL LAW AND PEACTICE. § 6. Judgment in case of failure to establish lien. If the lienor shall fail, for any reason, to establish a valid lien in an action under the provisions of this article, he may recover judgment therein for such sums as are due him, or which he might recover in an action on a contract, against any party to the action. (Lien Law, § 54. See B. C. & G. Consolidated Laws. See also, Kay on Mechanics' Liens, § 240.) § 7. Offer to pay money into court, or to deposit securities, in discharge of lien. At any time after an action is brought under the provision of this article, the owner may make and file with the clerk with whom the notice of lien is filed, if in a court of record, and if in a court not of record, with the court, an offer to pay into court the sum of money stated therein, or to execute and deposit securities which he may describe, in discharge of the lien, and serve upon the plaintiff a copy of such offer. If a written acceptance of the offer is filed with such clerk, or court, within ten days after its service, and a copy of the acceptance is served upon the party making the offer, the court, upon proof of such offer and acceptance, may make an order, that on depositing with such clerk, or court, the sum so offered, or the securities described, the lien shall be discharged, and that the money or securities deposited shall take the place of the prop- erty upon which the lien existed, and shall be subject to the lien. If ■the offer is of money only, the court, on application and notice to the plaintiff may make such order, without the acceptance of the offer by the ■plaintiff. If such action is brought in a court not of record, such order may be made by the county court of the county where such action is brought upon notice, and upon filing such order and depositing such sum of money or securities with the county clerk of such county, he shall forth- with discharge said notice of lien, by writing upon the margin of the record thereof, the words " discharged by payment." Money or securities deposited upon the acceptance of an offer pursuant to this section shall be held by the clerk or the court until the final determination of the action, including an appeal. (Lien Law, § 55. See B. C. & G. Consolidated Laws. See also, Eay on Mechanics' Liens, § 187.) § 8. Preference over contractors. When a laborer, subcontractor or materialman shall perform labor or furnish materials for an improvement of real property or for a public improvement, for which he is entitled to a mechanic's lien, the amount due to him shall be paid out of the proceeds of the sale of such property FOEECLOSUEE OF MECHANIC'S LIENS. 327 or out of the moneys of the state or municipal corporation applicable to the construction of the public improvement, under any judgment rendered pursuant to this article, in the order of priority of his lien, before any part of such proceeds is paid to the person for whom he has per- formed such labor or furnished such material. If several notices of lien are filed for the same claim, as where the contractor has filed a notice of lien, for the services of his workmen, and the workmen have also filed notices of lien, the judgment shall provide for but one payment of the claim which shall be paid to the parties entitled thereto in the order of priority. Payment voluntarily made upon any claim filed as a lien shall not impair or diminish the lien of any person except the person to whom the payment was made. (Lien Law, § 56. See B. C. & G. Con- solidated Laws. See also, Eay on Mechanics' Liens, § 179.) § 9. Judgment may direct delivery of property in lieu of money. If the owner has agreed to deliver bills, notes, securities or other obliga- tions or any other species of property, in payment of the debt upon which the lien is based, the judgment may direct that such substitute be delivered or deposited as the court may direct, and the property affected by the lien cannot be sold, by virtue of such judgment, except in default of the owner to so deliver or deposit within the time directed by the court. (Lien Law, § 57. See B. C. & G. Consolidated Laws. See also, Eay on Mechanics' Liens, § 187.) § 10. Judgment in action to foreclose lien on account of public improve- ment. If, in an action to enforce a lien on account of a public improvement, the court finds that the lien is established, it shall render judgment directing the state or the municipal corporation to pay over to the lienors entitled thereto for work done or material furnished for such public improvement, and in such order of priority as the court may determine, to the extent of the sums found due the lienors from the contractors, so much of the funds or money which may be due from the state or municipal corporation to the contractor, as will satisfy such liens, with interest and costs, not exceeding the amount due to the contractor. (Lien Law, § 60. See B. C. & G. Consolidated Laws. See also, Eay on Mechanics' Liens, § 239.) § 11. Judgment in action to foreclose lien on railroad property. If the lien is for labor done or materials furnished for a railroad corpo- ration, upon its land, or upon or for its track, rolling stock or the appurte- 328 CIVIL LAW AjSTD PEACTICE. nances of its railroad, the judgment shall not direct the sale of any of the real property described in the notice of the lien, but when in such case, a judgment is entered and docketed with the county clerk of the county where the notice of lien is filed, or a transcript thereof is filed and docketed in any other county, it shall be a lien upon the real property of the railroad corporation, against which it is obtained, to the same extent, and enforceable in like manner as other judgments of courts of record against such corporation. (Lien Law, § 61. See B. C. & G. Consolidated Laws. See also, Eay on Mechanics' Liens, § 239.) FORECLOSUKE OF LIENS UPON CHATTELS. 329 CHAPTEE XVI. rOEECLOSTJKE OF A LIEN UPON A CHATTEL. Section 1. Liens on chattels. 2. Sale of personal property to satisfy lien. 3. Notice of sale. 4. Advertiseemnt of sale. 5. Eedemption after sale. 6. Disposition of proceeds. 7. Remedy of sale by advertisement not exclusive. 8. Enforcement of lien by action. 9. Seizure of chattels in action. 10. Judgment in foreclosure action. 11. Actions in inferior court. 12. Application of certain sections of Lien Law. § 1. Liens on chattels. The Lien Law provides for the creation and enforcement of liens on monuments, gravestones and cemetery structures (art. 5); for liens for labor on stone (art. 6) ; for liens for service of stallions (art. 7) ; and other liens on personal property (art. 8) ; including an artisan's lien (§ 180); a hotel, innkeeper's and boarding and lodging house keeper's lien (§ 181) ; a factor's lien on merchandise (§ 182) ; a lien of a bailee of animals (§ 183) ; a lien of a bailee of motor vehicles (§ 184) ; a lien of manufacturers and throusters of silk goods (§ 185) ; a lien of bailees for hire (§ 186) ; and a lien of truckmen and draymen (§ 187.) It also provides for the enforcement of liens on personal property (art. 9), by sale of the property to satisfy the lien (§§ 200-205), and by action. (§§ 206-210. See B. C. & G. Consolidated Laws.) § 2. Sale of personal property to satisfy Hen. A lien against personal property, other than a mortgage on chattels and ihe lien of a keeper of a hotel, apartment hotel, inn, boarding house or lodging house, excepting an emigrant lodging house, if in the legal pos- session of the lienor, may be satisfied by the public sale of such property according to the provisions of this article. (Lien Law, § 200. See B. C. & G. Consolidated Laws.) The original form of this statute is as stated ahove, but it seems that the Legislature intended to mean " immigrant " when it said " emigrant." 330 CIVIL LAW AND PEACTICE. § 3. Notice of sale. Before such sale is held the lienor shall serve a notice upon the owner with due diligence within such county, if such owner can be found when iiuch lien arose, if not then to the person for whose account the same is then held personally, provided such service can be made "with due dili- gence within the county where such lien arose, but if such person cannot with due diligence be found within such county, then such notice shall be served by mailing it to him at his last known place of residence, or to his last known post-office address. A like notice shall be served in the same way upon any person who shall have given to the lienor notice of an interest in the property subject to the lien. Such notice shall contain a statement of the following facts : 1. The nature of the debt or the agreement under which the lien arose, with an itemized statement of the claim and the time when due ;' 2. A brief description of the personal property against which the lien exists ; 3. The estimated value of such property; 4. The amount of such lien, at the date of the notice. It shall also require such owner or person to pay the amount of such lien, on or before a day mentioned therein, not less than ten days from the service thereof, and shall state the time when and place where such property will be sold, if such amount is not paid. If the agreement on which the lien is based provides for the continuous care of property the lienor is also entitled to receive all sums which may accrue under the agreement, subsequent to the notice and prior to payment or a sale of the property; and the notice shall contain a statement that such additional sum is demanded. Such notice shall be verified by the lienor to the effect that the lien upon such property is valid, that the debt upon which such lien is founded is due and has not been paid and that the facts stated in such notice are true to the best of his knowledge and belief. (Lien Law, § 201. See B. C. & G. Consolidated Laws.) § 4. Advertisement of sale. Each sale of personal property to satisfy a lien thereon shall be at public auction to the highest bidder, and shall be held in the city or town where the lien was acquired. After the time for the payment of the amount of the Hen specified in the notice required to be served by the preceding section, notice of such sale, describing the property to be sold, and stating the name of the owner or person for whose account the same is then held and the time and place of such sale, shall be published once a week, for two consecutive weeks, in a newspaper published in the town FOKECLOSURE OF LIENS UPON" CHATTELS. 331 or city where such sale is to be held, and such sale shall be held not less than fifteen days from the first publication ; if there be no newspaper pub- lished in such town, such notice shall be posted at least ten days before such sale in not less than six conspicuous places therein. (Lien Law, § 202. See B. C. & G. Consolidated Laws.) § 5. Redemption after sale. At any time before such property is so sold, the owner thereof may redeem the same by paying to the lienor the amount due on account of the lien, and whatever legitimate expenses have been incurred at the time of such payment in serving the notice and advertising the sale as required in this article. Upon making such payment, the owner of such property is entitled to the possession thereof. (Lien Law, § 203. See B. C. & G. Consolidated Laws.) § 6. Disposition of proceeds. Of the proceeds of such sale, the lienor shall retain an amount suffi- cient to satisfy his lien, and the expenses of advertising and sale. The balance of such proceeds, if any, shall be held by the lienor subject to the demand of the owner, or his assignee or legal representative, and a notice that such balance is so held shall be served personally or by mail Tipon the owner of the property sold. If such balance is not claimed by the owner or his assignee or legal representative within thirty days from the day of sale, such balance shall be deposited with the treasurer or chamberlain of the city or village, or the supervisor of the town, where such sale was held. There shall be filed with such deposit, the affidavit of the lienor, stating the name and place of residence of the owner of the property sold, if known, the articles sold, the prices obtained therefor, that the notice required by this article was duly served and how served upon such owner, and that such sale was duly legally and how advertised. There shall also be filed therewith a copy of the notice served upon the owner of the property and of the notice of sale published or posted as required by this article. The officer with whom such balance is deposited shall credit the same to the owner of the property, and pay the same to such owner, bis assignee or legal representative, on demand and satisfactory evidence of identity. If such balance remains in the possession of such officer for a period of five years, unclaimed by the person legally entitled thereto, it shall be transferred to the general funds of the town, village or city, and be applied and used as other moneys belonging to such town, village or «ity. (Lien Law, § 204. See B. C. & G. Consolidated Laws.) 332 CIVIL LAW AXD PEACTICE. § 7. Remedy of sale by advertisement not exclusive. The preceding provisions of this article do not preclude any other remedy by action or otherwise, now existing, for the enforcement of a lien against personal property, or bar the right to recover so much of the debt as shall not be paid by the proceeds of the sale of the property. (Lien Law, § 205. See B. C. & G. Consolidated Laws.) § 8. Enforcement of lien by action. An action may be maintained to foreclose a lien upon a chattel, for a sum of money, in any case where such a lien exists at the commencement of the action. The action may be brought in any court, of record or not of record, which would have jurisdiction to render a judgment, in an action founded upon a contract, for a sum equal to the amount of the lien. (Lien Law, § 206. See B. C. & G. Consolidated Laws.) § 9. Seizure of chattels in action. Where the action is brought in the supreme court, the city court of the city of New York, or a county court, if the plaintiff is not in possession of the chattel, a warrant may be granted by the court, or a judge thereof, commanding the sheriff to seize the chattel and safely keep it to abide the final judgment in the action. The provisions of title third of chapter seven of the code of civil procedure may apply to such warrant, and to the proceedings to procure it, and after it has been issued, as if it was a warrant of attachment, except as otherwise expressly prescribed in this article. (Lien Law, § 207. See B. C. & G. Consolidated Laws.) § 10. Judgments in foreclosure action. In an action brought in a court specified in the last section, final judg- ment, in favor of the plaintiff, must specify the amount of the lien, and direct a sale of the chattel to satisfy the same and the costs, if any, by a referee appointed thereby, or an officer designated therein, in like manner as where a sheriff sells personal property by virtue of an execution; and the application by him of the proceeds of the sale, his fees and expenses, to the payment of the amount of the lien, and the costs of the action. It must also provide for the payment of the surplus to the owner of the chattel, and for the safe keeping, of the surplus, if necessary, until it is claimed by him. If a defendant, upon whom the summons is personally served, is liable for the amount of the lien, or for any part thereof, it may also award payment accordingly. (Lien Law, § 208. See B. C. & G. Consolidated Laws.) FOKECLOSUKE OF LIEJ^S UPON CHATTELS. 333 § 11. Actions in inferior court. Where the action is brought in a court, other than one of those specified in section two hundred and seven, if the plaintiff is not in possession of the chattel, a warrant, commanding the proper officer to seize the chattel, and safely keep it to abide the judgment, may be issued, in like manner as a warrant of attachment may be issued in an action founded upon a contract, brought in the same court j and the provisions of law applicable to a warrant of attachment, issued out of that court, apply to a warrant, issued as prescribed in this section, and to the proceedings to procure it, and after it has been issued; except as otherwise specified in the judgment. A judgment in favor of the plaintiff, in such an action, must correspond to a judgment, rendered as prescribed in the last section, except that it must direct the sale of the chattel by an officer to whom an execution, issued out of court, may be directed ; and the payment of the surplus, if its safekeeping is necessary, to the county treasurer, for the benefit of the owner. (Lien Law, § 209. See B. C. & G. Consolidated Laws.) § 12. Application of certain sections of Lien Law. Sections two hundred and six to two hundred and nine inclusive do not affect any existing right or remedy to foreclose or satisfy a lien upon a chattel, without action ; and they do not apply to a case, where another mode of enforcing a lien upon a chattel is specially prescribed by law. (Lien Law, § 210. See B. C. & G. Consolidated Laws.) 334 CIVIL LAW AND PKACTICE. OHAPTEK XVII. SUMMARY PEOCEEDINGS TO EECOVEE POSSESSION OF REAL PEOPEETY. Section 1. Nature and scope of remedy. 2. Necessity of relation of landlord and tenant. 3. Non-payment of rent. 4. Notice to quit. 5. Notice to tenant in default. 6. Holding over after sale. 7. Squatters. 8. Jurisdiction of justices. 9. The petitioner. 10. The petition. 11. Precept. 12. Proceedings on return of precept. 13. Final order. § 1. Nature and scope of remedy. The cases to -which the remedy by way of summary proceeding for the recovery of the possession of real property is applicable are classified by the statute into three general groups, distinguishable principally by the difference in the original relations of the parties to the proceeding, or of their predecessors, to the real property of which possession is sought. In the first group the proceedings are directed against persons who went into possession of the real property as tenants, but whose right to con- tinued possession has terminated in some of the ways specified in the statute. (Code Civil Pro., § 2231.) In the second group, the proceedings are directed agaiiist persons between whom and the owner of the premises the relation of landlord and tenant never existed, and whose right to possession, if once existent, has terminated. (Id., § 2232.) In the third group, the proceedings are directed against persons who obtained possession of premises by force, or who are holding possession by force. (Id., § 2233.) § 2. Necessity of relation of landlord and tenant. Under sections 2232 and 2233, the relation of landlord and tenant need not exist, but under section 2231, such relation is essential. {People ex rel. Ainslee v. Howlett, 76 N. Y. 574.) The question of actual legal title to the real estate does not ordinarily arise. {People ex rel. Hill v. Kelsey, 82 Misc. 491, 144 N. Y. Supp. 135.) It does not apply to every case where one claims ownership and the other possession; but only where he SUMMAEY PROCEEDINGS. 335 who is in possession has, by some agreement, assumed the character of a tenant of the other party, so that he is not in position to dispute his title. (Benjamin v. Benjamin, 5 IS. Y, 383 ; Schreiher v. Goldsmith, 25 Misc. 45 ; Dodin v. Dodin, 32 Misc. 208.) The relation of landlord and tenant cannot be created by operation of law (Matter of Stochwell v. 'Wash- hurn, 59 Misc. 543) ; and if the relation is claimed to have been founded upon an agreement, and the agreement is void, the relation is not estab- lished. {People ex rel. Ainslee v. Hewlett, 76 N. Y. 574.). Where, in summary proceedings, the tenant admits that he is the tenant in possession of the premises in question, but denies that any attornment has taken place between him and the party plaintiff, he is precluded from controverting his landlord's title. (Barnes v. Angel, 61 How. 157.) § 3. Nonpayment of rent. A landlord may institute proceedings to recover possession of the premises for nonpayment of rent, notwithstanding a covenant to pay for improvements at the expiration of the term. (Paine v. Trinity Church, 7 Hun, 89.) Whenever a tenant is proceeded against, under the statute, on the ground that he holds over without the permission of his landlord, after default in the payment of rent pursuant to the agreement under which the prem- ises are held, it must be made to appear not only that such holding over is without permission of the landlord, but that the tenant holds the premises under the agreement pursuant to which the rent is claimed to be due, at the time the proceedings are instituted. If the tenant is then holding under some new agreement with the landlord he cannot be dispossessed under the statute on the ground that he is in default in the payment of rent under a prior agreement. (Burnett v. Scrihner, 16 Barb. 621.) If the tenant has been evicted by the landlord against his objection, from a substantial portion of the demised premises, according to a long line of authority such an eviction precludes the recovery of rent accruing subsequent to the eviction and while it continues. (Murphy v. Oedney, 10 Hun, 151.) § 4. Notice to quit. If the person to be removed is a tenant at will or at sufferance, the statutory notice to quit must be served upon him before instituting the proceedings of his removal. (Code Civil Pro., § 2236 ; Burhhart v. Tucker, 27 Misc. 724.) Such a tenancy may be terminated by a written notice of not less than thirty days, given in behalf of the landlord to the tenant. 336 CIVIL LAW AND PKACTICE. requiring him to remove from the premises, served either by delivery to the tenant, or to a person of suitable age and discretion residing upon the premises, or if neither the tenant nor such a person can be found, by affixing it upon a conspicuous part of the premises, where it may be con- veniently read. At the expiration of thirty days after the service of such notice, the landlord may re-enter, maintain ejectment, or proceed in the manner prescribed by law to remove the tenant without further or other notice to quit. (Real Property Law, § 228. S^e B. C. & G. Consolidated Laws.) Where the duration of the tenant's term is fixed, as where the tenancy is from year to year, or from month to month, the notice pre- scribed by the Real Property Law is not necessary to terminate the tenancy. (Adams v. City of Cohoes, 127 IST. Y. 175 ; Park v. Castle, 19 How. 29; People ex rel. Oldhouse v. Goelet, 64 Barb. 476.) In case of a tenancy at will the notice to quit need not terminate with the end of the month. {Peer v. O'Leary, 8 Misc. 350, 28 X. Y. Supp. 687.) Where the proceeding is to be brought under section 2232 of the Code, a notice requiring all persons occupying the property to quit the same by a day specified must be served either personally upon the person or per- sons to be removed, or affixed conspicuously upon the property, at least ten days before the day specified therein, and before the commencement of the summary proceeding. (See Code Civil Pro., §§ 2232, 2236.) A tenancy from year to year is a tenancy for one or more years. Such a tenant may be proceeded against at the expiration of any year of his tenancy without notice to quit. {Parle v. Castle, 19 How. 30.) A tenant who holds over a definite term for a brief period without the consent of his landlord, does not thereby become a tenant by sufferance, and is not entitled to notice to quit before the commencement of sum- mary proceedings. To entitle him to notice, holding over must be con- tinued for such length of time and under such circumstances as to author- ize the implication of assent upon the part of the landlord. {Smith v. Littlefield, 51 N. Y. 539.) Where a tenant is allowed to occupy premises without being limited to any term, and without any fixed rent being reserved, but only such rent as the premises, or the occupation thereof was worth ; this is a tenancy at will, and therefore within the provisions of the statute relating to summary proceedings to recover the possession of land. {Sarsfield v, Healy, 50 Barb. 245.) Where a lease provides that on a breach of any of the conditions therein specified, at the option of the landlord the tenancy shall cease without notice, nonpayment of rent does not constitute such a breach as to authorize proceedings without notice. {Beech v. Nixon, 9 'N. Y. 35.) SUMMAKY PKOCEEDINGS. 337 § 5. Notice to tenant in default. The notice served under subdivision 2 of section 2231 of the Code requiring the tenant to pay his rent vfithin three days or to surrender the possession of the demised premises may properly be signed by the agent for the landlord. (Powers v. Deo, 64 App. Div. 373; Moore v, Conglin, 127 App. Div. 810.) The strict practice which prevailed at common law requiring the petitioner in order to maintain summary proceedings for nonpayment of rent to show that he had demanded the precise sum due and upon the premises, if the proceeding was founded upon a demand, has no existence under the Code. (Id.) If a demand of the payment of rent was made upon the demised premises the day it was due it will be sufficient to sustain the proceeding although an alternative three-day notice was not served. (Heinrich v. Mack, 25 Misc. 697.) But the demand must be a personal one, and not a mere bill for rent served by mail (Zinsser v. Herrman, 23 Misc. 645) ; and must be for the payment of the rent absolutely as distin- guished from the three days' notice to pay or surrender possession of the premises. (Boyd v. Milone, 24 Misc. 734; Tolman v. Heading, 11 App. Div. 264; People ex-rel. Simon v. Oross, 50 Barb. 231.) § 6. Holding over after sale. Where the proceeding is brought under subdivision 2 of section 2232 of the Code, by a purchaser at a sale under a judgment of foreclosure in an action, the proceeding must fail, as the remedy in such case is by application for an order in the nature of a writ of assistance, the remedy given by subdivision 2 being limited to the case of a foreclosure by advertisement. (Greene v. Geiger, 46 App. Div. 210.) Proceedings under this subdivision of section 2232 cannot be maintained where the foreclosure was by advertisement conducted by commissioners for the loan of certain funds of the United States. (People v. Burdicks, 52 Hun, 348, 5 K Y. Supp. 363.) To authorize the purchaser of property at a sale under an execution to maintain this proceeding under subdivision 2 of section 2232 of the Code, it must appear that the sale was duly advertised and conducted as a sale of real property. (MitnacM v. Cocks, 65 How. 84.) The defendant in the execution may attack the validity of the execution sale in the proceedings to dispossess him. (Matter of Manson v. Wermuth, 182 N. Y. 234.) § 7. Squatters. A person who acquires possession of premises without the consent and against the will of the holder of the legal title may be proceeded against 22 338 CIVIL LAW AJSTD PEACTICE. as an intruder under subdivision 4 of section 2232 of the Code. (O'Donnell v. Mclntyre, 41 Hun, 100.) A proceeding based on the non- payment of rent cannot be sustained on the theory that the person pro- ceeded against was a squatter. {Morgan v, Morgan, 150 iN". Y, Supp. 554.) § 8. Jurisdiction of justices. Section 2234 of the Code states generally to what judicial or other officers an application may be made for the precept which is the first pro- cess issued in this proceeding; and section 2235 states what persons may make the application, and upon what papers. The statutory remedy by way of a summary proceeding for the recovery of possession of real property is in derogation of the common-law remedy by action and must be strictly pursued. {Katz v. SchrecJcinger, 52 Misc. 160, 101 N. Y. Supp. 743; Beach v. McGovern, 41 App. Diy. 381, 58 N". Y. Supp. 493; Benjamin v. Benjamin, 5 N. Y. 383; Miner v. Burling, 32 Barb. 540; Fuchs v. Cohen, 29 Abb. N. C. 56, 19 ]S^. Y. Supp. 236. But see Code Civil Pro., § 2245.) A peculiar and limited jurisdiction is conferred by the statute upon certain- magistrates, and this jurisdiction can be exercised only in the way prescribed. (Potter v. New York City Baptist Mission Society, 23 Misc. 671, 680.) They have no jurisdiction to try the cause except by the mode pointed out. § 9. The petitioner. A landlord who has leased the premises to a tenant who has not yet taken possession, may maintain summary proceedings to eject a stranger who has unlawfully entered upon the premises. (Davidson v. Hammer- stein, 28 Misc. 529, 59 IT. Y. Supp. 563.) So one entering upon lands with the consent and by the collusion with the tenant, may be removed by the landlord as an intruder. (O'Donnell v. Mclntyre, 41 Hun, 100.) The proceedings may be maintained by and in the name of the agent of the landlord (Case v. Porterfield, 54 App. Div. 109, 66 ¥. Y. Supp. 337; Powers v. De 0, 65 App. Div. 373, 72 'N. Y. Supp. 1103; Matter of Stuyvestant Real Estate Co., 40 Misc. 205), or by the agent of one of two landlords who are tenants in common and colessors of the demised premises. (Wychoff v. Frommer, 12 Misc. 149.) But when the petition is made by an agent, proof must be given of his authority. (Havemeyer v. Stoddard, 148 IST, Y. Supp. 256.) But one partner who has leased premises to his firm under an agreement by the latter to pay rent cannot maintain this proceeding against his firm for nonpayment of rent. (Bailey v. Crowell, 13 Misc. 63.) SUMMARY PEOCEEDINGS. 339 § 10. The petition. The petition upon which the proceeding is based, and upon which the jurisdiction of the justice depends, must be verified in like manner as a verified complaint in the Supreme Court (see Matter of Stuyvestant Real Estate Co., 40 Misc. 205), and must describe the premises of which the possession is claimed, and the interest therein of the petitioner or of the person whom he represents (see Underhill v. Cohen, 61 Misc. 627; Cram V. Dietrich, 38 Misc. 790; Engle, Heller Co. v. Elias Brewing Co., 37 Misc. 480; Ferber v. Apfel, 113 App. Div. 720), as this description is an essential part of the petition in order to confer jurisdiction. (Id.) Facts must be stated showing that the conventional relations of landlord and tenant existed between the parties. (Dreyfus v. Carroll, 28 Misc. 222.) The courts have frequently held that a petition is fatally defective and insufficient to confer jurisdiction which sets up the petitioner's interest as being that of "landlord." (Ferber v. Apfel, 113 App. Div. 720; Matthews v. Carman, 122 App. Div. 582.) If the petition is made by an agent, an allegation that the petitioner was the agent of the plaintiff who was the landlord, and as such agent entered into an agreement with the party as tenant, and by the terms thereof the tenant hired from the landlord the premises in question, has been held a sufficient statement of the interest of the petitioner to comply with the requirements of section 2235 of the Code and confer jurisdiction upon this justice. (Cappel v, Loudon, 61 Misc. 652 ; Slater v. Waterson & Laiv Amusement Co., 58 Misc. 215; Rowland v. Dillingham, 83 App. Div. 156.) The petition should also state the facts as to the service and contents of any notice required by the statute (Code Civil Pro., §§ 2236, 2237.) For the form of a petition on failure of a tenant to pay rent, see Form 'Eo. 110. § 11. Precept. On presentation of a petition conforming to the requirements of the statute, the justice should issue the precept prescribed by section 2238 and in a proper ease by section 2242 of the Code (see Form JSTo. Ill), which should be served by the constable as directed in section 2240 or section 3242 of that act. If the precept is served otherwise than personally upon the person to whom it is directed a copy of section 2241 of the Code must be indorsed upon each copy of the precept so served; and if service is made by affixing a copy of the precept upon a <3onspicuous part of the property as provided in subdivision 3 of section 2240, the return of the constable should show that service could not be made as prescribed in sections 1 and 2 of that section, as otherwise the justice will not acquire 340 CIVIL LAW AND PEACTICE. jurisdiction by the service. (Beach v. Bainbridge, 1 Hun, 81 ; Matthews V. Carmon, 182 App. Div. 582. See Code Civil Pro., § 2243.) § 12. Proceedings on return of precept. At the time of the return of the precept, without waiting as prescribed in an action before a justice of the peace, the person to whom the precept is directed, or his landlord, or any person in possession or claiming posses- sion of the premises or any part thereof, may answer, orally or in writing, denying generally the allegations, or specifically any material allegation of the petition, or setting forth a statement of any new matter constituting a legal or equitable defense or counterclaim. Such defense or counterclaim may be set up and established in like manner as though the claim for rent in such proceeding was the subject of an action. If such answer be oral the substance thereof shall be endorsed upon the petition. (Code Civil Pro., § 2244. See Form No. 112.) If the application is founded upon an allegation of forcible entry or forcible holding out, the issues thus raised must be governed by the pro- visions of section 2245 of the Code. The issues will be tried by the justice unless a jury is demanded and the costs and expenses of obtaining a jury are paid, and the proceedings on the trial will be substantially the same as on a trial of an action in a justice's court. (Code Civil Pro., § 2247; Goff v. Vedder, 12 Civ. Pro. Rep. 358 ; People v. Loomis, 2 Civ. Pro. Eep. 278.) The justice has power at the time when issue is joined to adjourn the trial of the issues to enable a party to procure necessary witnesses. (Code Civil Pro., § 2248.) And he may also grant an adjournment, in his dis- cretion, for any other cause, when it appears that an adjournment should be had. {Goff v. Vedder, 12 Civ. Pro. Eep. 358.) The party proceeded against has a right to a reasonable time in which to prepare to meet the issues presented by the pleadings. It is almost the universal practice upon the return day of process, and almost as a matter of course, to grant an adjournment without any substantial reason being given; and un- seemly hast to rush the proceeding will not be countenanced. {Trunk v. Howard Laundry Co., 56 Misc. 440, 107 N. Y. Supp. 66.) Such at least is the rule as to adjournments in a proceeding pending in the Municipal Court of the city of New York. (See Mahar v, Edwards, 59 Misc. 488.) § 13. Final order. If sufficient cause is not shown upon the return of the precept; or if the verdict of the jury, or the decision of the justice upon a trial without a jury, is in favor of the petitioner, the justice must make a final order SUMMAKY PEOCEEDINGS. 341 awarding to the petitioner the delivery of the possession of the property ; except that, where the case is within section 2237 of the Code, the final order must direct the removal of the occupant. In either case the final order must award to the petitioner the costs of the special proceeding. If the verdict or decision is in favor of the person answering, the justice must make a final order accordingly and awarding to him the cost of the special proceeding. (Code Civil Pro., § 2249.) There is no judgment, technically speaking, at the termination of this proceeding. The termina- tion is a final order. (Steuerwald v. Jackson, 123 App. Div. 569.) In a summary proceedings to dispossess a tenant for nonpayment of rent, three questions are involved and are necessarily and finally determined in the landlord's favor if he succeeds.' These are: First, that the relation of landlord and tenant exists, or, in other words, that the tenant holds under a valid lease; Second, that the tenant has entered into possession; and Third, that the tenant has defaulted in payment of rent. And in such a proceeding a judgment by default is as conclusive as one rendered after defense and litigation. (Reich v. Cochran, 151 N. Y. 122 ; Meyerhoffer V. Baker, 121 App. Div. 797, 106 ¥. Y. Supp. 718.) The final order is erroneous if it simply awards the petitioner the amount of rent due. It should award possession of the premises and not damages for unpaid rent. (Liedtke v. Meyer, 137 App. Div. 74, 122 N. Y. Supp. 951.) For form of final order see Form No. 113. The final order terminates the lease so that summary proceedings cannot be subsequenty maintained under the same lease, (Alexander v. Eapkvn, 148 ISr. Y. Supp. 117.) The costs, allowed in this proceeding are collected as prescribed in section 2250 of the Code. The final order, if in favor of the petitioner, is enforced by a warrant (Code Civil Pro., § 2251. See Form No. 114), unless the other party procures a stay as provided in section 2254 or section 2265. The Code also provides for redemption by the lessee, or by a creditor of the lessee, in certain cases (§§ 2256-2259), and for an appeal from the final order. (§2260.) 342 CIVIL LAW AND PKACTICE. CHAPTEE XVIII. PEOCEEDINGS AGAINST STEAYS UPON THE HIGHWAY. Section 1. Remedies for strays on highways. 2. Petition.^ 3. Precept. 4. Proceedings upon return of precept. 5. Demand of possession of animal seized. 6. Appeal. § 1. Remedies for strays on highways. The Code authorizes the maintenance of an action for a penalty against a person who suffers or permits one or more cattle, horses, colts, asses, mules, swine, sheep, or goats, to run at large, or to be herded or pastured, in a public street, highway, park or place, elsewhere than in a city (Code Civil Pro., §§ 3082, 3083) ; and it authorizes a special proceeding (Matter of Rajferty, 14 App. Div. 55, 43 N. Y. Supp. 760), having for its object the seizure and sale, by due process of law, of such animals so running at large, straying herded or pastured. (Code Civil Pro., §§ 3084-3115.) It therefore authorizes certain officers (Id., § 3084), or a private person, own- ing or occupying real property bordering upon the highway (Id., § 3085), to seize such animals and keep them in possession until disposed of as therein prescribed. The phrase " running at large," implies permission or assent, or at least some fault on the part of the owner. When animals escape from their owner, after due precaution to secure them has been taken, and with- out fault or negligence on his part, and he takes immediate and suitable efforts to recover them, they cannot be said to be running at large. (Coles V. Bums, 21 Hun, 246.) It is sometimes necessary to drive cattle along a highway, and such use of highways is lawful, (Wood v. Snider, 187 ]Sr. Y. 28.) § 2. Petition. Where cattle have been seized while straying or running at large upon the highway, the officer or person making such seizure is required to immediately file a written, verified petition with the justice of the peace of the town in which the seizure was made, setting forth the facts which bring the case within section 3084 or section 3085 of the Code; and containing also the other allegations and matters required by section 3086 PEOCEEDINGS AGAINST STEAYS. 343 of that act. (See Form No. 105.) A final order of the justice in favor of the petitioner will be set aside on appeal if the petition fails to allege every fact necessary to authorize the seizure. (Burns v. Morrow, 42 Misc. 657, 87 N. Y, Supp. 719.) And: it has been held in respect to the statute from which these Code provisions were derived, that " as the statute is in derrogation of the common law for the protection of private rights it must be construed strictly, and limited by such construction to the object which the Legislature intended to accomplish." (Coles v. Bums, 21 Hun, 246. But see Code Civil Pro., § 3345.) § 3. Precept. Upon the presentation of the petition the justice must issue the precept prescribed by section 3087 of the Code. (See Form No. 106.) This precept must be served as provided in section 3088 of the Code, and proof of service made as provided in section 3089. § 4. Proceedings upon return of precept. The owner, or a person having an interest in any animal seized, includ- ing a person who at the time of the seizure was entitled to the possession of the animal, as against the general owner, by virtue of a special property therein (Code Civil Pro., § 3114), or the agent of such owner or person so entitled (Id., § 3115), may appear upon the return of the precept and thereby make himself a party to the special proceeding, and may then file an answer in the form and to the effect stated in section 3090 of the Code, and the subsequent proceedings must be the same as in an action in a justice's court wherein an issue of fact has been joined, except as otherwise specially prescribed. If no person appears and answers, or if the decision of the justice, or the verdict of the jury, where the issues were tried by a jury, is in favor of the petitioner, the justice must make a final order as provided in section 3091 of the Code (see Form No. 107), and thereupon issue a warrant, under his hand, directed generally to any constable of the county, commanding him to sell the animal or animals seized, at public auction, for the best price which he can obtain therefor, and to make return thereof to the justice, at a time and place therein specified, not less than ten nor more than twenty days thereafter. (See Form No. 108.) The sale must be made upon like notice, and in like manner, as a sale by virtue of an execution issued by a justice of the peace (see ante, p. 228) ; and the constable must make return as required by the warrant, and must pay the proceeds of the sale to the justice, dedvicting therefrom his fees, at the rate allowed by law for the collection of such an execution. (Code Civil 344 CIVIL LAW AND PEACTICE. Pro., § 3091, For the fees allowed see Id., § 3323.) The justice must thereupon apply the proceeds of the sale as provided in section 3092 of the Code; and, if any surplus remains, must dispose of it as directed in sections 3093, 3094 or 3095 of that act. Section 3096 of the Code directs the procedure to he followed where th© decision of the justice, or the verdict of the jury, where the issues were tried hy a jury, is in favor of the person answering. § 5. Demand of possession of animal seized. At any time after the precept before mentioned is issued, and before the commencement of the trial, the owner of any animal sized (Code Civil Pro., § 3097), or a person entitled to the possession of the animal, as against such owner by virtue of a special property therein (Id., § 3114), or the autorized agent of such owner or person (Id., § 3115), may file with the justice a written demand of the possession thereof and there- upon will be entitled to possession upon complying with the terms pre- scribed in section 3097 of the Code, or in a proper case, upon compliance with the requirements of section 3098 of that act. So a person entitled to demand possession of an animal as prescribed in section 3097, who did not appear upon the return of the precept, or upon the trial, may file with the justice a written demand of the possession, at any time after the final order, and not less than three days before the time appointed for the sale, and thereupon become entitled to possession, upon complying with the terms prescribed by section 3101 of the Code. Upon a demand so made, either before or after the final order, the justice must, when requested by either party, make and enter in his minutes an order determining the same. (Code Civil Pro., § 3102.) § 6. Appeal. An appeal may be taken from the final order made upon a petition. (Id., § 3104.) The proceedings where several animals were trespassing, and where there are different ovsmers, are pointed out in section 3109, 3110 and 3111 of the Code, and the manner in which the proceedings heretofore mentioned are affected thereby. APPEALS. 345 CHAPTEE XIX, APPEALS. Section 1. Right to appeal. 2. When taken. 3. How taken. 4. Undertaking. 5. When appeal is perfected and cause removed to appellate court. 6. Curing defects in appeal proceedings. 7. Return. 8. Appeal upon error of fact. 9. Review when new trial not demanded. 10. Directing a new trial in justice's court. 11. Appeal for new trial in appellate court. 12. Proceeding in appellate court on appeal for new trial. § 1. Right to appeal. The right to appeal is statutory and can be taken only from such judicial determinations as are designated, expressly or impliedly, by the statute authorizing the appeal, and the right must be exercised within the time and in the mode prescribed. (GarczynsJci v. Russell, 75 Hun, 512 ; Jones V. Sabin, 122 App. Div. 666.) However irregular the procedure in jus- tice's court, it can be reviewed only by an appeal taken in the prescribed manner. {Bennett v. Cole, 173 App. Div. 521, 159 JST. Y. Supp. 1001.) The only mode of reviewing a judgment rendered by a justice of the peace in a civil action is by appeal as prescribed in title 8 of chapter 19 of the Code of Civil Procedure. (Code Civil Pro., § 3044.) The only person who has a right to appeal from the judgment is a party aggrieved thereby. (Id., § 3045.) This may be either the defeated or the suc- cessful party; or both parties may deem themselves aggrieved by the judgment and appeal therefrom. {Jones v. Owen, 5 Hun, 339.) If the action was originally commenced against two defendants jointly, but by consent was dismissed as one and continued as to the other, the defendant as to whom the action was dismissed by a judgment rendered in favor of his codefendant has no right of appeal. {Jerry v. Blair, 62 App. Div. 590.) The action of the justice in dismissing the case on the ground that the title to real estate is involved by the answer, is appealable to the County Court. {Base v. Purcell, 64 Misc. 674, 120 N. Y. Supp. 860.) An appeal may be taken from an order determining a claim to the surplus of the proceeds of the sale of animals sold in proceedings against 34:6 CIVIL LAW AN"D PRACTICE. stiays upon highways (Code Civil Pro., § 3095) ; from a final order in such proceeding (Id., § 3104) ; from a final order in summary proceedings to recover possession of real property (Id., § 2260) ; and from a judgment in an action to enforce a mechanic's lien upon real property. (Lien Lavs', § 51.) While these several appeals have some distinctive features, they in the main follow the procedure prescribed for appeals from judgments. The matter following will be confined to the outlines of the practice on an appeal from a judgment rendered in an action in a justice's court. § 2. When taken. An appeal from a justice's judgment must be taken within twenty days after the entry of the judgment in the justice's docket (Code Civil Pro., § 3046) regardless of the time when entered in his minutes (Beuerlin v. Hodges, 10 N. Y. Supp. 505), or within twenty days from the time when the judgment wa^ entered by the justice in his docket-book and the docket-book was open for inspection by the public. If the justice enters the judgment in his docket at night, locks the book in his safe, and then goes away for his health, the twenty days in which to appeal will not com- mence to run until the docket is again open to the public. (Reid v. Defendorf, 87 Hun, 40.) So if the defendant appeals from a judgment in an action in which he did not appear, and there was no personal service of the summons upon him, the appeal may be taken within twenty days after service upon him on the part of the plaintiff of written notice of the entry of judgment, if within five years of such entry. (Code Civil Pro., § 3046.) The day on which the judgment is entered is to be excluded in making the computation of the time limited, and also Sunday if that is the last day. (Dorsey v. Pike, 46 Hun, 112 ; General Construction Law, §20.) § 3. How taken. The appeal must be taken by serving a written notice of appeal, sub- scribed by the appellant or by his attorney in the appellate court, upon the justice by whom the judgment was rendered and paying to him or his clerk the costs of the action and the fee of the justice for making a return, as prescribed in section 3047 of the Code, and by also serving the notice upon the respondent as prescribed in section 3048 of that act. (Code Civil Pro., § 3046.) If the appellant desires and is entitled to a new trial in the appellate court he should demand it in his notice of appeal. (Id., § 3068.) Por a form of the notice see Form No. 79. In case of the death of a party in whose favor judgment was rendered between the docketing of the judgment and the expiration of the time to APPEALS. 347 appeal, service on the widow of the decedent to ^hom letters testamentary or of administration have not been issued, is unauthorized, and will not effect an appeal, (Clark v. Snyder, 40 Hun, 330.) If the respondents are copartners service upon one will be sufficient. (Miller v. Perrme, 1 Hun, 620.) Payment of the costs included in the judgment is necessary to perfect the appeal, and if not paid the appeal will be dismissed (Kenney v. Livery Stable Keepers' Ass'n, 89 Hun, 190 ; Ooss v. Hays, 40 App. Div. 557) unless the appellate court permits them to be paid nunc pro tunc under the power conferred by section 3049 of the Code. (Id.) So pay- ment of the fees of the justice for the return is necessary to render the appeal effectual, and if not so paid or relinquished the appeal will be dis- missed. (Thomas v. Thomas, 18 Hun, 481.) If, however, the appellant pays all the costs which the justice states to be due, the appeal will not be dismissed because the fee of the justice for filing the return was not paid within the time required, as the justice could waive his fee. (Mann v. Dennis, 3 IST. T. Supp. 95, 20 IST. Y. St. Eep., 195.) The costs which an appealing party is obliged to pay do not include $10 costs awarded to abide the event by the County Court upon the reversal of a prior judg- ment. (Dighy v. Aldinger, 69 Misc. 557, 125 N. T. Supp. 495.) The statute requires that the service of the notice of appeal upon the justice must be made by delivering it to him personally, or to his clerk pursuant to law, or by mailing the notice to the justice at his office, unless the justice is dead or cannot be found, after reasonable diligence, within the county. (Code Civil Pro., § 3047.) This requirement of the statute may be complied with by sending the notice of appeal, and the required costs and fees, to the justice by registered letter, and the notice of appeal may be served upon the respondent in the same manner. (Mitchell v. Watkins, 21 App. Div. 285.) § 4. Undertaking. If the appellant desires a stay of execution he must give the undertaking prescribed by section 3050 of the Code, deliver it to the justice, or to his clerk appointed pursuant to law, and serve a copy, with notice of the delivery thereof, upon the respondent with the notice of appeal, and in like manner. This will stay the issuing of an execution upon the judg- ment. But if an execution has been issued, the appellant should have a copy of the undertaking certified by the justice or his clerk, or make an affidavit showing that it is a copy and that the original has been duly filed, and serve the copy undertaking so certified, or the copy undertaking and affidavit, upon the officer holding the execution. This will stay further 348 CIVIL LAW AlsB PRACTICE. proceedings under the execution. Section 1335 of the Code applies to such an undertaking. (Code Civil Pro., §§ 3050, 3051.) For a form of such undertaking see Porm No. 80. For form of a notice of the delivery of the undertaking see Form jSTo. 81. Service of a copy undertaking upon the officer holding the execution ■will not excuse the appellant from serving the copy undertaking upon the respondent as above provided, and without such service the proceedings upon the execution will not be stayed. (^Yells v. Daivson, 43 Hun, 509.) Ifeither will the execution be stayed by the service of a copy of the undertaking upon the respondent which has not been approved either by the justice who rendered the judgment or by a judge of the appellate court, as required by section 3050 ; for although that section provides that section 1335 applies to such undertaking, and the latter section provides that it is not necessary that the undertaking should be approved, that section applies only so far as it is not inconsistent with what is specifi- cally provided by section 3050 of the Code. (Hawley v. Kraemer, 35 Misc. 444. See also Code Civil Pro., § 3134.) Section 1335 provides that the " attorney for the respondent may, within ten days after the service of a copy of the undertaking, with notice of the filing thereof, serve upon the attorney for the appellant, a written notice that he excepts to the sufficiency of the sureties. ^Yithin ten days thereafter, the sureties, or other sureties in a new undertaking to the same effect, must justify before the court below, or a judge thereof, or a referee appointed by the same or a county judge. At least five days' notice of the justifi- cation must be given. * * * The effect of a failure so to justify and procure an allowance is the same as if the undertaking had not been given." A notice of justification served nine days after the service of the notice of exception to the sureties, and fixing the time of such justification five days later, is a nullity and may be so treated. (Lewin v. Towhin, 51App. Div. 477.) Where the appellant is not entitled to a new trial in the appellate court, or has not demanded such new trial in his notice of appeal, it is optional with him whether he will give the undertaking to stay execution, or will take the chance of a reversal of the judgment and of obtaining restitution under section 3058 of the Code. But where the appellant has demanded a new trial in the appellate court, he must give the under- taking required to stay execution at the time of the service of the notice of appeal upon the justice, in order to comply with the statute and render the appeal effectual. (Code Civil Pro., § 3069 ; Slattery v. Haskin, 42 Hun, 86 ; LaucJi v. Oorman, 85 Misc. 491, 148 IST. Y. Supp. 933. And see Walrath v. KlocTc, 22 App. Div. 220.) An oral stipulation to waive APPEALS. 349 the undertaking is ineffectual; and the appearance upon the appeal and noticing and moving the case for trial, do not preclude the party from moving to dismiss the appeal, but in some cases the court may permit the undertaking to be filed subsequently. (Lauch v. Gorman, 85 Misc. 491, 148 K". Y. Supp. 933.) The appeal is not dismissed because of the fail- ure to give a bond, but stands as an appeal upon questions of lavr only. (Harrison Bros. Co. v. Excelsior Bag and Mfg. Co., 180 App. Div. 790, 168 IsT. Y. Supp. 291.) In case of the death of the justice, or of inability to find him or his clerk within the county, proceedings may be taken as provided in section 3052 of the Code. § 5. When appeal is perfected and cause removed to appellate court. The service of the notice of appeal in the manner directed by the statute and the payment of the costs included in the judgment and the fee of the justice for making a return are all that is required to perfect an appeal from a judgment rendered bj a justice of the peace, unless the appellant has in his notice of appeal demanded a new trial in the appellate court, and, in that case, the filing and service of the undertaking required to stay execution is necessary to perfect the appeal. When the appeal is perfected, even before the return is filed, the case is removed from the subordinate to the appellate court, (Adams v. Fox, 27 ISr. Y. 640; Cutting v. Jesmer, 101 App. Div. 283.) Section 3071 of the Code of Civil Procedure prescribing the time when issue is deemed to be joined in the appellate court should be construed to relate to the issue only and in no way to affect the time when the action shall be deemed pending in the County Court. (Cutting v. Jessmer, 101 App, Div. 283.) It follows that all papers in proceedings subsequent to the time when the appeal is perfected should be entitled in the County Court. § 6. Curing defects in appeal proceedings. Section 3049 of the Code furnishes ample opportunity for an appellant to supply omissions or cure defects in his proceedings to perfect an appeal ; and any act on his part which constitutes a step in the proceeding to appeal, and which evinces his intention in good faith to prosecute an appeal, is a sufficient ground for an amendment. (Gutbrecht v. Prospect Park & C. I. B. R. Co., 28 Hun, 497.) It has been held that the power conferred by this section is to supply such omissions or grant such amendments as are necessary to perfect the appeal taken, and not to perfect another or 350 CIVIL LAW AND PEACTICE. different appeal, or to transform the appeal actually taken into an appeal for another purpose. (Thorn v. Roods, 47 Hun, 433.) But this strict construction of the section has not been universally adopted, and it is held that although an appellant has in his notice demanded a new trial to which he is not entitled, this does not render the whole notice inoperative, nor deprive him of the appeal which he has in fact taken; and that the County Court may, upon the appellant's application, remove the ease from the trial calendar and thereafter treat the case as an appeal taken under section 3046 of the Code, and if necessary make an order requiring the justice to make an amended return containing the evidence taken before him. {Doughty v. Picott, 105 App. Div. 339, and cases cited. See KinTc v. Norton, 36 Misc. 53.) The court may relieve the appellant from a failure to file the under- taking on an appeal for a new trial. (Lauch v. Gorman, 85 Misc. 491, 148 N. Y. Supp. 933.) But should do so only on condition that the appellant pay motion costs. (Eaton v. Potts, 96 Misc. 182, 159 IST. Y. Supp. 515.) § 7. Return. Section 3053 of the Code states the requisites of a return on appeal. The justice may file his return as soon after the service of the notice of appeal upon him as he desires, and is not obliged to wait ten days. (Lazarus v. Ludwig, 17 Misc. 365.) The justice must make a return although he has gone out of office (Code Civil Pro., § 3054), and if his return is defective a further return or an amended return may be com- pelled. (Id., §3055.) § 8. Appeal upon error of fact. The words " error of fact " as used in section 3057 of the Code have reference to some occurrence which affects the validity of the trial, such as service of process by one not authorized, infancy of a party for whom no guardian ad litem has been appointed, relationship of the justice, mis- conduct of the jury, and the like. (Fitch v Devein, 15 Barb. 47 ; Rose V. Smith, 4 Cow. 17 ; Sammis v. Nassau Light & Power Co., 91 App. Div. 7; Smith v. Cayuga Lake Cement Co., 105 App. Div. 307; Harvey v. Biohett, 25 App. Div. 87; Monroe v. White, 25 App. Div. 292; People ex rel Ballin v. Smith, 184 N. Y. 96, 99.) They have no reference to an erro- neous ruling or finding upon the evidence by the justice or a jury. (Adsit V. Wilson, 7 How, 64 ; Karson v. Mills, 8 Id. 377 ; Smith v. Cayuga Lake Cement Co., 105 App. Div. 307; Tarder v. Bezozi, 34 Misc. 551.) APPEALS. 351 § 9. Review when new trial not demanded. The judgment of a justice of the peace may be reversed upon appeal for any error in the proceedings had, which affects the substantial rights of the appellant. While the grounds of objection, as a rule, are not required to be stated before justices of the peace, yet, where trial was conducted by counsel and certain grounds of objection were in fact stated, an objection to the admission of certain evidence not made at the trial cannot be raised on appeal, where it is clear that such evidence did not cause the rendition of the judgment. (Brewer v. Delafield, 45 N. Y. Eep., 587, 18 IST. Y. Supp. 329.) Where the evidence is received without objection the competency of the evidence cannot be questioned on an appeal. This is especially so where the justice's attention was not directed to any incompetency in the evi- dence received. After judgment a party will be presumed to have waived any objection that he might have taken, on the trial, but omitted to take. (Rue v. Perry, 63 Barb. 40.) Technical precision is not required in an action before a justice, unless the objection is raised at the time of the trial, and where the parties go to trial upon a complaint, however defective, without objection on account of the defect, a judgment in favor of the plaintiff, if he proves a good cause of action, will be sustained. (Argensinger v. Levor, 17 Civi Pro. R. 352.) The County Court should disregard errors not affecting the merits and give judgment according to the justice of the case. It is within the dis- cretion of the justice to allow the plaintiff to give additional evidence after a motion for a nonsuit. (Reed v. Barber, 3 Code Eep. 160.) The jurisdiction conferred on county courts by section 3063 of the Code of Civil Procedure to reverse a judgment of a justice's court because it is against the weight of evidence is to be exercised only when the judg- ment is so plainly against the weight and preponderance of proof that it can be seen that the justice could not reasonably have arrived at the decision which he made. (Murtagh v. Dempsey, 85 App. Div. 204; Brewer v. Calijf, 103 App. Div. 138 ; Clinton v. Frear, 107 App. Div. 571 ilnternational Tailoring Co. v. Bennett, 113 App. Div 476 ; McRavy V. Barto, 114 App. Div. 262 ; Vandeymach v. Corhett, 131 App. Div. 391, 115 N. Y. Supp. 911; Wears v. Johnson, 151 App. Div. 770, 136 IST. Y. Supp. 316 ; Bame v. Qroat, 171 App. Div. 708, 157 K Y. Supp. 750 ; Doughty v. Kingsley, 96 Misc. 142 ; Becher v. Becker, 92 Misc. 382, 156 N. Y. Supp. 995.) The County Court in such cases is a court of review and not a court of original jurisdiction to decide facts. (Id.) 352 CIVIL LAW AND PKACTICE. But where the testimony establishes a ease directly, unequivocally, and consistently, and the witnes,ses stand unimpeaehed and uncontradicted, the justice cannot unreasonably discredit them ; and if he does, the judg- ment will be reversed as against the evidence. Where there is a disputed question of fact, upon which the case turned, before the justice, or in relation to which there was evidence on both sides, the judgment upon appeal should not be disturbed. It is for the justice to determine, where there is a conflict in evidence, which is the most credible; and when the justice's judgment is sustained by positive and corroborating testimony, the judgment upon appeal should be affLrmed. (Alfred v. Stevens, 63 Barb. 29 ; Rogers v. AcJcerman, 22 Barb. 134; Steams v. Hemwdns, 16 X. Y. St. Eep. 701; Fowler v. V(m Natta, 71 Hun, 341.) The admission of incompetent testimony by a justice to establish a fact proved by other testimony of a competent character is not such an error as requires the reversal of the judgment. But the improper admission of hearsay testimony which goes to the merits of the action is an error, for which the judgment will be reversed on appeal. (Sanford v. Shaver, 50 Hun, 600.) When there is sufficient legal evidence to support a judgment the appellate court will not reverse because improper and incompetent evi- dence was admitted in a justice's court. (Jackson v. Collins, 41 X. Y. St. Eep. 590, 16 X. Y. Supp.. 651 ; Wells v. Cohn, 55 Barb. 585 ; Earl V. Leffler, 46 Hun, 9 ; Frink v. Stevens, 88 Hun, 283.) The County Court should reverse a judgment rendered without sufficient evidence, although the defendant did not appear. (Everett v. Parks, 62 Barb. 9.) Where evidence is offered on trial before the justice and is objected to and excluded, and neither the grounds of the objection nor the object of the proof is stated, and the appellate court can see that a good objection might have been taken, it will presume that the proper objection was taken and the decision below made upon that ground. (Belloivs t. Sackett, 15 Barb. 96.) Where the respondent within twenty days after the taking of an appeal, stipulates that the judgment appealed from may be reversed, with five dollars costs and disbursements of the appeal, the judgment will be reversed pursuant to such stipulation, and where the court disregards the stipulation and enters judgment the remedy of the injured party is to move the County Court to set aside its judgment and for leave to enter an order pursuant to the stipulation. (Cucklo v. Kleis, 50 Hun, 600 ; Levis v. Burk, 51 Hun, 71.) Parties are not to be encouraged to bring an appeal from judgments of APPEALS. 353 justices' court where the error is trivial in amount, and such judgments should be reversed where substantial justice has been done between the parties. (Kilmer v. Messling, 10 Hun, 582.) And although a justice's judgment cannot be sustained upon the theory on which the case was tried, if it can be sustained upon a different theory, the appellate court will not reverse. (Jackson v. Helmer, 73 App. Div. 134.) § 10. Directing a new trial in justice's court. The purpose of section 3064 of the Code of Civil Procedure is to pro- vide a remedy for any fraud practiced or improper means employed by a party to induce his adversary not to appear either on the return day of the summons or on the day to which the trial was adjourned, or when such failure is the result of accident, mistake or other misadventure. {Thomas v. Keeler, 52 Hun, 318.) The County Court is a tribunal of limited jurisdiction and can exercise on appeal only such powers as are conferred upon it by statute. The power given to that court by section 3064 to direct a new trial of an action begun in a court of a justice of the peace, cannot be exercised unless the defendant renders a satisfactory excuse for his default; and where the defendant fails to do this, the direction of the County Court that a new trial be had in the court below, is erroneous. {De Bevoise v. Ingles, 88 Hun, 186.) The question whether the exercise of the discretion of the County Court in opening a default and granting a new trial, or in refusing to open the default and rendering a judgment of affirmance, can be reviewed on appeal to the appellate division is not clearly settled by the authorities. (See Kilts v. Neahr, 101 App. Div. 317, and cases cited ; and see Rosenberg v. Feiering, 124 App. Div. 522.) Under section 3063 the appellate court upon reversing a judgment of a justice on the ground that it is contrary to or against the weight of evidence, may grant a new trial before the same or some other justice. The right to grant a new trial under this section is limited to cases where the reversal is on the ground that the decision of the justice was against the weight of the evidence. When the appeal is taken on questions of law, the reversal must be absolute and a new trial will not be directed, and in such a case the costs are controlled by the statute and are not in the discretion of the appellate court. (Bobischon v. Moore, 135 App. Div. 699, 199 "N. Y. Supp, 252 ; Papenmeyer v. Roddy, 145 App. Div. 579, 129 K T. Supp. 868; Tichnor Bros., Inc., v. Bailey, 72 Misc. 638, 132 N. Y. Supp. 243 ; Trubenlach v. Nelson, 73 Misc. 466, 133 IT. Y. Supp. 388.) When the judgment of the justice is reversed on the ground that it is against the weight of evidence, but the County Court does not grant a 23 354 CIVIL LAW Al^D PEACTICE. new trial, the Appellate Division may modify the order of the County Court so as to provide for the granting of a new trial before the same justice. {Brown v. Sullivan, 155 App, Div. 875, 139 ~E. Y. Supp. 555.) § 11. Appeal for new trial in appellate court. A new trial cannot be had in the County Court where the appellant has not demanded it in his notice of appeal (Code Civil Pro., § 3068; Richardson v. Levi, 69 Hun, 432) ; nor where the sum for which judg- ment is demanded by either party in his pleading does not exceed fifty dollars {Tucker v. Pfau, 70 Hun, 59) ; nor where the amount claimed in the complaint is not sufiicient to entitle the parties to a new trial, and the matter pleaded as a counterclaim is not a proper counterclaim to the cause of action alleged in the complaint {Hall v. Werney, 18 App. Div, 565 ; Smith v. Bensselaerville Creamery Co., 131 App. Div. 387, 115 N". Y. Supp. 273 ; Maloy v. Bannon, 169 App. Div. 716, 155 IST. Y. Supp. 712) ; nor where neither an issue of fact or of law was joined before the justice. {Doughty v. Picott, 105 App, Div, 339.) An improper pleading cannot be made the basis of a demand for a new trial in the County Court {Hall v. Wemey, 18 App. Div. 565, 46 N. Y. Supp. 33) ; but when the counterclaim interposed by the defendant is sufficient and proper upon its face, although it may be false in fact, and pleaded for the mere purpose of obtaining a new trial upon appeal, the question of good faith will not be tried upon affidavits in the County Court, and that effect will be given to the pleading which the statute plainly directs. {Thompson v. Pine, 5 Hun, 647 ; Baum's Castorine Co. V. Thomas, 92 Hun, 1. See Vandervort v. Mink, 113 App, Div, 601,) Where an appellant has demanded a new trial in a case in which he was not entitled to such trial, he may move for an order transferring the cause to the law calendar, and that it be heard on the justice's return. {Doughty v. Picott, 105 App. Div. 339.) § 12. Proceeding in appellate court on appeal for new trial. When an appeal is taken from a judgment of a justice's court, and a new trial is demanded in the County Court, the judgment appealed from is no more effective between the parties and the case is heard in the County Court de novo. All proceedings in the suit thereafter are substantially the same as if the action had been originally commenced in the County Court. (Code Civil Pro., § 3071; Burns v. Hoivard, 9 Abb. N. C. 321; Crandell v. Bickerd, 32 Misc. 258, 66 N. Y. Supp, 352,) The jurisdic- tion of the appellate court for all the purposes of trial and judgment is APPEALS. 355 the same as if the action had heen commenced in that court originally. (Crannell v. Comstoch, 12 Hun, 293.) Th« case on appeal to the County Court should be tried upon the issues formed by the pleadings in the justice's court, and the parties should be allowed upon the retrial to introduce the same proof in the County Court under the pleadings that they would have been allowed to introduce upon the trial in the justice's court. If the defendant set up a counterclaim in his answer in the justice's court the plaintiff should be allowed to introduce in the appellate court proof of the payment of the claim set up as a counterclaim without being compelled to obtain leave to serve a supplemented pleading setting up such payment. (Utter v. Nelligan, 92 Hun, 185; White v. Gray's Sons, 96 App. Div. 154.) The plaintiff may be allowed to amend his complaint by changing the amount for which judgment was demanded to a sum in excess of the jurisdiction possessed by a justice of the peace (Jacog v. Wathins, 10 App. Div. 475, 42 N. Y. Supp. 6), and the defendant may be allowed to amend his answer by setting up a new and additional defense. (Paddock v. Barnett, 88 Hun, 381, 34 N. Y. Supp. 834.) The County Court has power to try the issues upon the merits, notwithstanding the fact that the case involves the trial of issues relating to a disputed question as to the title to real property. (Oould v. Patterson, 87 Hun, 533.) PART II. THE CODE OF CIVIL PROCEDURE AND FORMS. FroTisioiiB of tbe Code of Civil Procedare Applicable to a Justice's Covrt. CHAPTER XIX. CouBTS OF Justices of the: Peiace, aj^d Pboceedings Thebeon. TITLE I. — Jurisdiction and General Powers. TITLE II. — Commencement of Action; Appearance of Parties; ProTisional Remedies. TITLE III. — Pleadings; Including Counterclaims, and Proceedings upon Answer of Title. TITLE IV. — Proceedings Between the Joinder of Issue and the Trial. TITLE V. — Trial and its Incidents. TITLE VT. — Judgment; and Docketing the Same. TITLE VII. — Executions. TITLE VIII.— Appeals. TITLE IX.— Costs. TITLE X. — Action or Special Proceeding, Relating to an Animal Straying upon the Highway. TITLE XI. — Provisions Specially Relating to Courts of Justices of the Peace in the City of Brooklyn. TITLE XII. — Miscellaneous Provisions. TITLE I. JUBISDICnON AND GENERAL POWEES. Section 2861. Justice's jurisdiction must be specially conferred by law. 2862. General civil jurisdiction. 2863. No jurisdiction in certain cases. 2864. Confession of judgment. 2866. Actions by and against officers, etc. ; and by executors, etc. 2866. Tavern-keepers disqualified. 2867. Members of legislature not compelled to act. 2868. Justices to hold courts; general powers. 2869. In what town, etc., action must be brought. 2870. Criminal contempt. 2871. Id.; how punished. 2872. Offender to be heard. 2873. Record of conviction. 2874. Requisites of commitment. 2875. Fine to be paid to overseer or superintendent of the poor. 357 358 CODE OF CIVIL PKOCEDUKE. § 2681. Justice's jurisdiction must be specially conferred by law. A justice of the peace has such jurisdiction in civil actions and special proceedings, as is specially conferred upon him by statute, and no other. [See ante, p. 8.] § 2862. [Am'd, 1896, 1906.] General civil jurisdiction. Except as otherwise prescribed in the next section, a justice of the peace has juris- diction of the following civil actions: 1. An action to recover damages upon or for breach of a contract, express or implied, other than a promise to marry, where the sum claimed does not exceed two hundred dollars. 2. An action to recover damages for a personal injury, or an injury to property, where the sum claimed does not exceed two hundred dollars. 3. An action for a fine or penalty, not exceeding two hundred dollars. 4. An action upon a bond conditioned for the payment of money, where the sum claimed to be due does not exceed two hundred dollars; the judgment to be rendered for the sum actually due. Where the sum secured by the bond is to be paid in instal- ments, an action may be brought for each instalment, as it becomes due. 5. An action upon a surety bond, taken, by any justice of the peace. 6. [Am'd, 1906.] An action upon a judgment, either foreign or domestic rendered in any inferior court, not of record, where the sum claimed does not exceed two hundred dollars. An action upon a judgment, foreign or domestic rendered in a court of record, where the sum claimed does not exceed fifty dollars. 7. An action to recover one or more chattels, with or without damages for the taking, withholding, or detention thereof, where the value of the chattel, or of all the chattels, as stated in the affidavit made on the part of the plaintiff, does not exceed two hundred dollars. 8. An action to recover damages for an escape from the jail liberties, as provided by chapter two, title two, article four and five of this act, where the sum claimed does not exceed fifty dollars. [See ante, p. 15.] § 2863. [Am'd, 1882, 1895, 1909, 1917.] Wo jurisdiction in certain cases. But a justice of the peace cannot take cognizance of a civil action, in either of the following eases: 1. Where the people of the State are a party, except for one or more fines or penalties not exceeding two hundred dollars, or for premiums due the insurance fund under the workmen's compensation law not exceeding two hundred dollars. 2. Where the title to real property comes in question, as prescribed in title third of this chapter. 3. Where the action is to recover damages for an assault, battery, false imprisonment, libel, slander, criminal conversation, seduction, or malicious prosecution, or where it is brought under sections eighteen hundred and thirty-seven, nineteen hundred and two, or nineteen hundred and sixty-nine of this act, or sections twenty-eight or one hundred and one of the decedent estate law. 4. Where, in a matter of account, the sum total of the accounts of both parties proved to the satisfaction of the justice, exceeds four hundred dollars. 5. Where the action is brought against an executor or administrator as such, except where the amount of the claim is less than the sum of fifty dollars, and the claim ha9 been duly presented to the executor or administrator and rejected by him. [See ante, p. 16.] JURISDICTION". 359 § 2864. Confession of judgment. A justice of the peace has also jurisdiction to render judgment, upon the confession. of a defendant, as prescribed in title sixth of this chapter, where the sum confessed does not exceed five hundred dollars. [See ante, p. 22.] § 2865. [Am'd, 1882.] Actions by and against officers, etc.; and by ezecntors, etc. An action, cognizable by a justice of the peace, may be brought by or against a corporation; by or against a natural person in hia own right; by or against a town or county officer in his official character; or by an executor or administrator, trustee of an express trust, or a receiver in supplementary proceedings. [See ante, p. 23.] § 2866. Tavern-keepers disqualified. A justice of the peace who is an innholder or tavern-keeper in fact, has no power or jurisdiction under any provision of this chapter; but if a judgment has been actually rendered by him, before he became so disqualified, he may give a transcript thereof, or issue execution thereupon, or satisfy the judgment, upon payment thereof. [See ante, p. 12.] § 2867. Members of legislature not compelled to act. A justice of the peace, who is a member of the senate or assembly, is not obliged to take cognizance of a civil action or special proceeding; but he may take cognizance thereof, in his discretion. [See ante, p. 12.] § 2868. [Am'd, 1897, 1899, 1919.] Justices to bold court; general powers. A justice of the peace must hold, within his town or city, a court for the trial of any action or special proceeding, of which he has jurisdiction, brought before him, excepting that a justice who is a resident of an incorporated village located in two or more adjoining towns, may hold court for the trial of actions in any part of such incorporated village; but such a court shall not be held in a room in any part of which trafficking in liquors is authorized or in ariy adjoining room. He must hear, try and determine the same according to law and equity, and for that purpose, where special provision is not otherwise made by law, the court is vested with all the necessary powers possessed by the supreme court. [See ante, p. 5.] § 2869. [Am'd, 1893, 1895, 1903.] In what town, etc., action must be brought. An action must be brought before a justice of a town or city wherein one of the parties resides, or a justice of an adjoining town or city in the same county, except in one of the following cases: 1. Where the defendant has absconded from his residence, it may be brought before a justice of the town or city in which the defendant, or a portion of his property, is at the time of the commencement of the action. 2. [Am'd, 1895.] Where the plaintiff is not a resident of the county, or if there are two or more plaintiffs when all are non-residents thereof, it must be brought in the town where the defendant resides, or in any adjoining town thereto. 3. Where the defendant is a non-resident of the county, it may be brought before a justice of the town or city, in which he is at the time of the commencement of the action. 4. Where it is specially prescribed by law, that a particular action may be brought before a justice of the town, city, county, or district, where an offense was committed, or where property is found. 360 CODE OF CIVIL PKOCEDUEE. 5. [Am'd, 1893; am'd, 1898, 1903.] In any town adjoining an incorporated city, no justice of such town shall have jurisdiction of any action brought against a resident of such adjoining city, unless one of the parties plaintiff in such action is a resident of such town. A defendant designated in section 2879, section 2880, or section 2881 of this act, is deemed, for the purposes of this section, a resident of the town or city where the person, to whom a copy of the summons is delivered, resides. [See ante, p. 23.] § 2870. Criminal contempt. A justice of the peace has power to punish, for a criminal contempt, a person guilty of either of the following acts : 1. Disorderly, contemptuous, or insolent behavior towards him, while engaged in the trial of an action, the rendering of a judgment, or any other judicial proceeding; where such behavior directly tends to interrupt the proceedings, or to impair the respect due to his authority. 2. Breach of the peace, noise, or other disturbance, directly tending to interrupt his official proceedings. 3. Kesistance wilfully offered, in his presence, to the execution of his lawful mandate. He has not power to punish, for a, criminal contempt, in any other case. [See ante, p. 26.] § 2871. Id.; how punished. Punishment, for a contempt, specified in the last section, may be by fine not exceeding twenty-five dollars, or by imprisonment in the county jail not exceeding five days, or both, in the discretion of the justice. Where a person is committed to prison for tho non-payment of such a fine, he must be discharged at the expiration of ten days; but where he is also committed for a definite time, the ten days must be computed from tho expiration of the definite time. § 2872. Offender to be heard. A person shall not be punished by a justice of the peace, for a contempt, until an opportunity has been given him to be heard in his defence. And, for that purpose, the justice must issue a warrant, directed, generally, to any constable of the county, requiring the constable to bring the offender before him. § 2873. Kecord of conviction. A justice, who convicts a person of a contempt, must, within ten days after the conviction, make up, subscribe, and file in the county clerk's office, a record thereof, stating therein the particular circumstances of the offence, and the punishment awarded by him upon the conviction. § 2874. Requisites of commitment. A warrant of commitment for a contempt must set forth the particular circumstances of the offence; otherwise it is void. § 2875. Fine to be paid to overseer or superintendent of the poor. An officer, who collects or receives a fine, imposed by a justice of the peace for a contempt, must, within ten days thereafter, pay the money, for the benefit of the poor, to the overseer or superintendent of the poor of the town, city, or district, wherein the fine was imposed ; or, where there is no such officer, to the officer or officers performing corresponding functions under another name; unless the board of supervisors has directed the payment of fines and penalties to the supervisor of the town in a case where it is authorized by law so to do. COMMEJSrOEMENT OF ACTION. 361 TITLE II. COMMENCEMENT OF ACTION; APPEABANCE OF PASTIES; PROVISIONAL BEMEDIES. Abticle 1. Commencement of action. 2. Appearance of parties. S. Order of arrest. 4. Attachment of property. 5. Eeplevin. Abticle First, commencement of action. Section 2876. Action; how commenced. 2877. Contents of summons. 2878. Service of summons. 2879. Id.; upon a corporation. 2880. Id.; special provisions relating to railroad corporations. 2881. Id.; relating to express companies. 2882. Last two sections qualified. 288<3. Second and third summons; effect thereof. 2884. Where name of defendant is unknown. 2885. Keturn of summons. § 2876. Action; hew commenced. An action is commenced before a justice of the peace, either by the voluntary appearance and joinder of issue by the parties, or by the service of a summons. § 2877. [Am'd, 1904.] Contents of summons. The summons must be directed, generally, to any constable of the county where the justice resides; and it must command him to summon the defendant to appear before the justice, at a place specified therein, to answer the complaint of the plaintiff in a civil action. Where the summons is accompanied with an order to arrest the defendant, it must be made returnable immediately upon the arrest of the defendant, within twelve days after the day when it was issued; in every other case, it must be return- able at a time therein specified, not less than six nor more than twelve days after the day when it was issued. A summons shall not be made returnable on a legal holiday. [See ante, p. 286.] § 2878. Service of snmmons. Personal service of the summons must be made by delivering a copy thereof to the defendant; except where it is specially prescribed in this chapter that personal service may be made by delivering a copy to another person. Where service of a summons is personal, it must be made at least six days before the time of appearance specified therein ; except where it accompanied with an order of arrest. [See ante, p. 291.] § 2879. [Am'd, 1904.] Id.; upon a corporation. Where the defendant to be served is a corporation, or person, company or partnership doing business in another county than that in which he or it resides, the summons may 362 CODE OF CIVIL PKOCEDUKE. be personally served upon it or him by delivering a copy thereof to an officer, man- aging agent or person to whom a copy of the summons in an action brought against the corporation in the supreme court might be delivered as prescribed in sections lour hundred and thirty-one, and four hundred and thirty-two of this act, or, to any director, managing agent or trustee of the corporation, person, partnership or company by whatever official title he or it is called. [See ante, p. 291.] § 2880. [Am'd, 1900.] Id.; special provision relatine to railroad corpo- rations. Where the defendant to be served is a railroad corporation, and no officer thereof resides in the county, to whom a copy of the summons may be delivered, as prescribed in the last section, it may be personally served, by delivering a copy thereof to a local superintendent of repairs, freight agent, agent to sell tickets, or station keeper of the corporation, residing in the county; unless, at least thirty days before it was issued, the corporation had filed, in the office of the clerk of the county, a written instrument, designating a person residing in the county, upon whom process to be issued by a justice of the peace against it, may be served; in which case, the summons may be personally served by delivering a copy to the person so designated. [See ante, p. 291.] § 2881. [Am'd, 1895, 1905.] Id.; relating to express, insurance and tele- grapb companies. Where the defendant to be served is a corporation, association, partnership or person doing business in the state as an express company, an insurance company, or a telegraph company, and no person resides in the county to whom a copy of the summons may be delivered, as prescribed in the foregoing sections of this article, it may be personally served on the express company by delivering a copy thereof to any local or general agent to receive freight or, parcels, route agent, or messenger of the defendant, residing in the county, and on any insurance company by delivering a copy thereof to any local or general agent of the defendant, residing in the county, and on any telegraph company by delivering a copy thereof to any office manager of the defendant, residing in the county; unless at least thirty days before it was issued, the defendant had filed in the office of the clerk of the county, a written instrument, designating a person residing in the county, upon whom process to be issued by a justice of the peace against the defendant may be served; in which case the summons may be personally served by delivering a copy thereof to the person so designated. [See ante, p. 291.] § 2882. liast two sections qualified. Where a person has been designated, as prescribed in either of the last two sections, and the designation has been revoked, or it appears, by affidavit or the return of the constable, to whom a summons has been duly delivered for service, that the person designated is dead, or has ceased to reside within the county; or that he cannot, after due diligence, be found within the county, so as to deliver a copy of the summons to him; the original summons, or the second or third summons, issued as prescribed in the nent section, may be served as if the designation had not been made. Such a desitv- nation may be revoked by a writing, executed and filed in like manner aa required for the purpose of making the designation. § 2883. Second and third summons; effect thereof. Where it appears, by the return of the constable, to whom a summons has been duly delivered for service, that it was not served, for any cause, a second summons COMMENCEMENT OF ACTION. 363 may be issued by the same justice, in the same action, within twenty days after the first summons was issued; and, upon the like return thereof, a third summons may be issued, within twenty days after the second was issued. The second or the third summons, as the case may be, relates back to the time when the first summons was issued; and with respect to all the proceedings before actual service, the service thereof has the same effect, as if the first summons had been seasonably served. For the purpose of issuing a new summons, as prescribed in this section, a previous summons may be returned upon the sixth, or any subsequent day, before the return day thereof. § 2884. Wbere name of defendant is unknown. Where the plaintiff is ignorant of the name, or part of the name of a defendant, that defendant may be designated in the summons, and in any other process or proceeding in the action, by a fictitious name, or by so much of his name as is known, adding a description, identifying the person intended. The person so designated must thereupoi^ be regarded as a defendant in the action, and as sufficiently described therein for all purposes. When his name, or the remainder of his name, becomes known, the justice, before whom the action is pending, must amend the proceedings already taken, by the insertion of the true or full name, in place of the fictitious name, or part of a name; and all subsequent proceedings must be taken under the name so inserted. § 2885. Return of summons. A constable, who serves a summons, must, at or before the time when the same is returnable, make and deliver to the justice a written return thereof, under his hand, stating the time when, and the manner in which, he served it. A constable who fails seasonably to serve a summons, delivered to him for service, must make a written return thereof under his hand, stating that it was not served, and the reason why he failed to serve it. [See ante, p. 292.] 364 CODE OF OIVIL PEOOEDUEE. Abucle Second. appearance op pasties. Section 2886. Parties may appear in person or by attorney. 2887. Guardian ad litem for infant plaintiff. Id.; for infant defendant. When constable, etc., may not act as attorney. 2890. Authority of attorney; how proved. 2891. Plaintiff to prove his case, except where a verified complaint is served. 2892. Defendant may offer to compromise; proceedings thereupon. 2803. Justice to wait one hour. § 2886. Parties may appear in peTson or by attorney. A party to an action before a justice of the peace, who is of full age, may appear and prosecute or defend the same, in person or by attorney, at his election, unless he has been judicially declared to be incompetent to manage his affairs. § 2887. Guardian ad litem for infant plaintiiF. Before a, summons is issued in behalf of, or an issue is joined witho summons by, an infant plaintiff, the justice must appoint a competent and responsible person, nom- inated by the plaintiff or his general guardian, to appear as his guardian for the purpose of the action. The written consent of the person so appointed must be filed with the justice, before his appointment. The guardian so appointed is responsibly for the costs. [See ante, p. 285.] § 2888. Id.; for infant defendant. After the service and return of a summons against an infant defendant, no other proceeding shall be taken in the action until a person has been appointed to appear as his guardian for the purpose of the action. Upon the nomination of the defendant, the justice must appoint a proper person for that purpose. If the defendant does not appear upon the return of the summons, or if he neglects or refuses to nominate, the justice may, on the application of the plaintiff, appoint any proper person as his guardian. The written consent of the person, so appointed, must be filed with the justice before his appointment. The guardian so appointed is not responsible for any costs. [See ante, p. 285.] § 2889. [Am'd, 1909.] When constable or law partner or olerk of justice may not act as attorney. Subject to the provisions of sections two hundred and seventy-one and two hundred and seventy-two of the penal law, any person, other than the constable who served the summons or the venire, or the law partner or clerk of the justice, may be the attorney for a party in an action before a. justice of the peace. § 2890. Authority of attorney; how proved. The attorney's authority may be conferred orally or in writing; but the justice shall not suffer a person to appear as an attorney, unless his authority is admitted by the adverse party, or proved by the affidavit or oral testimony of himself, or another. APPEAKAl^OE OF PARTIES. 365 § 2891. [Am'd, 1906.] Plaintiff to prove his case, except where a verified complaint is served. If a defendant fails to appear and answer, the plaintiff cannot recover without proving his case, except in an action which has been commenced by the service of a summons and verified complaint as provided by section twenty-nine hundred and thirty- six of this code; in such action, in case the defendant fails to answer said complaint, as provided by section twenty-nine hundred and thirty-eight of this code, at the time of the return of said summons he shall be deemed to have admitted the allegations ot the complaint as true, and the court shall, upon filing the summons and complaint, with due proof of service thereof, enter judgment for the plaintiff and against the defendant, for the amount demanded in such complaint, with costs, without further proof. § 2892. Defendant may offer to compromise; proceedings thereupon. Except in an action to recover a chattel, the defendant may, upon the return of the summons and before answering, file with the justice a written offer to allow judgment to be taken against him for a sum therein specified, with costs. If there are two or more defendants, and the action can be severed, a like offer may be made by one or more of the defendants against whom a separate judgment may be taken. If the plaintiff thereupon, before taking any other proceeding in the action, files with the justice a written acceptance of the offer, the justice must render judgment accordingly. If an acceptance is not filed, the offer cannot be given in evidence upon the trial; but, if the plaintiff fails to obtain a, more favorable judgment, he cannot recover costs from the time of the offer, and must pay the defendant's costs from that time. [See ante, p. 296.] § 2893. Jastioe to wait one hour. Upon the return of a summons duly served, the justice must wait one hour, after the time specified therein for its return, unless the parties sooner appear. 366 CODE OE CIVIL PKOCEDUEE. Abticle Thibd. obdeb of abbest. Section 2894. Order of arrest; in what cases it may be granted. 2895. Id.; in what actions. 2896. Id. ; upon what papers. 2897. Id.; its contents. 2808. Duty of constable. 2899. Eeturn. When plaintiff notified must appear. 2900. Constable to keep defendant in custody. 2901. Motion to discharge from arrest. 2902. Effect of discharging defendant. 2903. When plaintiff must prove extrinsic facts. 2904. Privilege from arrest. § 2894. Order of arrest; in \phat cases it may be granted. At the time when the summons is issued, in an action specified in the next section, the justice who issues the summons must, upon the application of the plaintiff, and upon compliance by him with the provisions of this article, grant an order for the arrest of the defendant, in either of the following cases : 1. Where the defendant to be arrested is not a resident of the county. 2. Where the plaintiff is not a resident of the county; or, if there are two or more plaintiffs, where all are non-residents thereof. 3. Where it appears to the satisfaction of the justice by the affidavit of the plaintiff or another person, that the defendant is about to depart from the county, with intent not to return thereto. But such an order cannot be granted, where the defendant, against whom it is applied for, is a female. § 2895. Id.; in what action. An order of arrest shall not be granted, except where the action is brought for one or more of the following causes: 1. To recover a fine or penalty. Z. To recover damages for a personal injury, of which a justice of the peace has jurisdiction; an injury to property, including the wrongful taking, detention, or conversion of personal property; misconduct or neglect in office, or in a professional employment; fraud; or deceit. But this subdivision does not apply to a claim for damages in an action to recover a chattel. 3. To recover for money received, or to recover a chattel; where it appears that the money was received, or that the chattel was embezzled or fraudulently misapplied, by a public officer, or by an attorney, solicitor, or counsellor, or by an officer or agent of a corporation or banking association, in the course of his employment; or by a factor, agent, broker, or other person in a fiduciary capacity. [See ante, p. 286.] § 2896. Id.; npon what papers. Where it appears to the justice, by the affidavit of the plaintiff or another person, that a sufficient cause of action exists, against the defendant, and that the case is within the provisions of the last two sections, he must grant the order of arrest. OEDEK OF AEEEST. 367 But before granting it, he must require a written undertaking to the defendant, on the part of the plaintiff, with one or more sureties, approved by the justice, to the effect that, if the defendant recovers judgment, the plaintiff will pay all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the imdertaking which must be at least one hundred dollars. [Id.] § 2S97. Id.; its contents. The order must be subscribed by the justice and indorsed upon or attached to the summons. It must briefly recite the ground of arrest; and it must direct the constable, who serves the summons, to arrest the defendant; to bring him forthwith before the justice; and to notify the plaintiff of the arrest, if he can do so with reasonable diligence. § 2898. Duty of constable. The constable must, at the time of serving the summons, execute the order of arrest, by arresting the defendant, and taking him forthwith before the justice. If the justice is absent, or unable to try the action, the constable must forthwith take the defendant before another justice of the same town or city; who must take cognizance of the action, and proceed therein, as if the summons had been issued, and the order of arrest had been granted by him. [See ante, p. 292.] § 2899. Return. When plaintiff notified must appear. The constable, executing the order of arrest, must forthwith deliver to the justice the order, and a written return thereto, under his hand, stating the manner in which he has executed it, and either that he has notified the plaintiff, or that he could not do so, with reasonable diligence. If he returns that he has notified the plaintiff, the latter must appear within one hour after the defendant is brought before the justice; otherwise judgment of nonsuit must be rendered against him. [See ante, p. 292.] § 2900. ConstaUes to keep defendant in oastody. The constable executing the order, or another constable, by direction of the justice, must keep the defendant in custody, until he is discharged by the order of the justice, or judgment is rendered in his favor; but the detention shall not, in any case, exceed twelve hours from the time when the defendant is brought before the justice; unless, within that time, a venire is issued, or the trial of the action is commenced, or unless either is delayed with the express assent of the defendant. § 2901. Motion to discbarge from arrest. A defendant arrested as prescribed in this article, may, without notice, upon the appearance of the plaintiff before the justice, or at any time afterwards before judgment, upon two days' notice given personally to the plaintiff, or to his agent or attorney who appeared for him before the justice, apply to the justice for an order, discharging him from the arrest. The application may be founded upon the papers upon which the order of arrest was granted, and upon the complaint, if it has been made. The justice must grant the application, where it appears that the case is not within the provisions of sections 2894 and 2895 of this act. The justice must also, upon the defendant's application, grant an order discharging him from arrest, if the plaintiff fails to take out from the justice, an execution upon a judgment in his favor, before the expiration of one hour after he is entitled thereto. [Id.] 368 CODE OF CIVIL PEOCEDUEE. § 2902. Effect of discharging defendant. The discharge of the defendant from arrest, before judgment as prescribed in the last section, or in section 2963 of this act, does not affect the jurisdiction of the justice over the action, which must proceed, as if it had been commenced in the ordinary manner. His discharge from arrest, aft«r judgment, as prescribed in the last section, does not affect the execution. [Id.] § 2903. When plaintiff mnst prove extrinsic facts. Where an order of arrest has been granted and executed, in a case specified in sub- division third of section 2895 of this act, the plaintiff cannot recover upon the default, and the defendant is entitled to judgment upon a trial, unless the plaintiflF establishes all the matters of fact, which are required, by that subdivision to entitle him to an order of arrest. § 2904. Privilege from arrest. This article does not abridge or otherwise affect a privilege from arrest given by law, or a right of action for the breach thereof. A privileged person is entitled to be discharged from arrest, by the order of the justice before whom he is brought, upon proof, by affidavit, of the facts entitling him to a discharge; or he may apply for and obtain an order for his discharge, as prescribed in section 564 of thia act. ATTACHMENT OF PKOPEETY. 369 Aeticle Foubth. ATTACHMENT OP PBOPEETT. Section 2905. In what actions, warrant of attachment may be granted. 2906. What must be shown to procure a warrant. 2907. Warrant; form and contents thereof. 2908. Undertaking. 2909. Warrant; how executed. 2910. Service of summons and warrant upon defendant. 2911. Undertaking by defendant; re-delivery to him. 2912. Claim by third person; bond and delivery thereupon. 2913. Action upon bond. 2914. When defendant may prosecute bond. 2915. Return of warrant. 2916. Motion to vacate or modify warrant, etc. 2917. Effect of vacating warrant. 2918. Proceedings where summons not personally served. § 2905. In irhat actions, warrant of attachment may he granted. In an action brought before a justice of the peace a warrant of attachment against the property of one or more defendants must be granted, upon the application of the plaintiff, as prescribed in this article, where the action is brought upon a judgment, or to recover for one or more of the following causes: 1. Breach of a contract, express or implied. 2. Wrongful conversion of personal property. 3. Any other injury to personal property, in consequence of negligence, fraud, or other misconduct. [See ante, p. 287.] § 2906. What mnst be shoirn to procure a x^arrant. To entitle the plaintiff to such a warrant, he must show, by affidavit, to the satis- faction of the justice as follows: 1. That a sufficient cause of action exists against the defendant, to recover damages for one or more of the causes specified in the last section. If the action is upon a judgment, or to recover for breach of a, contract, the affidavit must show that the plaintiff is entitled to recover a sum stated therein, over and above all counterclaims known to him. 2. That the defendant is either a foreign corporation; or not a resident of the State; or, if the defendant is a natural person, and a resident of the State, that he has departed, or is about to depart, from the county where he last resided, with intent to defraud his creditors, or to avoid the service of a summons; or keeps himself concealed, with the like intent; or, if the defendant is a natural person, or a domestic corporation, that he or it has removed, or is about to remove, property from the county where the defendant, being a natural person, last resided, or, being a corporation, last kept its principal office, or from the county in which the action is brought, with intent to defraud his or its creditors; or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, property, with the like intent; or that the defendant, being a natural person of full age, and a resident of the State, has been continuously 24 370 CODE OF CIVIL PKOCEDUEE. without the United States for the space of six months or more, immediately before the application, and either that he has not made a designation of a person, upon whom to serve a summons in his behalf, as prescribed in section 430 of this act, or that service upon the person so designated cannot be made, with due diligence, in the county where the person making the designation resides. The affidavit must be filed with the justice, when the warrant is granted. [Id.] § 2907. IVaTraiit; form and contents thereof. The warrant must be granted by the justice who issues the summons, at the time when the summons is issued; and it must be indorsed thereupon, or annexed thereto. It must be subscribed by the justice, and must briefly recite the ground of the attach- ment. It must require the constable, to whom the summons is delivered, to attach, on or before a day specified therein, which must be at least six days before the return day of the summons, and safely to keep, as much of the defendant's goods and chattels, within his county, as will satisfy the plaintiff's demand, with the costs and expenses, and to make return of his proceedings thereon to the. justice, at the time when the summons is returnable. The amount of the plaintiff's demand must be specified in the warrant, as stated in the affidavit. [Id.] § 2908. Undertaking. Before granting the warrant, the justice must require a written undertaking to the defendant, on the part of the plaintiff, with one or more sureties, approved by the justice, to the effect that, if the defendant recovers judgment, or the warrant of attach- ment is vacated, the plaintiff will pay all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking, which must be at least two hundred dollars; and that if the plaintiff recovers judgment, he will pay to the defendant all money received by him from property taken by virtue of the warrant of attachment, or upon any bond given therefor, over and above the amount of the judgment, and interest thereupon. § 2909. [Am'd, 1903.] Warrant; how executed; pesishable property may be sold. The constable to whom the warrant of attachment is delivered, must execute it at least six days before the return day of the summons, by levying upon and taking into his custody so much of the goods and chattels of the defendant, not exempt from levy and sale by virtue of an execution, including money and bank notes, which he finds within his county, as will satisfy the plaintiff's demand, with the costs and expenses. He must safely keep the property attached, to be disposed of as prescribed in this article, and must immediately make an inventory thereof, stating therein the estimated value of each item or article. Provided, however, if property attached is perishable, the justice who issued the warrant may, by an order made and entered upon his docket, and with or without notice, as the urgency of the case in his opinion requires, direct the constable to sell such property at public auction, and thereupon the constable must sell it accordingly. A certified copy of the order directing the sale shall be delivered to such constable. Such order must prescribe the time and place of the sale, and notice thereof must be given in such manner and for such time as directed by the order. The of the action. § 2910. Service of summons and warrant upon defendant. The constable must, immediately after making the inventory, and at least six days before the return day of the summons, serve the summons, together with the warrant ATTACHMENT OF PKOPEETY. 3Y1 of attachment and inventory, upon the defendant, hy delivering to him personally a copy of each, if he can, with reasonable diligence, be found within the county; or, if he cannot be so found, by leaving a copy of each, certified by the constable, at the last place of residence of the defendant in the county, with a person of suitable age and discretion ; or, if such a person cannot be found there, by posting it on the outer door, and also depositing another copy in the nearest post-office, inclosed in a sealed post- paid wrapper, directed to the defendant at his residence; or, if the defendant has no place of residence in the county, by delivering it to the person in whose possession the property attached is found. § 2911. Trndertaking by defendant; Te-dellvery to him. The defendant, or his attorney or agent in his behalf may, at any time before judgment is rendered in the action, execute and deliver to the constable an undertaking to the plaintiff, in a sum specified therein, at least twice the value of the property attached, as stated in the inventory; with one or more sureties, approved by the constable, or 'by the justice who issued the warrant; and to the effect that, if judgment is rendered against the defendant, and an execution is issued thereupon, within six months after the giving of the undertaking, the property attached shall be produced to satisfy the execution. Thereupon the constable must re-deliver the property to the defendant. § 2912. Claim by tUrd person; bond and delivery tberenpon. If a person, not a party to the action, claims any property attached, which is not reclaimed by the defendant, as prescribed in the last section, he may, at any time after the seizure, and before execution is issued upon a judgment rendered in the action, execute, and file with the justice, a bond to the plaintiff, with one or more sureties, approved by the constable or by the justice; in a penalty at least twice the value of the property claimed; and conditioned that, in an action upon the bond, to be com- menced within three months thereafter, the claimant will establish that he was the general owner of the property claimed, at the time of the seizure; or, if he fails so to do, that he will pay to the plaintiff the value thereof, with interest. The constable must thereupon deliver the property claimed to the claimant. § 2913. Action npon bond. A judgment for the plaintiff, in an action upon a bond given as prescribed in the last section, must award to him the value of the property seized and delivered to the claimant, with interest thereupon from the time of the delivery. If he amount so recovered exceeds the amount, which the plaintiff recovers, in the action in which the warrant of attachment was issued, he is liable to the defendant in that action for the excess. § 2914. When defendant may prosecute bond. If the warrant of attachment is vacated or annulled, the defendant may maintain an action, upon the bond specified in the last two sections, in his own name, in the same manner and with the like effect, as the plaintiff might have done, if the warrant had remained in full force. § 2915. Return of warrant. The constable executing the warrant of attachment must, at the time when and place where it is returnable, make a return thereto, under his hand, stating all his proceed- ings thereupon. He must deliver to the justice, with the return, each bond or under- taking delivered to him, pursuant to any of the foregoing provisions of this article, and a certified copy of the inventory of the property attached. The return must state 372 CODE OF CIVIL PKOCEDUEE. the manner in which the warrant and inventory were served, and, if they were served otherwise than by delivering a copy thereof to the defendant personally, the reason therefor, and the name of the person to whom the copy was delivered, unless his name is unknown to the constable; in which case, the return must describe him so as to identify him, as nearly as may be. § 2916. Motion to vacate or modify warrant, etc. A defendant whose property has been attached, may, upon the return of the summons, apply to the justice, who issued the warrant of attachment, to vacate or modify it, or to increase the plaintiff's security. Such an application may be founded upon the papers upon which the warrant was granted; or upon proof, by affidavit, on the part of the defendant; or upon both. If it is founded upon proof on the part of the defendant, it may be opposed by new proof, by affidavit, upon the part of the plaintiff, tending to sustain any ground for the attachment, recited in the warrant, but no other. The justice may, upon the return of the summons, or at any other time to which the action is adjourned, vacate the warrant of attachment upon his own motion, if he deems the papers, upon which it was granted, insufficient to authorize it. [See ante, p. 294.] § 2017. EfFect of vacating warrant. Vacating the warrant of attachment does not affect the jurisdiction of the justice to hear and determine the action, where the defendant has appeared generally in the action ; or where the summons was personally served upon him ; or where judgment may be taken against him, as being indebted jointly with another defendant, who has been thus summoned, or has thus appeared. In every other case, the justice, who vacates a warrant of attachment against the property of a defendant, must dismiss the action as to him. § 2918. Proceedings nrhere summons not personally served. Where the defendant has not appeared, and the summons has not been personally served upon him, and property of the defendant has been duly attached by virtue of a warrant, which has not been vacated, the justice must proceed to hear and determine the action; but, in an action subsequently brought, the judgment is only presumptive evidence of indebtedness, and the defendant is not barred from any counterclaim against the plaintiff. The execution, issued upon a judgment so rendered, must require the constable to satisfy it out of the property so att«ehed, without containing a direction to satisfy it out of any other property. [See ante, p. 294.] EEPLEVIN. 373 Akticle Fifth, eeplevin. Section 2919. When action for a chattel may be brought. 2920. Plaintiff may procure replevin; affidavit and undertaking. 2921. Requisition. 2i922. Id.; how executed. Service of summons, etc. 2923. Return of constable. 2924. Defendant may except to sureties; proceedings thereon 2925. Defendant may reclaim chattel; proceedings thereon. 2926. Justification of sureties. 2927. When and to whom constable must deliver chattel. 2928. Penalty for wrong delivery by constable. 2929. Claim of title by third person. 2930. Defendant may demand judgment for return. 2931. Proceedings in the action; action upon undertaking. 21932. Proceedings when summons not personally served. 2933. When action not affected by failure to replevy. g 2919. 'When action for a chattel may be bronglit. An action to recover a chattel, with or without damages for the wrongful taking, withhholding, or detention thereof, can be brought before a justice of the peace of the county in which the chattel is found, in a case, and subject to the qualifications, specified in sections 1689, 1690, 1691, and 1692, and subdivision seventh of section 2862 of this act. § 2920. Plaintiff may proenre replevin; affidavit and undertaking. The plaintiff may, at the same time when the summons is issued, but not after- wards, require the chattel to be replevied, as prescribed in this article. For that pur- pose, he must deliver to the justice an afSdavit and an undertaking, similar, in all respects, to the affidavit and undertaking required to be delivered to a sheriff, as prescribed in sections 1695, 1697, 1699, and 1712 of this act; except that the sections in the undertaking must be approved by the justice. [See ante, p. 289.] § 2921. Requisition. Upon receiving the aflSdavit and undertaking, the justice must indorse upon or attach to the affidavit a written requisition, subscribed by him, requiring the con- stable, to whom the summons is delivered, to replevy the property described in the affidavit, on or before a day specified in the requisition, which must be at least six days before the return day of the summons. The affidavit and requisition must be delivered to the constable, with the summons. [See ante, p. 289.] § 2922. Id.; how executed. Service of summons, etc. The constable must execute the requisition, as a sheriff is required to execute a requisition, in an action brought to recover a chattel, as prescribed in sections 1700, 1701, and 1708 of this act; except that he must serve the summons, affidavit, and 374 CODE OF CIVIL PEOCEDUKE. requisition within the time and in the manner prescribed, by section 2910 of this act, for the service of a summons, warrant of attachment, and inventory. [See ante, p. 292.] § 2923. Beturn of constable. The constable must, on or before the return day of the summons, make a return to the requisition, under his hand, stating all his proceedings thereupon; and file it, with the affidavit and requisition, with the justice. The return must state the manner in which the summons, affidavit, and requisition were served; and, if they were served otherwise than by delivering the requisite copies to the defendant per- sonally, the reason therefor, and the name of the person to whom the copies were delivered, unless his name is unknown to the constable; in which case, the return must describe him so as to identify him, as nearly as may be. § 2924. Defendant may except to sureties; proceedings thereon. At any time after the chattel has been replevied, and at least two days before the return day of the summons, the defendant, unless he requires a return of the chattel, may serve upon the plaintiff, or upon the constable, a, written notice that he excepts to the plaintiff's sureties; otherwise he is deemed to have waived all objections to them. If such a, notice is served, the sureties must justify upon the return of the summons; or the plaintiff must then give a new undertaking, to the same effect as the original undertaking, with other sureties, who must then appear and justify before the justice. [See ante, p. 294.] § 2925. Defendant may reclaim chattel; proceedings thereon. At any time before the return day of the summons, the defendant may, if he doea not except to the plaintiff's sureties, serve upon the justice a notice that he requires the return of the chattel replevied. With the notice he must deliver to the justice an aflidavit and undertaking, similar, in all respects, to those required to be given by a defendant upon requiring a return of a chattel, as prescribed in sections 1704 and 1712 of this act, omitting the provision in the undertaking, "or if the action abate in consequence of the defendant's death." The sureties in the undertaking must justify before the justice upon the return of the summons. If the plaintiff has stated separately in his affidavit the value of one or more chattels or classes of chattels, as prescribed in section 1697 of this act, the defendant may require a delivery of part of the property replevied, as prescribed in that section. [Id.] § 2926. Justification of sureties. Except as otherwise expressly prescribed in this article, the examination and qualifications of the sureties, and the allowance of the undertaking, upon a justifica- tion pursuant to either of the last two sections, must be the same as upon a justifica- tion of bail, as prescribed in section 579, 580, and 681 of this act, substituting the justice for the judge; but after such allowance, the undertaking must be filed with the justice. The constable is thereupon exonerated from liability. [See ante, p. 295.] § 2927. When and to whom constable must deliver chattel. If the defendant neither excepts to the plaintiff's sureties nor requires the return of a chattel, within the time prescribed for that purpose; or if he fails to procure the allowance of his undertaking; or if the plaintiff, after the defendant has excepted to bis sureties, duly procures the allowance of his undertaking, the constable must. KEPLEVIN. 375 except in the case specified in the next section but one, immediately deliver the chattel to the plaintiff. If the plaintiff, after the defendant has excepted to his sureties, fails to procure the allowance of his undertaking; or if the defendant, after he has required the return of the chattel, procures the allowance of his undertaking, the con- stable must immediately deliver the chattel to the defendant. § 2928. Penalty for -wrong delivery by constable. A constable who delivers to either party, without the consent of the other, a chattel erplevied by him, except as prescribed in the last section, or, by virtue of an execu- tion issued upon a judgment in the action, forfeits to the party aggrieved the sum of one hundred dollars, and is also liable to him for all damages which he sustains thereby. § 2929. Claim of title by third person. The provisions, regulating the proceedings, where a person, not a party, claims property which has been replevied, and the rights of such a person, and of the sheriff, as prescribed in sections 1709, 1710, 1711, and 1712 of this act, apply to a like case in an action, brought as prescribed in this article, substituting the constable for the sheriff; except that service of a notice and of a copy of the claimant's affidavit, upon the plaintiff's attorney, as prescribed in section 1709, must be made, either upon the plaintiff personally, or upon the attorney who appears for him before the justice; and that the sum specified in the undertaking, given by the plaintiff to the constable, need not exceed, in any case, three hundred dollars. § 2930. Defendant may demand judgment for return. Where a chattel has been replevied, and the defendant has not required the return thereof, pending the action, as prescribed in the foregoing sections of this article, he may in his answer, demand judgment for the return thereof, either with or without damages for the taking, withholding, or detention. § 2931. Proceedings in the action; action upon undertaking. Section 1373. section 1731, excluding subdivision first thereof, and sections 1722, 1726, 1730, 1732, 1733, 1734, and 1735 of this act, substituting the constable for the sheriff, apply to the proceedings in an action in a justice's court to recover a chattel, and to an action against the sureties in an undertaking given therein, except as otherwise specially prescribed in this chapter. § 2932. Proceedings when summons not personally served. Where the defendant does not appear, and the summons has not been personally served upon him, and a chattel, or part of a chattel, to recover which the action is brought, has been replevied; and the proceedings have been duly taken, as prescribed in this article; the justice must proceed to hear and determine the action, with respect to that chattel or part of a chattel; or, if the action is brought to recover two or more chattels, with respect to those which have been replevied.; in like manner and with like effect as if the summons had been personally served. § 2933. When action not affected by failure to replevy. Where the summons has been personally served upon the defendant, or where he appears, the justice must proceed to hear and determine the action, although the platintiff has not required the chattel to be replevied, or the constable has not been able to replevy it. 376 CODE OF CIVIL PROCEDUKE. TITLE III. PLEADINGS ; INCLITDING COtTNTEBCLAIM, AND PEOCKEDINGS UPON ANSWEE OP TITM. Section 2934. When issue to be joined. 2935. Pleadings. 2936. Complaint. 2937. What causes of action may be joined. 2938 Answer. 2939. Demurrer. 2940. General rules of pleading. 2941. Account, or instrument for payment of money. 29412. Court may require items to be exhibited. 2943. Immaterial variance to be disregarded. 2944. Amendment of pleadings. 2945. Counterclaims, 2946. Id.; where executor or trustee is a party. 2947. Consequence of neglect to plead counterclaim. 2948. The last section qualified. 2949. Judgment upon counterclaim. 2950. Judgment when accounts exceed $400. 2951. Answer to title. 2952. Undertaking thereupon. 2953. In what court new action to be brought. 2954. When action before justice to be discontinued. 2965. Effect of failure to give undertaking. 2956. When title comes in question on plaintiff's own showing. 2957. Pleadings in new action. Undertaking before justice, when applicable. Answer to title as to one of several causes of action. § 2934. [Am'd, 1893.] 'When issue to be joined. At the place, and within one hour after the time, specified in the summons for the return thereof; or, where an order of arrest is granted and executed, within twelve hours after the defendant is brought before the justice; or, where no summons is issued, at the time when the parties voluntarily appear to join issue, the pleadings of the parties must be made, and issue must be joined. Where both parties appear upon the return of the summons, an issue must be joined before an adjournment is had, except when the defendant refuses or neglects to plead. Where an issue of fact or an issue of law is joined in a justice's court, or before a justice of the peace in the city of Brooklyn, or in any of the towns in the county of Kings, in which the judgment demanded by either party in his pleadings exceeds the sum of one hundred dollars; or, when in an action to recover a chattel or chattels, the value of which as fixed by either party in his pleadings or afiidavits exceeds one hundred dollars, the defendant may, after issue joined and before an adjournment is granted upon his application, apply to the justice before whom the action is brought for an order remov- ing the action into the county court of the county of Kings. Such an order must be granted upon the defendant filing with the justice an undertaking in a sum fixed by the justice, not exceeding twice the amount of the damages claimed or twice the value of the chattel or of all the chattels claimed, as stated in the pleading or affidavits. PLEADINGS. 377 with one or more sureties, approved by the justice, to the effect that the defendant will pay to the plaintiff the amount of any judgment, including costs, that may be re- covered against him in the county court in the action so removed. From the time of the granting of the order the county court of Kings county has cognizance of the action, and the same shall be tried and determined in said county court as if originally brought therein. The justice must forthwith deliver to the clerk of the county court all processes, pleadings and other papers in the action which must be filed, entered and recorded, as the case requires, in the latter office. Costs in an action so removed shall be the same as in an original action commenced in said county court. § 2935. Pleadings. The pleadings in a justice's court are: 1. The plaintiff's complaint. 2. The defendant's answer. 3. The defendant's demurrer to the complaint, or to one or more distinct causes of action, separately stated therein. 4. The plaintiff's demurrer to one or more counterclaims stated in the answer. [See ante, p. 296.] § 2936. [Am'd, 1906.] Complaint. The complaint must state, in a plain and direct manner, the facts constituting the cause of action. In an action arising on contract for the recovery of money only, or on an account, the plaintiff or his agent, at or before the time of the issuing of the summons, may make a written complaint as above provided, specifying the amount actually due the plaintiff from the defendant, and praying judgment for the amount so due, which said complaint shall be signed by the plaintiff or his agent and verified in the manner and aS provided by section five hundred and twenty-six of this code. Said summons and complaint shall be attached and shall be served upon the defendant by delivering to and leaving with him, personally, true copies thereof, not less than six nor more than twelve days before the return day of said summons; and the official certificate of the constable making such service shall be sufficient evidence thereof. [Id.] § 2937. What canses of action may be joined. The plaintiff may unite, in the same complaint, two or more causes of action, where they all arise out of: 1. The same transaction, or transactions connected with the same subject of action; or 2. Contract, express or implied; or 3. Personal injuries, and injuries to property, or either. But it must appear, upon the face of the complaint, that all the causes of action so united belonged to one of the foregoing subdivisions of this section; that they are consistent with each other; that they require the same judgment; and, except as otherwise prescribed by law, that they affect all the parties. Where a cause of action, for which a defendant might be arrested, is united with a cause of action, for which he cannot be arrested, an execution against the person of the defendant cannot be issued upon the judgment. § 2938. [Am'd, 1906.] Answer. The answer may contain a general denial of each allegation of the complaint, or a specific denial of one or more of the material allegations thereof. It may also set forth, in a plain and direct manner, new matter, constituting one or more defences or counterclaims. In case the defendant appears and answers in an action in which 378 CODE OF CIVIL PKOCEDUEE. a verified complaint has been served, his answer shall be in vi^riting and shall be verified as above provided for the verification of the complaint. [See ante, p. 297.] § 2939. Demnrrer. In a case specified in subdivision third or fourth of section 2935 of this act, a party may demur to the pleading of the adverse party, or, if it is a complaint, to one or more distinct and separate causes of action, where it is not sufiiciently explicit to be understood; or where it does not state facts suflicient to constitute a cause of action, or counterclaim, as the case may be. If the court deems the demurrer well founded, it must permit the pleading to be amended; and if the party fails so to amend, the defective pleading, or part of a pleading demurred to, must be disregarded. If the court deems the demurrer not well founded, it must permit the party maKIng it to plead over, at his election. [Id.] § 2940. General rules of pleading. A pleading, except as otherwise prescribed in section 2951 of this act, may be oral or written. If it is oral, the substance thereof must be entered by the justice in his docket-book; if it is written, it must be filed with him, and a reference to it made in his docket-book. A pleading is not required to be in any particular form; but it must be so expressed, as to enable a person of common understanding to know what is intended. [Id.] § 2941. Account, or instrument for payment of money. For the purpose of setting forth » cause of action, defence, or counterclaim, founded upon an account or upon an instrument for the payment of money only, it is suffi- cient for the party to deliver the instrument, or a copy of the account to the court, and to state that there is due to him thereupon, from the adverse party, a specified sum, which he claims to recover or to set off. § 2942. Court may require items to be exhibited. The court may, upon the request of either party, made when issue is joined, require the adverse party to exhibit his account or demand, or to state the nature thereof, so far as it is in his power so to do, at that or another specified time; and in case of his default, it may preclude him from giving evidence of such parts thereof, as have not been so exhibited or stated. § 2943. Immaterial variance to be disregarded. A variance, between an allegation in a pleading and the proof, must be disregarded as immaterial, unless the court is satisfied that the adverse party has been misled thereby, to his prejudice. § 2944. Amendment of pleadings. The court must upon application, allow a pleading to be amended, at any time before the trial, or during the trial, or upon appeal, if substantial justice will be promoted thereby. Where a party amends his pleading after joinder of issue or pleads over upon the decision of a demurrer, and it is made to appear to the satisfaction of the court, by oath, that an adjournment is necessary to the adverse party, in consequence of the amendment or pleading over, an adjournment must be granted. The court may also, in its discretion, require, as a condition of allowing an amendment, the payment of costs to the adverse party. PLEADINGS. 379 § 2945. Connterolaims. Sections 501 and 502 of this act apply to a counterclaim in an action brought in a justice's court; except that such a counterclaim cannot be interposed, unless it is of such a nature, that a justice's court has jurisdiction of a cause of action founded thereon. [See ante, p. 298.] § 2946. Id.; -where ezeontoT or trustee is a party. Sections 505 and 506 of this act apply to a counterclaim in an action against a person sued in a representative capacity, or in favor of an executor or administrator, except that the defendant cannot take judgment against the plaintiff, upon a counter- claim, for a sum exceeding two hundred dollars. [See ante, p. 299.] § 2947. Consequence of neglect to plead counterclaim. Where the defendant, in an action to recover damages upon or for breach of a con- tract, neglects to interpose a counterclaim, consisting of a cause of action in his favor to recover damages for a like cause, which might have been allowed to him upon the trial of the action, he, and every person deriving title thereto through or from him, are forever thereafter precluded from maintaining an action to recover the same, or any part thereof. [See ante, p. 300.] § 2948. The last section qualified. But the prohibition contained in the last section does not extend to either of the following cases: 1. Where the amount of the counterclaim is two hundred dollars more than the judgment which the plaintiff recovers. 2. Where the counterclaim consists of a judgment, rendered before the commence- ment of the action, in which it might have been interposed. 3. Where the counterclaim consists of a claim for unliquidated damages. 4. Where the counterclaim consists of a claim, upon which another action was pending, at the time when the action was commenced. 6. Where judgment is taken against the defendant, without personal service of the summons upon him, or an appearance by him. § 2949. Judgment upon counterclaim. Where a counterclaim is established, which equals the plaintiff's demand, the judg- ment must be in favor of the defendant. Where it is less than the plaintiff's demand, the plaintiff must have judgment for the residue only. Where it exceeds the plain- tiff's demand, the defendant must have judgment for the excess, or so much thereof, as is due from the plaintiff, unless it is more than the sum of two hundred dollars. If it is more than two hundred dollars, or if no part of it is due from the plaintiff, the justice must, at the election of the defendant, either: 1. Set off so much of the counterclaim as is suf&cient to satisfy the plaintiff's de- mand and render judgment for the defendant for his costs; in which case, the defen- dant may maintain an action for the residue; or, 2. Render a judgment of discontinuance, with costs; in which case, the defendant may thereafter maintain an action for the whole. Where part of the excess is not due from the plaintiff, the judgment does not prejudice the defendant's right to recover, from another person, so much thereof as the judgment does not cancel. 380 CODE OF CIVIL PEOCEDUKE. § 2950. Judgment irbeii accounts exceed $400. Where, upon the trial of an action, the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds four hundred dollars, judgment of discontinuance must be rendered against the plaintiff, with costs. § 2951. Answer of title. ' The defendant may, either with or without other matter of defence, set forth in his answer facts, showing that the title to real property will come in question. Such an answer must be in writing; and it must be signed by the defendant, or his attorney or agent, and delivered to the justice. The justice must, thereupon, countersign the answer, and deliver it to the plaintiff. [See ante, p. 301.] § 2952. TJndertaking thereupon. In the case specified in the last section, the defendant must also deliver to the justice, with the answer, a written undertaking, executed by one or more sureties, approved by the justice; to the effect that, if the plaintiff, within twenty days there- after, deposits with the justice a summons of complaint in a new action, for the same cause, to be brought in the proper court, as prescribed in the next section, the defen- dant will, within twenty days after the deposit, give a written admission of the service thereof. Where the defendant was arrested in the action before the justice, the undertaking must further provide, that he will, at all times, render himself amen- able to any mandate, which may be issued to enforce a final judgment in the action so 10 be brought. If the defendant fails to comply with the undertaking, the sureties are liable thereupon, to an amount not exceeding two hundred dollars. § 2953. In iphat court new action to be brougbt. The court in which a new action is to be brought, as prescribed in the last section, is the supreme court, or the county court of the justice's county, at the plaintiff's election; except that, where the justice is a justice of the peace of the city of Buffalo, it is the superior court of Buffalo. § 2954. Wben action before justice to be discontinued. Upon the delivery of the undertaking to the justice, the action, before him is dis- continued, and each party must pay his own costs. The costs so paid by either party must be allowed to him, if he recovers costs in the new action, to be brought as pre- scribed in the last two sections. If the plaintiff fails to deposit with the justice a summons and complaint in the new action, before the expiration of twenty days after the delivery of the undertaking, the defendant may maintain an action against the plaintiff to recover his costs before the justice. § 2955. Effect of failure to give undertaking. If the undertaking is not delivered to the justice, he has jurisdiction of the action, and must proceed therein; and the defendant is precluded, in his defence, from draw- ing the titlfe in question. § 2956. When title comes in question on plaintiff's own showing. If, however, it appears, upon the trial, from the plaintiff's own showing, that the title to real property is in question, and the title is disputed by the defendant, the justice must dismiss the complaint, with costs, and render judgment against the, plaintiff accordingly. PLEADINGS. 381 § 2957. Pleadings in new action. Undertaking before justice, Tvben applicable. In the new action, to be brought after an action before a justice is discontinued, by the delivery of an answer and an undertaking, as prescribed in the last six sections of this act, the plaintiff must complain for the same cause of action only, upon which he relied before the justice; and the defendant's answer must set up the same defence only, which he made, before the justice. If the action is to recover a chattel, which was replevied in the justice's court, each undertaking, given in the justice's court, continues to be valid in, and is applicable to, the new action. § 2958. Answer of title as to one of several causes of action. Where, in an action before a justice, the plaintiff has two or more causes of action, and the defence, that the title to real property will come in question, is interposed as to one or more, but not as to all of them; the defendant may deliver an answer and undertaking as prescribed in sections 2951 and 2952 of this act, with respect to the cause or causes of action only, in which title will so come in question. Whereupon the justice must discontinue the action as to those causes of action only; the plaintiff may commence a new action therefor in the proper court; and the original action must proceed as to the other causes. 382 CODE or CIVIL PKOCEDUKE. TITLE IV. PEOCEEa)INGS BETWEEN THE JOINDER OF ISSUE AND THE TBIAL. Abticle 1. Adjournments. 2. Compelling the attendance of a witness. 3. Commissions to take testimony. Article Fibst. adjoubnments. Section 2959. Adjournment by justice. 2960. Adjournment on application of plaintiff. 2961. Adjournment on application of defendant. 2962. Id.; undertaking thereupon. 2963. Undertaking to procure discharge of defendant from custody. 2964. When defendant to be discharged. 2965. Subsequent adjournments. 2966. Justice may impose conditions upon adjournment. 2967. Adjournment when warrant to attach absent witness is issued. 2968. Adjournment not to exceed ninety days. § 2959. Adjoumment by justice. At the time of the return of a summons, or of the joinder of issue without process, but at no other time, the justice may, in his discretion and upon his own motion, adjourn the trial of the action not more than eight days, unless the defendant haa been arrested; in which case, no such adjournment shall be made. [See ante, p. 304.] § 2960. Adjonniinent on application of plaintiff. At the time of the return of a summons, or of the joinder of issue without process, the justice must, upon the application of the plaintiff, adjourn the trial of the action, not more than eight days, to a time fixed by the justice. But such an adjournment shall not be granted unless the plaintiff or his attorney, if required by the defendant, makes oath that the plaintiff cannot, for want of some material testimony or witness, specified by him, safely proceed to trial. [See ante, p. 305.] § 2961. Adjonrnment on application of defendant. At the time of the joinder of issue, the justice must, upon the application of the defendant, adjourn the trial of the action, upon his complying with the following requirements : 1. The defendant or his attorney must, if required by the plaintiff, or by the jus- tice, make oath that he verily believes that the defendant has a good defence to the action, and that he cannot safely proceed to trial, for want of some material testi- mony or witness, specified by him. 2. If required by the plaintiff, and the defendant has not been arrested in the action, an undertaking must be given to the plaintiff in behalf of the defendant, as prescribed in the next section. But such an undertaking need not be given, where the action is to recover a chattel. ADJOUKNMENTS. 383 Such an adjournment must be for such a reasonable time, fixed by the justice, as will enable the defendant to procure the testimony or witness. [See ante, p. 305.] § 2962. Id.; nndertakine thereupon. The undertaking prescribed in the last section must be executed by one or more sureties, approved by the justice; and must be to the effect that, if the plaintiff recovers judgment in the action; and if, before the expiration of ten days after the plaintiff becomes entitled to an execution upon the judgment, the defendant removes, secretes, assigns, or in any way disposes of any part of hia property, liable to levy and sale by virtue of an execution, except for the necessary support of himself and his family, and if an execution upon the judgment is returned whoUly or partly unsatis- fied; the sureties will, upon demand, pay to the plaintiff the sum due upon the judg- ment. § 2963. Undertaking to procure discharge of defendant from custody. Where the defendant has been arrested, the trial must be adjourned upon his appli- cation, upon the same terms, and in the same manner, as where he has not been arrested; except that the undertaking prescribed in the last section need not be given. A defendant, who procures such an adjournment, must continue, during the time of adjournment, in the custody of the constable; unless he gives an undertaking to the plaintiff, with one or more sureties, approved by the justice, to the effect that, if the plaintiff recovers judgment in the action; and if an execution is issued thereupon against the person of the defendant, within ten days after the plaintiff is entitled to the same; and if a return is made thereto, on or after the return day thereof, that the defendant cannot Be found; the sureties will pay to the plaintiff the amount due upon the judgment. If such an undertaking is given the defendant must be discharged from custody. § 2964. When defendant to he discharged. If the trial of an action in which the defendant has been arrested is adjourned with the consent of both parties, or upon the application of the plaintiff, the defendant must be discharged from custody. § 2965. Subsequent adjournments. The justice must, upon the application of the defendant, grant a second or subse- quent adjournment of the trial of the action, upon the defendant's giving security, if required, as prescribed in the foregoing provisions of this article, where he applies for a first adjournment; and upon his proving, by his own oath or otherwise, to the satisfaction of the justice, that he cannot safely proceed to trial for want of some material testimony or witness; and that he has used due diligence to obtain the testi- mony or witness. But if the defendant has given an undertaking upon a former adjournment, a new undertaking need not be given, unless it is required by the justice, or by the sureties in the former undertaking. [See ante, p. 306.] § 2966. Justice may impose conditions upon adjournment. Upon granting the defendant's application for an adjournment, where the trial has been once adjourned, or where the plaintiff is a non-resident of the county, the justice may, in his discretion, upon the plaintiff's application, direct that any witness on the part of the plaintiff, who is in attendance, be then examined under oath before the justice. Thereupon the testimony of the witness must be reduced in writing, certified 384 CODE OF CIVIL PKOCEDUEE. by the justice, and retained by him; to be read upon the trial, with the same effect, and subject to the same objections, as if it was then given orally by the witness. § 2967. AdjoaTnment xrlieii. warrant to attach absent witness is issued. Where, upon a trial, a warrant or attachment is issued to compel the attendance of a witness, who has failed to appear in obedience to a subpoena, the justice may, in his discretion, adjourn the trial, for such a time as he deems nepessary for the return of the warrant, not exceeding five days. [See ante, p. 304.1 § 2968. Adjournment not to esceed ninety days. The trial of an action shall not be adjourned to a time beyond ninety days from the joinder of issue, without the consent of both parties, except in one of the following cases : 1. Where a venire has been duly issued, but a jury has not been procured, so that it is necessary to issue a new venire, or to summon one or more talesmen, the trial may be adjourned, not more than two days beyond the ninety days, in order to enable the jury to be procured. 2. Where a jury has not been able to agree upon a verdict, and is discharged, the trial may be adjourned a sufficient time beyond the ninety days, to enable a new jury to be procured, as prescribed in title fifth of this chapter. 3. Where a warrant of attachment has been issued to compel the attendance of a witness, as prescribed in the last section, or a warrant has been issued to commit a recusant witness, as prescribed in title fifth of this chapter, an adjournment made thereupon, as prescribed by law, is not deemed a part of the ninety days. COMPELLING ATTENDANCE OF WITNESSES. 385 Abticle Second, compelling the attendance of a witness. Section 2969. When justice may issue subpoena 2970. Subpoena; how served. 2971. Warrant of attachment against defaulting witness. 2972. Id.; how executed; fees thereupon. 2973. Id.; when witness is in adjoining county. 2974. Fine for refusing to attend, or to testify. 2975. Id.; how imposed. 2976. Minute of conviction 2977. Execution thereupon. 2978. Money collected; how applied. 2979. Defaulting witness liable for damages. § 2969. IVIieii justice may issue subpoena. A justice of the peace may issue a subpoena, to compel a witness to attend, in the county where the justice resides, or in an adjoining county, but not otherwise, for the purpose of testifying upon the trial of an action, pending before himself, or before another justice. The subpoena may require the witness, except as otherwise expressly prescribed by law, to bring with him any book or paper, relating to the merits of the action. But a justice shall not issue a subpoena to compel the attendance of a witness before another justice, unless the person applying therefor proves, by his own oath, or the oath of another person, that an action is actually pending before the other justice. [See ante, p. 307.] § 2970. Subpoena; liOMr served. A subpoena may be served by a constable, or by any other person. It must be served by reading it, or stating its contents, to the witness, and by paying and tendering to him his lawful fee for one day's attendance as a witness. Wher« it is served by a constable, his return thereto, stating the manner of service and the sum paid, ia presumptive evidence of the facts therein stated. [Id.] § 2971. Warrant of attacbment against defaulting -witness. Where it is made to appear, to the satisfaction of the justice, by affidavit or other proof, that a person, duly subpoenaed to attend before him in an action, has refused or neglected to attend as a witness in obedience to the subpoena; and no just cause for the neglect or refusal is shown to exist; and the party, in whose behalf the wit- ness was subpoenaed, or his attorney, makes oath that the testimony of the witness is material; the justice must issue a warrant of attachment, directed generally to any constable of the county for the purpose of compelling the attendance of the witness. [See ante, p. 308.] § 2971. Id.; boir executed; fees thereupon. Such a warrant of attachment must be executed in the same manner as an order of arrest. The fees of the justice and constable for issuing and serving it, must be paid by the person against whom it is issued, unless he shows a reasonable ex in any part of the state, to the respondent personally, or in one of ths following methods : 1. By leaving it at his residence, with a person of suitable age and disci^etion or by serving the notice upon the respondent by mail, or in case an attorney appeared for respondent at the trial, the notice may be served upon the attorney, either personally, or in the manner prescribed for service of notice by mail in section seven hundred and ninety-seven of this act. 2. If service cannot be made, with due diligence, upon the respondent, in the manner prescribed in the foregoing subdivision, the notice of appeal may be served upon him by delivering it to the clerk of the appellate court. § 3049. Amendment; when alloived. Where the appellant, seasonably and in good faith, serves the notice of appeal, upon either the justice or the respondent, but omits, through mistake, inadvertence, or excusable neglect, to serve it upon the other, or to do any other act necessary to perfect the appeal, the appellate court, upon proof by affidavit of the facts, may, in its discretion, permit the omission to be supplied, or an amendment to be made, upon such terms as justice requires. [See ante, p. 349.] § 3050. Undertaking to stay execution upon judgment. If the appellant desires a stay of execution, he must give a, written undertaking, executed by one or more sureties, approved by the justice who rendered the judgment, or by a judge of the appellate court, to the effect that, if the appeal is dismissed; or if judgment is rendered against the appellant in the appellate court, and an execution issued thereupon is returned wholly or partly unsatisfied; the sureties will pay the amount of the judgment, or the portion thereof remaining unsatisfied, not exceeding a sum, specified in the undertaking, which must be at least one hundred dollars, and not less than twice the amount of the judgment; or, if the judgment in the justice's court is for the recovery of a chattel, that the sureties will pay the sum fixed by that judgment as the value of the chattel, together with the damages, if any, awarded for the taking, withholding, or detention thereof. A copy of the undertaking, with a APPEALS GENEEALLY. 403 notice of the delivery thereof, must be served with the notice of appeal, and in like manner. Section 1335 of this act applies to such an undertaking. [See ante, p. 347.] § 3051. Proceedings; how stayed. The delivery of the undertaking to the justice or to his clerk, appointed pursuant to law, and service of a copy thereof, and of notice of the delivery thereof, stay the issuing of an execution upon the judgment. If an execution has been issued, the service of a copy of the undertaking, certified by the justice or the clerk, or accom- panied with an affidavit, showing that it is a copy, and that the original has been duly filed, upon the officer holding the execution, stays further proceedings thereunder. § 3052. Id.; irlien justice is dead, etc. Where the justice is dead, or cannot, with due diligence, be found within the county, and he has no clerk, appointed pursuant to law, or the clerk cannot, with due diligence, be found within the county, the undertaking may be filed with the clerk of the appellate court. In that case, notice of the filing must be given to the respondent, as prescribed in section 3048 of this act, for service of a notice of appeal upon him. The filing of the undertaking has the same effect, as the delivery thereof to the justice; and a copy thereof certified by the county clerk, served upon the officer holding an execution, has the same effect, as if it was certified, as prescribed in the last section. § 3053. Betnm. The justice must, after ten and within thirty days from the service of the notice of appeal, and the payment of the costs and fee, as prescribed in section 3047 of this act make a return to the appellate court, annex thereto the notice of appeal and the under- taking, if any has been delivered to him or to his clerk, and file the same with the clerk of the appellate court. The return must contain all the proceedings, including the evidence and the judgment; unless the appellant has, in his notice of appeal, demanded a new trial, in a ease where he is entitled thereto, as prescribed in article third of this title. In the latter case, tEe justice must return the summons, together with each warrant of attachment, order of arrest, or requisition to replevy, or execution granted by him in the action, with the proof of the service thereof; the pleadings, or copies thereof; the proceedings upon the trial; and the judgment; with a brief statement of the amount and nature of the claims litigated by the parties. But he need not return the evidence, or any part thereof, unless he is required so to do by the specail order of the appellate court. [See ante, p. 350.] § 3054. Id.; irhen justice has gone out of office. Where the justice has gone out of office, he must, nevertheless, make a return in the same manner, and his return has the same effect, as if he remained in office. § 3055< Further return; how compelled. If the return is defective, the appellate court may direct the justice to make a further or amended return, as often as is necessary. The appellate court may compel the justice, by attachment, to make and file a return, or a further or amended return. The court is always open for those purposes. Where the justice has removed to another county of the State, the appellate court may compel him to make the return, as if he was still within the county where the judgment was rendered. 404 CODE OF CIVIL PROCEDUKE. § 3056. Id.; when justice is dead, etc. If the justice dies, becomes a lunatic, absconds, removes from the State, or otherwise becomes unable to make the return, the appellate court may receive affidavits, or examine witnesses, as to the evidence and other proceedings taken, and the judgment rendered, before the justice; and may determine the appeal, as if a return had been duly made by the justice. § 3057. Proceedings when error in fact is alleged. Where an appeal is founded upon an error in fact in the proceedings, not affecting the merits of the action, and not within the knowledge of the justice, the court may determine the matter upon affidavits; or, in its discretion, upon the examination of witnesses; or in both methods. [Id.] § 3058. Restitution upon reversal. Where the judgment of the justice is reversed or modified, the appellate court may make or compel restitution of property or of a right lost by means of the erroneous judgment; but not so as to affect the title of a purchaser, in good faith and for value, of property sold by virtue of a warrant of attachment in the action, or an execution issued upon the judgment. In that case, the appellate court may compel the value, or the purchase-price to be restored, or deposited to abide the event of the action, as justice requires. Six days' notice of an application for an order for restitution must be given; and, if the application is granted before judgment, the proper direction may be included therein. § 3059. Setting off costs and recovery. If, upon the appeal, a sum of money is awarded to one party, and costs are awarded to the adverse party, the appellate court must set off the one against the other, and render judgment for the balance. § 3060. Certain sums may be included in disbursements. Where the costs are awarded to the appellant, he may include, in the disbursements upon the appeal, the costs and fee paid to the justice upon taking the appeal; and, where the judgment rendered by the justice was against the appellant, he may also include, in those disbursements, the costs of the action, before the justice, which he would have been entitled to recover, if the judgment of the justice had been in his favor. § 3061. Judgment-roll. The clerk, immediately after entering final judgment upon the determination of an appeal, must attach together and file such of the following papers, as were used upon the appeal; which constitute the judgment-roll: 1. The return of the justice, or a certified copy thereof; the notice of appeal; and the undertaking, if any has been given. 2. The verdict, report, or decision, and each offer, if any, made as prescribed in article third of this title. 3. A certified copy of the judgment, together with each notice of exceptions, or case, which is then on file. 4. Every other paper, then on file, and a certified copy of every order, which in any- way involves the merits, or necessarily affects the judgment. APPEAL — JSTEW TEIAL NOT DEMANDED. 405 Abticle Second, appeal wheee a new teial is not had in the appbuxatb coitbt. Section 3062. Hearing of appeal; dismissal thereof. 3063. Judgment. 3064. When new trial in justice's court may be directed. 3065. Id.; proceedings before justice. 3066. Coats; when awarded. 3067. Amount of costs. § 3062. [Am'd, 1895.] Hearing of appeal; dismissal thereof. If the case is one where the appellant is not entitled to, or has not demanded, a new trial in the appellate court, as prescribed in section 3068 of this act, the respondent may, within twenty days of the service on him of the notice of appeal, serve upon the appellant or his attorney a written stipulation that the judgment appealed from may be reversed with five dollars costs and disbursements of the appeal, and thereafter no further steps shall be taken in such appeal, except to enter judgment in pursuance of such stipulation for the enforcement thereof; in case such stipulation shall not be so served, the appeal may be brought to a hearing in the appellate court at any term thereof at which such an appeal can be heard, held after the return is filed, upon a notice by either party of not less than eight days. It must be placed upon the calendar, and must continue thereupon without further notice until it is finally disposed of. If, after being regularly placed upon the calendar, neither party brings it to a hearing before the end of the second term thereafter at which.it might be noticed for hearing and heard, the court must dismiss the appeal unless it directs the same to be continued for cause shown. [See ante, pp. 351, 352.] § 3063. [Am'd 1893, 1900, 1911.] Judgment. In a case specified in the last section, the appeal must be heard upon the original papers, or a certified copy thereof, and a copy or copies thereof need not be furnished for the use of the court. The appellate court must render judgment according to the justice of the case, without regard to technical errors or defects which do not affect the merits. It may affirm, modify or reverse the judgment of the justice, in whole or in part, and as to any or all of the parties, and for errors of law or of fact, and where the judgment is contrary to or against the weight of the evidence, the appellate court may, upon its reversal of a judgment, order a new trial before the same justice or before another justice of the same county to be designated in the order, and at a time and place to be specified in the order, and in Bueh a case the costs of the appeal shall be in the discretion of the appellate court. [See ante, p. 351.1 § 3064. Wlien new trial in justice's court may be directed. If the appeal is taken by the defendant, who failed to appear before the justice, either upon the return of the summons, or at the time to which the trial of the action was adjourned; and he shows, by affidavit or otherwise, that manifest injustice has been done, and renders a satisfactory excuse for his default; the appellate court may, in its discretion, set aside the judgment appealed from, or stay proceedings thereunder. 406 CODE OF CIVIL PKOCEDUEE. and by order direct a new trial, before the same justice, or before another justice of the same county, designated in the order, at such a time and place, specified in the order, and upon such terms, as it deems proper. [See ante, p. 353.] § 3065. [Am'd, 1893.] Id.; proceedings before justice. Where a new trial is directed before a justice, as prescribed in the last two sections, the parties must appear before him, at the time and place specified in the order of the appellate court, without service of any notice, or of a copy of the order. Thereupon the like proceedings must be had in the action, as upon the return of a summons per- sonally served. S 3066. Costs; nrhen airarded. Upon an appeal provided for in this article, the award of costs is regulated as follows: 1. If the appeal is dismissed, because neither party brings it to a hearing, as pre- B-cribed in this article, costs shall not be awarded to either party. 2. If the judgment is reversed for an error in fact, not affecting the merits; or if a new trial is directed, before the same or another justice, as prescribed in this article; the costs of the appeal are in the discretion of the appellate court. 3. If the judgment is affirmed, costs must be awarded to the respondent. 4. If the judgment is reversed, costs must be awarded to the appellant. 5. If the judgment is affirmed only in part, the costs, or such a part thereof, as to the appellate court seems just, not exceeding ten dollars, besides disbursements, may be awarded to either party. § 3067. Amonnt of costs. Upon an appeal, provided for in this article, costs, when awarded, must be as fol- lows, besides disbursements: To the appellant, upon reversal, thirty dollars. To the respondent, upon affirmance, twenty-five dollar; APPEAL IN THE APPELLATE COUKT. 407 Aetiole Third, appeal foe a new tbial in the appellate couet. SECnos 3068. When appellant may demand new trial in appellate court, 3069. Undertaking to be given. 3070. Offer to compromise before return. 3071. Proceedings in appellate court. 3072. Offer to compromise after return. 3073. Amount of costs. § 3068. [Am'd, 1893.] 'When appellant may demand ne-nr trial in appellate court. Where an issue of fact or an issue of law was joined before the justice, and the sum, lor which judgment was demanded by either party in his pleading, exceeds fifty dol- lars; or where, in an action to recover a chattel, the value of the property, as fixed, together with the damages recovered, if any, exceeds fifty dollars; the appellant may, in his notice of appeal, except when the appeal is to the county court of Kings county, demand a new trial in the appellate court; and thereupon is entitled thereto, whether the defendant was or was not present at the trial. An appeal from a judgment of a justice's court or by a justice of the peace in the city of Brooklyn, or any of the towns in the county of Kings must be taken and disposed of in the manner prescribed in article first and section of this chapter and title, and not otherwise. [See ante, p. 354.] § 3069. ITndertaking to be given. To render such an appeal effectual, the appellant must at the time of the service of the notice of the appeal upon the justice, give the undertaking required, by this title, to stay the execution of the judgment. § 3070. [Am'd, 1895.] Offer to compromise before return. Upon an appeal, provided for in this article, from a judgment for a sum of money only, either party may, within fifteen days after service of the notice of appeal, serve upon the adverse party, or upon his attorney, a written offer to allow judgment to be rendered in the appellate court, in favor of either party, for a specified sum. If the offer is not accepted, it cannot be proved upon the trial. If the party, within ten days after service of the offer upon him, served upon the party making the same, or upon his attorney, written notice that he accepts the offer, he must file it, with an affidavit of service of the notice of acceptance, with the clerk of the appellate court, who thereupon must enter judgment accordingly. Where an offer is made as above provided, the party refusing to accept the same shall be liable for costs of the appeal, unless the recovery shall be more favorable to him than the sum offered. If neither party makes an offer, as provided herein, the party in whose favor the verdict, report or decision in the appellate court is given, shall be entitled to recover his costs upon the appeal. Costs when awarded according to the provisions of this section shall be in amounts provided in section three thousand and seventy-three of this article. § 3071. Proceedings in appellate court. Upon an appeal, provided for in this article, after the expiration of ten days from the time of filing the justice's return, the action is deemed an action at issue in the 408 CODE OF CIVIL PKOCEDUEE. appellate court; and all the proceedings therein, including the entry, enforcement, and review of the judgment, are the same as if the action had been commenced in the appellate court, except as otherwise specially prescribed in this chapter. [See ante, p. 354.] § 3072. Offer to compromise after return. Eeither party may, at any time after the action is deemed at issue in the appellate court, and before the trial, serve upon the adverse party, a written offer to allow judgment to be taken against him, for a sum, or property, or to the effect, therein specified, with or without costs. If there are two or more defendants, and the action can be severed, a like offer may be made by one or more defendants, against whom a separate judgment may be taken; and, if it is accepted, the action becomes severed, and may proceed against the other defendants, as if it had been originally commenced against them only. If the party receiving the offer, within ten days thereafter, serves upon the adverse party, notice that he accepts it, he may file it, with proof of accept- ance; and thereupon the clerk must enter judgment accordingly. If the offer is not thus accepted, it cannot be proved upon the trial; and if the party, to whom It ia made, fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, but must pay costs from that time. § 3073. Amount of costs. Upon an appeal, provided for in this article, costs, when awarded, must be as fol- lows, besides disbursements: For all proceedings before notice of trial, fifteen dollars. For all subsequent proceedings before trial, ten dollars. For the trial of an issue of law, fifteen dollars. For the trial of an issue of fact, twenty dollars. For the argument of a motion for a new trial on a case, fifteen dollars. For each term not more than five, at which the appeal is regularly on the calendar, excluding the term, at which it is tried, or otherwise finally disposed of, ten dollars. COSTS. 409 TITLE IX. COSTS. Section 3074. When prevailing party to recover costs. What costs allowed. 3075. When neither party to recover costs. 3076. Amount of costs limited. 3077. Costs upon demurrer. 3078. Taxation of costs. 3079. Increased costs. 3080. Costs on judgment for one or more defendants. 3081. Costs wrongfully collected may be recovered back. § 3074. [Am'd, 1903.] When prevailing party to recover costs. What costs allowed. Except as otherwise specially prescribed by law, a party who recovers judgment in an action in a justice's court, is entitled to costs; which must be included in the judgment. Costs consist of the fees, allowed by law, for services necessarily rendered in the action, at the request of the party entitled to costs, or paid by him, as pre- scribed by law; and of such other expenses, as a party is entitled to include in his costs, by express provision of law. The defendant in an action brought in a justice's court may require security for costs to be given, where the plaintiff is a foreign cor- poration. So far as practicable, the provisions of title three of chapter twenty-one of this act, shall apply to the proceedings for requiring such security, the requisites of the undertaking and the justification of sureties therein. [See ante, p. 314.] § 3075. [Am'd, 1909.] 'When neither party to recover costs. In either of the following cases; costs shall not be awarded to either party, but each party must pay his own costs: 1. Where the action is discontinued in the absence of the justice for more than one hour, after the summons is returnable, or after the time to which the trial has been adjourned. 2. Where the justice is disqualified, for a, reason specified in section fifteen of the judiciary law. 3. Where the action is discontinued, upon the ground that the defendant is an infant, for whom a guardian ad litem has not been appointed. 4. In an action to recover one or more chattels, where the plaintiff recovers a chat- tel, or part of a chattel, or the value thereof, and the defendant also recovers a chat- tel, or part of a chattel, which has been replevied and delivered to the plaintiff, or the value thereof. The plaintiff is entitled to costs, where both parties recover, as speci- fied in this subdivision, unless the chattel, for which the defendant recovers, has been replevied and delivered to the plaintiff. § 3076. [Am'd, 1895.] Amount of costs limited. The sum to be awarded as costs, to the prevailing party, except where it is other- wise specially prescribed by law, is limited as follows: 1. It cannot exceed fifteen dollars, besides the fees of witnesses, where, upon the trial of an issue of fact or of law, either party recovers damages to the amount of 410 CODE OF CIVIL PEOCEDURE. fifty dollars or more, or one or more chattels, the value of which, as fixed, together with the damages, if any, amounts to fifty dollars or more; or, where, if the defendant recovers judgment, the sum for which the plaintiff demanded judgment, was fifty dol- lars or more, or the value of all the chattels, to recover which the action was brought, was stated in the complaint at fifty dollars or more. 2. In every other case, it cannot exceed ten dollars, besides the fees of witnesses, attending from another county. But the prevailing party is entitled, in addition to the sum specified in this section, to the fees and expenses allowed by law for a commission issued to examine a witness not residing in the county or in an adjoining county; and for each adjournment exceed- ing one, which was granted upon the application of the party against whom the judg- ment is rendered. § 3077. Costs upon demurrer. Where judgment is rendered upon the trial of a demurrer, the costs of the trial must be included therein; otherwise costs are not allowed upon the trial of a demurrer. § 3078. Tasation of costs. Where a justice renders a judgment, he must specify, in his docltet-book, the items of costs, which were allowed by him. Before any item of costs is thus allowed, other than a fee to the justice, or to a juror or witness who attended, or to a constable who has certified the amount of his fee, upon a paper filed with the justice, the party must show, by his oath, or that of his attorney, to the satisfaction of the justice that the item was actually and legally paid or incurred. § 3079. Increased costs. Increased costs must be awarded in favor of the defendant, in an action in a justice's court, in a case, and increased at the rate, specified in section 3258 of this act. § 3080. Costs on judgment for one or more defendants. In an action against two or more defendants, not united in interest, who make separate defences by separate answers, if the plaintiff fails to recover judgment against all, the justice must award costs to those who have judgment in their favor. § 3081. Costs trrongfnlly eoUected may be recovered back. Where a justice includes in a judgment a greater amount of costs than is allowed by law, or an improper item of costs or fees, and the same is collected; the person from whom it was collected may, notwithstanding the judgment, recover from the justice who has received it, the amount thereof, with interest. STEATS. 411 TITLE X. ACTION ON SPECIAl PBOCEEDING, BELATINQ TO AN ANIMAL STRAYING UPON THE HIGHWAY. Section 3082. Action against person suffering animals to stray. 3083. Penalties to be recovered. 3084. Certain ofBcers to seize animals straying. 3085. When private person may seize such animals. 3086. Officer or person seizing to present petition. 3087. Precept thereupon. 3088. Id.; how served. 3089. Proof of service of precept. 3090. Answer; trial. 3091. Decision in favor of petitioner; warrant to sell; execution thereof. 3098. Application of proceeds of sale. 3093. Disposition of surplus. 3094. Id.; when no claim made within a year. 3095. Order upon claim for surplus; appeal therefrom. 3096. Proceedings upon decision in favor of person answering. 3097. Demand of possession before trial. Proceedings thereupon. 3098. Id. ; when animal wilfully set at large by third person. 3099. Action by owner in such a case. 3100. Action by petitioner and by officer. 3101. Demand of possession after final order and before sale. 3102. Order upon demand of possession; appeal therefrom. 3103. Id. ; stay of proceedings. 3104. Appeal from final order. 3105. Id.; by claimant; stay of proceedings and delivery of possession. 3106. Proceedings upon affirmance. 3107. Limitation of action for seizing animals. 3108. Certain actions cannot be maintained. 3109. Where several animals are trespassing, damages are entire. Proceedings in such cases. 3110. Proceedings in other cases, where there are different owners. 3111. Surplus, where there are different owners. 3112. When one action, etc., supersedes any other. 3113. Eights of officer when private person fails to prosecute. 3114. Person having a special property deemed owner. 3115. Agent may act for his principal. [See ante. Chapter XVIII.] § 3082. Action against person suffering animals to stray. Any person, who suffers or permits one or more cattle, horses, colts, asses, mules, swine, sheep, or goats, to run at large, or to he herded or pastured, in a public street, highway, park or place, elsewhere than in a city, incurs thereby the penalty or pen- alties specified in the next section; and any resident of the town, or the officer to whom a fine or penalty is to be paid for the benefit of the poor, as prescribed in section 2875 of this act, or the overseer or superintendent of the poor of the town or district, in which one or more of those animals are found so running at large, herded, or pas- tured, may maintain an action against him, in a justice's court, held in that town or 412 CODE OF CIVIL PKOCEDURE. district, to recover the penalty or penalties so incurred. Where the action is brought by a private person, the justice must pay the proceeds of an execution, issued upon a judgment therein in favor of the plaintiff, after deducting the costs, to the officer, who might have brought the action, as prescribed in this section, to be applied by him to the support of the poor within his toWn or district. [See ante, p. 342.] § 3083. Penalties to be recovered. If the plantiff recovers judgment, in an action brought as prescribed in the last section, the justice must award to him the following sums, by way of penalties, besides the costs of the action. 1. For each horse, colt, ass, mule, swine, bull, ox, cow, or calf, five dollars. 2. For each sheep or goat, one dollar. The entire amount of the penalties may be recovered, in one action, although it exceeds the sum, for which a justice can render a judgment in an ordinary action. § 3084. Certain officers to seize animals straying. Where one or more cattle, horses, colts, asses, mules, swine, sheep, or goats are found running at large, or being herded or pastured, in a public street, highway, park, or place, elsewhere than in a city, the overseer of highways of the road district, or, if they are so found within an incorporated village, the street commissioner thereof, having personal knowledge or being notified of the fact, must immediately seize the animal or animals, and keep it or them in his possession, until disposed of as pre- scribed in the following sections of this title. § 3085. When private person may seize such animals. Any person may seize one or more animals specified in the last section, then running at large, or being herded or pastured, in a public street, highway, park, or place, else- where than in a city, bordering upon real property owned or occupied by him; or then trespassing upon real property so owned or occupied, having entered thereupon from such a public street, highway, park, or place. The person making the seizure, must keep the animal or animals seized, in his possession, until disposed of as prescribed in the following sections of this title. § 3086. Officer or person seizing to present petition. An officer or other person, who seizes an animal or animals, as prescribed in either of the last two sections, must immediately file, with a justice of the peace of the town in which the seizure was made, a written petition, verified by his oath; setting forth the facts which bring the case within either of those sections; briefly describing the animal or animals seized; stating either the name of the owner, or that his name ia not known to the petitioner, and cannot be ascertained by him with reasonable dili- gence; and praying for a final order, directing the sale of the animal or animals seized, and the application of the proceeds thereof, as prescribed in this title. Where the petition alleges, that any animal or animals seized, were then trespassing upon real property owned or occupied by the petitioner, it must state the amount of the damages, if any, which the petitioner has sustained thereby. In that case, the decision of the justice, or, where the issues are tried by a jury, the verdict muet fix the amount of the [See ante, p. 342.] § 3087. Precept therenpon. Upon the presentation of the petition, the justice must issue a precept under his hand; directed to the owner, if his name is stated in the petition, or, if it is not stated. STRAYS. 413 directed generally to all persons having an interest in the animal or animals seized; briefly reciting the substance of the petition; describing the animal or animals seized, and requiring the person or persons, to whom the precept is directed, to show cause before the justice, at a time and place specified therein, not less than ten nor more than twenty days, after the issuing of the precept, why the prayer of the petition should not be granted. [See ante, p. 343.] § 3088. Id.; how served. The precept must be served upon the person, to whom it is directed by his name, within the same time, and in like manner as a summons is required to be served, as prescribed in section 2910 of this act. Where it is directed generally to all persons, having an interest in the animal or animals seized, it may be served by a constable of the town, or by an elector thereof, specially authorized to do so by a written indorse- ment upon the precept, under the hand of the justice, by posting a copy thereof in at least six public and conspicuous places in the town where the seizure was made; one of which places must be the nearest district school house, oi", if the seizure was made within an incorporated village, having schools in charge of a board of education, a building in which such a school is kept. Each copy must be so posted, within two days after the precept is issued. Where the precept is directed to a, person by his name, and proof is made by affidavit, to the satisfaction of the justice, that it cannot, with reasonable diligence, be personally served upon that person, within the county, at least six days before the return day thereof, the justice may, by a written order, direct that service thereof be made, by posting copies thereof, at least five days before the return day, as prescribed in this section; in which ease, service thereof may be made accordingly. § 3089. Proof of service of precept. At the place where the precept is returnable, and at the expiration of the time speci- fied in section 2893 of this act, the petitioner must, unless the precept is directed to a person by his name, and he appears, furnish proof of the service of the precept, as pre- scribed in the last section. If it was served by a, constable, either personally or by posting, his written return upon the precept is sufficient proof of the facts relating to the service, as stated therein. If it was served by a private person, proof of service must be made by affidavit. [See ante, p. 343.] § 3090. Answer; trial. The owner, or a person having an interest in any animal seized, may appear upon the return of the precept, and thereby make himself a party to the special proceeding. The person so appearing may, upon the return of the precept, file a written answer, subscribed by him or his attorney, and verified by the oath of the person subscribing it, denying, absolutely or upon information and belief, one or more material allegations contained in the petition. His answer must also set forth his interest in the animal or animals seized. The subsequent proceedings must be the same as in an action in a justice's court, wherein an issue of fact has been joined, except as otherwise specially prescribed in this title. § 3091. Decision in favor of petitioner; warrant to sell; execution thereof. If no person appears and answers, or if the decision of the justice, or the verdict of the jury, where the issues were tried by a jury, is in favor of the petitioner, the justice must make a final order, directing the sale of the animal or animals seized. 414 CODE OF CIVIL PEOOEDUKE. and the application of the proceeds thereof, as prescribed in this title. Thereupon the justice must issue a warrant, under his hand, directed generally to any constable of the county, commanding him to sell the animal or animals seized, at public auction, for the best price which he can obtain therefor; and to make return thereof to the justice, at a time and place therein specified, not less than ten nor more than twenty days thereafter. The sale must be made upon the like notice, and in like manner, as a sale of property, by virtue of an execution issued by a justice of the peace; and the constable must make return, as required by the warrant, and must pay the proceeds of the sale to the justice, deducting therefrom his fees, at the rate allowed by law for the collection of such an execution. [Id.] § 3092. Application of proceeds of sale. The justice must apply the proceeds of the sale as follows: 1. He must pay the costs of the petitioner, as taxed by the justice, at the same rate as the costs of an action brought before him, including the justice's fees in such an action; and also the fees for the service of the precept, either personally or by posting, at the rate allowed by law for personal service of summons by a constable. 2. Out of the remainder of the proceeds, he may retain to his own use, a fee of one dollar, for each animal sold. 3. Out of the remainder of the proceeds, he must pay to the officer, or other person making the seizure, the following fees, for the seizure of each animal seized and sold, to wit: one dollar for each horse, colt, ass, or mule; fifty cents for each bull, ox, cow, or calf; and twenty-five cents for each goat, sheep, or swine; together with a reasonable compensation, fixed by him, for the care and keeping of each animal, from the time of the seizure to the time of the sale; and, also, where any animal sold was seized, while trespassing upon real property owned or occupied by the petitioner, the damages sus- tained by the petitioner in consequence thereof, as ascertained by the decision of the justice, or the verdict of the jury upon which the final order was made. 4. Out of the remainder of the proceeds, he must pay to the officer, to whom a fine or penalty is to be paid for the benefit of the poor, as prescribed in section 2875 of this act, the following penalties, to wit: five dollars for each horse, colt, ass, mule, bull, ox, cow, calf, or swine, seized and sold; and one dollar for each sheep or goat, seized and sold; which penalties must be received by the officer, for the benefit of the poor of his town or district. 5. If any surplus remains, he must pay the same to the person or persons entitled thereto, as prescribed in the following sections of this title. § 3093. Disposition of surplus. Any person may, within ten days after the return of "the warrant, file, with the justice, a written claim to the surplus of the proceeds of the sale, or to any part thereof. On the eleventh day after the return, or, if it is a Sunday or a public holi- day, on the first day thereafter, which is neither Sunday nor a public holiday, the justice must proceed to inquire into the claims so filed; and, for the purpose of deter- mining them, he must hear the allegations and proofs of each claimant; and he may issue subpoenas, as upon the trial of an action. He may, upon the application of any claimant, and for good cause shown, adjourn the hearing, from time to time, but not more than thirty days in all. After hearing the allegations and proofs of all the claimants, he must decide the claims, and enter an order accordingly If no claim is filed; or if the right to the surplus money, or any part thereof, is not established, to the satisfaction of the justice, as prescribed in this section; any person, whose claim was not determined upon the hearing, may file a claim thereto, at any time before the STRAYS. 415 expiration of a year from the return of the warrant; and, thereupon, the justice must proceed, as prescribed in this section with respect to a claim filed within the ten days. § 3094. Id.; when no claim made i^thin a year. If, at the expiration of one year after the return of the warrant, any portion of the surplus remains, a claim to which has not been established to the satisfaction of the justice, pursuant to the provisions of the last section, the justice must pay it, for the benefit of the poor, to the officer to whom a fine or penalty is to be paid for the benefit of the poor, as prescribed in section 2875 of this act; and, thereupon, all persons are forever barred from any claim thereto. But if a claim, filed as prescribed in the last section, remains undetermined at the expiration of the year, the justice must deter- mine it within ten days thereafter; and, for that purpose, he must retain the surplus in his hands until the determination. § 3095. Order upon claim for snrplns; appeal therefrom. An appeal from an order determining a claim, as prescribed in the last two sections, may be taken to the county court, by a claimant, within ten days after the making of the order, as from a judgment of a justice in an action to recover a sum equal to the claim; and the proceedings thereupon are the same, except that an undertaking is not necessary for any purpose. Upon such an appeal, each other claimant, whose interest is affected by the order appealed from, must be made a respondent. If there is no such claimant, the officer entitled to the surplus must be made respondent; but costs cannot be awarded against him, unless he appears upon the appeal; in which case, the costs are in the discretion of the appellate court. Where an appeal, taken as prescribed in this section, is perfected, the county judge may, in his discretion, make an order extend- ing the time, within which payment of the surplus must be made, as prescribed in the last section, and staying payment accordingly. Unless such an order is made, and a copy thereof is served upon the justice, payment must be made as prescribed in the last section, notwithstanding the appeal; and upon proof of the payment, the appeal must be dismissed. Where an appeal is taken to the supreme court, from the deter- mination of the county court, the county judge, or a justice of the supreme court may make a like order, and with like effect. § 3096. Proceeding npon decision in favor of person ansurering. If the decision of the justice, or the verdict of the jury, where the issues are tried by a jury, is in favor of the person answering, it must fix the value of each animal seized. If the justice or the jury find that the seizure was malicious, and without probable cause, the decision or verdict must assess the damages sustained by the person answering, by means of the seizure and detention. The justice must thereupon make a final order, awarding to the person so answering, the return of the animal or animals so seized, or the value thereof if a return cannot be had; together with his costs, at the rates allowed by law in an action brought before him to recover a chattel; and, also, twice the sum assessed as his damages, if any. Thereupon a warrant must be issued by the justice to a constable, to the same effect, as an execution issued, in an action to recover a chattel, upon a judgment in favor of the defendant, where the chattel has not been delivered to him; and each provision of this chapter, relating to a judgment and an execution in such a case, applies to a final order made, and a war- rant issued thereupon, as prescribed in this section. § 3097. Demand of possession before trial. Proceedings thereupon. At any time after the precept is issued, and before the commencement of the trial, the owner of any animal seized may file with the justice a written demand of the pos- 416 CODE OF CIVIL PEOCEDUEE. possession thereof. Thereupon he is entitled to the possession, upon complying with the following terms: 1. He must pay the justice, for the use of the petitioner, the costs of the proceedings, to the time of filing the demand, as prescribed in subdivision first of section 3092 of this act, and, also, the sums payable on account of each animal, whereof possession is so demanded, as prescribed in subdivision third of the same section; which sums must be fixed by the justice, after hearing the allegations and proofs of the parties. 2. He must also pay to the justice, a fee of one dollar for each animal, whereof pos- session is so demanded. 3. If the petitioner is an ofiicer, to whom a fine or penalty is to be paid for the benefit of the poor, as prescribed in section 2876 of this act, the claimant must also pay to the justice, for the petitioner's use, the sum specified therein on account of each animal, whereof possession is so demanded. 4. The claimant must also prove, to the satisfaction of the justice, by affidavit or other competent evidence, that he is the owner of each animal, whereof possession is so demanded. Each person who has appeared must have notice of, and may oppose, the claim. [See ante, p. 344.] § 3098. Id.; when animal wilfully set at large by third person. But where, in a case specified in the last section, the person filing a demand, presents therewith to the justice suificient proof, by afiidavit or otherwise, that the running at large, herding, pasturing, or trespassing, by reason whereof the animal or animals, of which he demands possession, were seized, was caused by the wilful act, intended to effect that object, of a person other than the owner; and also makes the proof specified in subdivision fourth of that section; he is entitled to possession, pursuant to his demand, upon paying to the petitioner, or to the justice for his use, a reasonable sum, to be fixed by the justice, after hearing the allegations and proofs of the parties, as compensation for the care and keeping of the animal or animals, whereof possession is so demanded, and without paying any other sum, specified in the last section. § 3099. Action by owner in such a case. The owner of an animal, seized in consequence of a wilful act specified in the last section, may recover, in an action against the person who committed it, all damages sustained by him, in consequence thereof, including the sum paid in order to recover possession of the animal, as prescribed in the last section; and, in addition thereto, the sum of twenty dollars for each animal seized. § 3100. Action by petitioner. Where the possession of an animal has been delivered, as prescribed in the last section but one, an action may also be maintained, by the petitioner in the special proceedings before the justice, against the person who committed the wilful act, to recover, in addition to all other damages sustained by the plaintiff in consequence of the wilful act, all sums, to which the plaintiff would have been entitled out of the proceeds of the sale as prescribed in section 3092 of this act, other than the compensation paid for the oare and keeping of the animal. In the like case, if the petitioner is a private person, the officer, to whom a fine or penalty is to be paid for the benefit of the poor, as pre- scribd in section 2875 of this act, may maintain an action against the person, who committed the wilful act, to recover the penalties to which the plaintiff would have been entitled, out of the proceeds of the sale, as prescribed in that subdivision. Neither of the actions specified in this or the last section is affected by the pendency of, or the recovery of judgment in, either of the others. STKAYS. 417 § 3101. Demand of possession after final order and before sale. A person, entitled to demand the possession of an animal, as prescribed in section 3097 of this act, who did not appear upon the return of the precept, or upon the trial, may file, with the justice, a written demand for the possession, at any time after the final order, and not less than three days before the time appointed for the sale; and, thereupon, he is entitled to the possession, upon complying with the following terms: 1. He must furnish, by affidavit or other competent evidence, a sufficient excuse, to the satisfaction of the justice, for his failure to appear. 2. He must, in all respects, comply with the provisions of section 3097 of this act; except that it is necessary for him to pay only one-half of the justice's fee, as pre- scribed in subdivision second of that section; and one-half of the fees payable to tlie petitioner, for the seizure of each animal, as prescribed in subdivision third of section 3092 of this act. § 3102. Order upon demand of possession; appeal therefrom. Where a demand for the return of the possession of an animal is filed, as prescribed in either of the last five sections, the justice must, at the request of either party thereto, make, and enter in his minutes, an order determining the same. An appeal from such ail order may be taken to the county court, by the person making the demand, or by either party to the special proceeding, at any time before the final order in the special proceeding is made; and each person or party so entitled to appeal, must be made a respondent upon an appeal taken by one of the others. The appeal must be taken in like manner, as an appeal from a judgment of the justice in an action to recover a chattel; and the proceedings thereupon are the same, except as otherwise prescribed in the next section. [See ante, p. 344.] § 3103. Id.; stay of proceedings. An appeal from an order, specified in the last section, is not eff'ectual for any pur- pose, unless the appellant procures from the county judge, an order directing a stay of the proceedings upon the petition, and a stay of the execution of the order appealed from, and files it with the justice, within the time allowed for the appeal. The order may be granted or refused, in the discretion of the county judge, or granted upon such terms, as to security or otherwise, as he thinks proper; and it may be vacated or modified, either absolutely, or unless further security is given, in his discretion. § 3104. Appeal from final order. Within ten days after a final order upon a petition is made, as prescribed in this title, an appeal therefrom may be taken by the petitioner, or by the person answering, in like manner as an appeal from a judgment of the justice in an action to recover a sum of money, equal to the value of the animal or animals, and the proceedings there- upon are the same, except as otherwise prescribed in the next section § 3105. Id,; hy claimant; stay of proceedings and delivery of possession. An appeal from a final order, taken as prescribed in the last section, by the person answering, is not effectual for any purpose, unless the appellant files, with the notice of appeal, an order of the county judge, or, if he is absent from the county, of a justice of the supreme court, reciting that the appeal has been perfected, and that security has been given thereupon, as prescribed in this section, and directing a stay of pro- ceedings upon the final order appealed from, and that the possession of the animal or animals seized be delivered to the appellant. The order can be made only where an undertaking is given by the appellant, as required for the purpose of perfecting the appeal from a judgment, and staying the execution thereof; and also an undertaking, 27 418 CODE OF CIVIL PROCEDUHE. in the same or another instrument, to the effect that, if the final order appealed from is aflSrmed, or if the appeal is dismissed, the appellant will pay all sums which the justice awards against him, upon the hearing after the determination of the appeal, as prescribed in the next section, not exceeding a sum specified therein; which must be, at least, twice the amount of all the sums, which might be deducted from the pro- ceeds of the sale, as prescribed in section 3092 of this act. The sum must b«> fixed, and the undertaking must be approved, by the judge who granted the order. Upon filing the order with the justice, the appellant is forthwith entitled to the possession of the animal or animals seized. § 3106. Proceedings npon affirmance. If the final order appealed from is affirmed, upon an appeal taken by the person answering, the county court must appoint a time and place, at which the justice must fix the sums payable by the appellant, pursuant to his undertaking. The justice may adjourn the hearing to another place, and to another time, not exceeding three days after the time so appointed. The justice must fix the sums so payable, as if a warrant for the sale of the animals seized had been returned, and the proceeds thereof paid to him by the constable, as prescribed in section 3092 of this act. The undertaking xipou the appeal inures the benefit of each officer, to whom any sum is payable, as pre- scribed in that section; and with respect to any of those sums, the respondent is a trustee for the officer entitled thereto. § 3107. Limitation of action for seizing animals. Where an animal is seized, upon the ground that it was running at large, or was being herded or pastured, or was trespassing, contrary to the provisions of this title and the officer or other person making the seizure, immediately files his petition, and diligently prosecutes the same, as prescribed in this title; an action, to recover the animal so seized, or to recover damages for the seizure, or for any act subsequent thereto, must be commenced within one year after the cause of action accrues. § 3108. Certain actions cannot be maintained. A person, to whom a. precept was directed by his name, and who was personally served therewith, or a person who has appeared and answered in the special proceed- ing, or demanded the return of any animal seized, cannot maintain an action against the officer or other person seizing an animal, or a person acting by his command, or in his aid, in a case specified in the last section. But, except as specified in this section, the owner of an animal seized or detained, imder color of any provision of this title, may maintain an action to recover the animal, or its value, or damages, for the seizure or detention, or for any unlawful act subsequent thereto, if, in fact, the animal was not, at the time of the seizure, running at large, or being herded or pastured, or trespassing, as the case may be as specified in the foregoing provisions of this title. § 3109. Where several animals are trespassing, damages are entire. Pro- ceedings in such cases. For the purpose of determining the damages sustained by the petitioner, where two or more animals are found simultaneously trespassing upon real property, owned or occupied by him, all the damage done, by all the animals seized, is to be regarded as done by them jointly; and the petitioner's remedy therefor is entire, and must be enforced against all the animals, and the proceeds of the sale thereof. Where different persons, who are known, own different animals seized, the precept must be directed to all of them by their names. If one or more of. the owners are known, and the others are unknown, and cannot be ascertained with reasonable diligence, the precept must be directed to each known owner, by his name, and, also generally to all persons having STRAYS. 419 an interest in those animals, the owners of which are unknown. In a case specified in this section, a demand of the possession of an animal seized cannot be made, as pre- scribed in section 3097 or 3101 of this act, unless it is made with respect to all the animals seized, and by persons entitled to the possession of all of them. But a separate demand may be made, as prescribed in section 3098 of this act, by each owner of one or more animals seized; in which case, if possession is delivered to him, as pra. scribed in that section, the petitioner's remedy for his damages is the same, with respect to the animal or animals, of which possession is not so delivered, and against the proceeds of the sale thereof, as if those, whereof possession is so delivered, had not been trespassing upon the property. § 3110. Proceedings in other cases, irhere there are different ovners. Where the petitioner does not allege, that the animals seized, were trespassing upon real property owned or occupied by him, and different persons own different animals seized, a separate special proceeding may be instituted, as prescribed in this title, against each owner, or against two or more owners, with respect to the animals owned by Mm or them. Or the proceedings may be taken against all the owners jointly; in which case, each person to whom the precept is directed by his name, and each person having an interest in an animal seized, has the same right to demand the pos- session of the animal owned by him, and the same right to answer separately, as if the special proceeding was against him separately; and the final order may be In favor of one or more of the persons so answering, with respect to the animal or animals owned by him or them, and for his or their costs; and against the remainder of the persona answering, or to whom the precept was directed, or for the sale of the remainder of the animals, in like manner, as if the former persons had not answered, or had not been named in the precept. But the person, first making a demand of the possession of any animal seized, must pay all the costs to the time of the demand; and the person, subse- quently making a demand, is excused from the payment of any costs, except those which have accrued since the former demand. § 3111, Surplus where there are different owners. Where proceedings are taken jointly against different persons, who own different animals seized, as prescribed in either of the last two sections, the surplus, remaining in the justice's hands, must be distributed between them, in proportion to the value of the animals owned by each, to be determined by the justice. Any owner may claim separately his proportion of the surplus; and sections 3093 and 3094 of this act apply to a claim made, and to the disposition of the surplus arising, as prescribed in this section. § 31112. When one action, etc., supersedes any other. Where two or more persons, or an officer and a private person, are authoriezd, by this title, to bring an action, or to seize an animal, and take the proceedings prescribed in this title for the disposition thereof, the commencement of an action, or the seizure of the animal, by either of them, supersedes the right of any of the others to bring such an action, or to make such a seizure, with respect to the animal seized, or in question in the action. But the justice may, in his discretion, allow an officer or other person, who is interested in the recovery, or in the application of the proceeds of the sale, to appear in the action or special proceeding, for the purpose of protecting his interest, and to take such part in the proceedings therein as the justice thinks proper. § 3113. Rights of officer Trhen private person fails to prosecute. Where a seizure is made by a private person, as prescribed in this title, and the possession of an animal seized is abandoned by him, without filing a petition; or 420 CODE OF CIVIL PEOCEDUEE. where an action, brought by a private person, as prescribed in this title, is settled or discontinued by the plaintiff; the oflScer, to whom a penalty is payable, as prescribed in section 3083 of this act, or in subdivision fourth of section 3092 of this act, may, unless he has assented to the abandonment, settlement, or discontinuance, maintain an action against the owner of the animal in question to recover the penalty so payable to him; and, upon proof of the facts, which would have entitled the plaintiff in the former action, or the petitioner in the special proceeding, to recover, he is entitled to judgment accordingly. § 3114. Person having a special property deemed ovner. When a person is, at the time of the seizure, entitled to the possession of an animal, as against the general owner thereof, by virtue of a special property therein, he is deemed, for all the purposes of this title, the owner thereof. § 3115. Agent may act for his principal. The duly authorized agent of the owner or person entitled to the possession of an animal, as specified in the last section, may in his own name, answer, make any demand, or take any other proceeding, which the owner or person so entitled to take, as prescribed in this title. JUSTICES m CITY OF BEOOKLYN. 421 TITLE XL PBOnSIONS SPECIAIXT EELATIN6 TO COUKTS OF JUSTICES OF THE PEACE IN THE CITT OP BEOOKLYN. [Unrepealed sections.] § 3121. Interpreter for police court, and for first, second and third districts. There is an interpreter for the police court of the city of Brooklyn, and the justices' courts of the first, second and third districts of that city, who is appointed, and may be removed at pleasure, by the justices of those courts, or a majority of them. He is entitled to an annual salary, fixed and to be paid as prescribed by law. § 3122. Id.; for fourth and fifth districts. There is an interpreter for the justices' courts of the fourth and fifth districts of the city of Brooklyn, who is appointed, and may be removed at pleasure, by the justices of the peace of those districts. He is entitled to an annual salary, fixed and to be paid as prescribed by law. § 3123. Id.; for sisth district. There is an interpreter for the justice's court of the sixth district of the city of Brooklyn, who is appointed by the justice of the peace of that district, subject to confirmation by the common council, and may be removed by that justice at his pleasure. He is entitled to an annual salary, fixed and to be paid as prescribed by law. § 3124. Common council may appoint additional interpreters. The common council of the city of Brooklyn may, where it deems it necessary, upon the request of a justice, appoint one or more interpreters for justices' courts in that city, in addition to those provided for in the last three sections; fix their salaries; and prescribe the court or courts which they must attend. An officer, so appointed, may be removed by the common council, for cause. § 3125. Common council to designate attendants, etc. The common council of the city of Brooklyn may designate one or more policemen, or constables, to attend each of the justices' courts in that city. The common council may, by ordinance or otherwise, fix and define their duties in and about those courts, and may allow them such compensation, in lieu of all fees and perquisites, as it deems proper. § 3133. Application of other provisions. Holding court open. Each justice of the peace of the city of Brooklyn is a justice of the peace of Kings county; and each provision of this act, relating to the proceedings before a justice of the peace of a town, applies to the proceedings before a justice of the peace of that city, except as otherwise specially prescribed in this title. Each of those justices must hold his court open, from nine o'clock in the morning, until three o'clock in the afternoon. 422 CODE OF CIVIL PKOCEDUEE. TITLE XII. inSCELIANEOUS PBOVISIONS. SECTioif 3134. Mode of application of certain provisions of thia act. 3135. General requisites of mandates. 3136. Eeward to constable forbidden. 3137. Justice or constable not to buy claim, etc. 3138. Penalty. 3139. Violation of preceding sections a defence of action. 3140. 3141. Docket-boolc to be kept by justice, entries therein. 3142. Index to docket-book. 3143. Papers to be filed. 3144. Deposit of books and papers with town or city clerk. 3145. Certificate in docket-book deposited. 3146. Town or city clerk to demand books, etc., upon death, etc., of justice. 3147. Delivery; how compelled. 3148. Entries to be evidence. 3149. Justice to furnish copies of papers. 3150. Transfer of action when justice's term expires, etc. 3151. Id.; when justice is a witness 3152. Proceedings upon transfer. 3153. Penalty for not paying over money. 3154. Action on judgment of justice. 3155. Id.; proof of judgment, etc. 3156. Execution of mandate by private person. 3157. Constable to execute mandates in person. 3158. Sheriff to act where execution of mandate is resisted. § 3134. Mode of application of certain provisions of this act. Where a provision of this act, not contained in this chapter, is made applicable to proceedings before a justice of the peace, the application is subject to the qualification, that it does not include any thing, which is repugnant to any special provision of law, regulating the jurisdiction or powers of a justice of the peace, or the proceedings before him. Where a provision, thus made applicable, relates to the filing of a paper in a court, or with a clerk, the paper must, in an action or special proceeding before a justice of the peace, be filed with the justice, unless he has a clerk appointed pursuant to law; and where it confers a power upon a court or a judge, tlie provision, making it applicable to proceedings taken under this chapter, is to he construed, as conferring a like power upon the justice, before whom the action or special proceeding is brought. § 3135. General requisites of mandates. A mandate, issued by a justice of the peace, must be signed by him, and may be without seal. It must be entirely filled up at the time when it is delivered to an officer to be executed, so as to have no blank, either in the date thereof or otherwise; except that there may be a blank in a subpoena for the name of any or all of the witnesses. A mandate, issued and delivered to an officer to be executed, contrary to this section, is void. iHSCELLANEOUS PKOVISIONS. 423 § 3136. Re-ward to constable forbidden. A constable shall not ask or receive any money or other valuable thing from any person, as a consideration, reward, or inducement for omitting or delaying to arrest a person, or to take him to jail, or to sell property, by virtue of an execution, or to execute any other duty, pertaining to his office; or any money or valuable thing, other than the fees allowed to him by law, for executing any duty pertaining to his office. § 3137. Justice or constable not to bny claim, etc. A justice of the peace or constable shall not, directly or indirectly, buy, or be inter- ested in buying, a bond, note, or other demand or cause of action, for the purpose of bringing an action or instituting a special proceeding before a justice founded there- upon; nor shall a justice or a constable, either before or after an action or a special proceeding is commenced, lend or advance, or agree to lend or advance, or procure to be lent or advanced, any money or other valuable thing to any person, in consideration of, or as a reward for, or an inducement to, the placing or having placed in his hands, a debt or other demand or cause of action, for prosecution or collection. § 3138. Penalty. A justice of the peace or constable who violates a provision of the last three sections, is guilty of a misdemeanor; and shall be punished accordingly. A conviction also operates as a forfeiture of his office. § 3139. Violation of preceding sections a defence to action. It is a defence to an action, brought before a justice of the peace, that the demand, upon which it is founded, was bought and sold, or received for prosecution, contrary to the foregoing provisions of this title. In an action wherein such a defence is inter- posed, if the plaintiff, after being duly subpoenaed as a witness, fails to attend, pur- suant to the subpoena; or if, upon the trial, or upon his examination as a witness by virtue of a commision, he refuses to answer any question pertinent to show a violation of either of those provisions; the justice, besides punishing him, in a proper case, for his failure or refusal, must dismiss his complaint. The testimony, in such an action of the plaintiff, or any other witness, is not evidence, in a criminal prosecution against him, for violating either of those provisions. § 3140. [Am'd, 1899.] Docket-book to be kept by justice; entries therein. A justice of the peace must keep a docket-book, in which he must enter: 1. The title of every action or special proceeding commenced before him. 2. The time when the summons, or the mandate for the commencement of the special proceeding, was issued; with a statement of the nature of the mandate, and a memoran- dum of each order of arrest, warrant of attachment, or requisition to replevy, granted by him. 3. The time when the parties appeared before him, either without process, or upon the return of the summons, or of the mandate for the commencement of the special proceding. , 4. A concise statement of the substance of each oral pleading, or a memorandum of the filing of each written pleading. 5. Each adjourment; stating upon whose application, and to what time and place, it was made. 6. The issuing of a venire; stating upon whose application it was issued, and the time and place of the return thereof. 7. The time when a trial was had; and, if it was by a jury, the names of all the per- sons returned as having been notified to attend as jurors; stating who did not attend; who attended; and who were sworn. 424 CODE OF CIVIL PKOCEDUEE. 8. The name of each witness sworn upon the trial ; stating at whose request he was sworn; each objection made to the competency of a witness; and tlie decision there- upon. 9. The verdict of the jury, and the time of receiving it; or, if the jury disagreed and were discharged, a statement of that fact. 10. A concise statement of the substance of each order, made by him in the course of the action or special proceeding. 11. A judgment or final order; and the time of entering it. 12. The execution; the time of issuing it; the kind of execution; the name of the officer to whom it was delivered; and each renewal, with the date thereof. 13. The return of each execution; the time of the return; and a statement of any money paid to the justice thereupon, and when and by whom it was paid. 14. Each transcript of the judgment, given by him to be filed in the county clerk's office, and the time when it was given. 15. The appeal, if any ; and the time of service of the notice of appeal. 16. [Added, 1899. ] Such entries shall be made in a book which must be furnished to him by the clerk of the town in which he resides and to be designated as " justices' civil docket " and to be the property of, and a charge against, such town. § 3141. The same. Each of the entries, specified in the last section, must be made under the title of the action or special proceeding to which it relates; and, in addition thereto, the justice may enter in like manner any other proceeding, had before him in the action or special proceeding, which he thinks proper to enter. A docket-book, kept by a justice, must be kept open, during the hours, when a sheriff's office is required by law to be kept open, for search and examination by any person, upon his reasonable request and to a reason- able extent. § 3142. Index to docket-book. A justice of the peace must keep an alphabetical index to all the judgments, entered by him in his docket-book; and he must insert therein the names of all the parties to each judgment, and the page of the book, where the judgment is entered. § 3143. Papers to be filed. A justice of the peace must carefully file and preserve each affidavit or other paper, delivered to him to be filed in an action or special proceeding. § 3144. Deposit of books and papers with town or city clerk. If a justice of the peace, either before or after the expiration of his term of office, removes from the town or city wherein he was elected, he must forthwith deposit, with the clerk of that town or city, his docket-book, and all other books and papers, in his custody, relating to an action or a special proceeding, which has been heard by him, or commenced before him. A justice who is removed from office, must make a like deposit, within ten days after receiving notice of his removal, or afterwards, upon the demand of the clerk of the town or city. But the omission of the justice to make the deposit, does not afi'ect the validity of any book or paper, so required to be deposited, or of any pro- ceeding to which it relates. § 3145. Certificate in docket-book deposited. A justice of the peace must make, in each docket-book deposits by him, as prescribed in the last section, a certificate under his hand, to the effect that each judgment or order, entered therein, was duly rendered or made, as therein stated; and that the sum, appearing by the book to be due thereupon, has not been paid, 'to his knowldge. MISCELLANEOUS PEOVISIONS. 425 § 3146. [Am'd, 1905, 1916.] Town or city clerk to demand books, et cetera, upon death, et cetera, of justice. If a justice of the peace dies, or his ofBce becomes otherwise vacant, the town or city clerk must demand and receive all books and papers, which belonged to the justice in his official capacity, from any person having them in his possession, and such clerk may make and issue a trnnscript of a judgment so rendered by such a justice of the peace and appearing upon the docket of the justice of the peace so on file in his office, and issue an execution upon any such judgment which has not been docketed in the office of the county clerk, upon receiving his fees for the same, which shall be the same now allowed a justice of the peace for issuing a transcript, or transcripts, as the case may be, and such transcript or execution so issued by such clerk shall have the same force and effect as though the same had been issued by such justice of the peace during his term of office. § 3147. Delivery; how compelled. If any book or paper, required to be deposited with the town or city clerk, as pre- scribed in this title, is withheld, the like proceedings may be had, at the instance of the town or city clerk, to compel the deposit thereof, as are prescribed by law, where an officer refuses or neglects to deliver a book or paper in his custody as such officer, to his successor in office. § 3148. Entries to he evidence. An entry made, as prescribed by law, in the docket-book, kept by a justice of tbe peace, and deposited with the town or city clerk, as prescribed in this title. Is pre- sumptive evidence of the matters of fact stated therein; hut the presumption may be repelled by proof. § 3149. Justice to furnish copies of papers. A justice of the peace must furnish, upon request and payment of his fees, to any person interested in a judgment or order entered by him, a transcript of the judgment or order, together with a copy of all the entries in his docket-book, relating to the cause; a copy of his minutes of the evidence in the cause, or the substance of the tes- • timony, if he has not taken minutes; a copy of any paper on file in the cause; or such portions thereof as are required. § 3150. Transfer of action when justice's term expires, etc. If the term of office of a justice of the peace is about to expire, or he is about to remove from the town or city, before judgment is rendered in an action, or a final order is made in a special proceeding, pending before him, he must previously make a written order, reciting the fact, and directing the action or special proceeding to be continued before another justice of the same town or city, named in the order. § 3151. Id.; when justice is a witness. If, before an issue of fact is joined in an action or special proceeding, the defendant, or, where he has not been arrested, his attorney, presents to the justice satisfactory proof, by affidavit, that the justice, before whom the action or special proceeding is pending, is a material witness for the defendant, without whose testimony he cannot safely proceed to trial, setting forth the particular facts and circumstances, which he expects to prove by him; the justice must forthwith make a written order, directing the action or special proceeding to be continued before another justice of the same town or city, named in the order. § 3152. Proceedings upon transfer. Where an order is made, as prescribed in either of the last two sections, the constable must forthwith take it and all the papers in the action, with the body of the defendant. 426 CODE OF CIVIL PKOCEDUEE. if he is under arrest, before the justice named in the order. The plaintiff or petitioner must forthwith appear before the justice, who must take cognizance of the action or special proceeding, and must proceed therein as if it had been commenced before him. Costs, recovered in the action or special proceeding, include the fees allowed by law, for services performed by the constable and the justice, before the transfer, together with the fees allowed by law, for the proceedings before the justice to whom the cause is transferred. § 3153. Penalty for not paying over money. A justice of the peace, who neglects or refuses, within a reasonable time after demand, to pay any money, collected by him in his official capacity, to the person entitled thereto, is guilty of a misdemeanor, and shall be punished accordingly. A conviction also operates as a forfeiture of his office. § 3154. Action on judgment of justice. In an action upon a judgment of a justice of the peace, brought in the county wherein it was rendered, within five years after the rendition thereof, against a defen- dant upon whom the summons was personally served, no costs can be recovered, except where the justice, who rendered the judgment, is dead, or out of office, or otherwise incapable of acting; or has removed from the county; or where one of the parties has died; or where the docket of the judgment has been lost or destroyed. § 3155. Id.; proof of judgment, etc. In an action brought upon a judgment of a justice of the peace, who is dead, or out of office, or otherwise incapable of acting; or has removed from the county; or cannot be found therein; the original docket-book of the justice is presumptive evidence of any matter entered therein, as prescribed by law; but the presumption may be repelled by proof. If the docket-book is lost or destroyed, or if it cannot be produced, after reason- able effort to obtain it, the like proof may be given, respecting the recovery of the judg- ment, as upon any other question of fact. § 3156. Execution of mandate by private person. A justice of the peace, who issues any mandate, authorized by this chapter, except venire, may, at the request of the party, whenever he deems it expedient so to do, empower, by a written authority indorsed upon the mandate, any proper person of full age, not a party to the action, to serve or otherwise execute it. For that purpose the person so empowered has all the power and authority, and is subject to all the obliga- tions and liabilities, of a constable ; and his return is evidence in like manner as a constable's. But a person so empowered is not entitled to any fee or reward for his services. § 3157. Constable to execute mandates in person. A constable, to whom a mandate is directed and delivered as prescribed in this chapter, must execute it in person, pursuant to the tenor thereof. He cannot act by deputy in such a case. § 3158. [Am'd, 1909.] SberifF to act where execution of mandate is re- sisted. If a constable, to whom a mandate, issued by a justice of the peace, is directed and delivered, finds, or has reason to apprehend, that resistance will be made to the execu- tion thereof, he may deliver it to the sheriff of the county, with a written certiflcato, stating the facts, and requiring the sheriff to execute it. Thereupon the sheriff must execute the mandate; and he is subject to all liabilities attaching to a constable in executing it. Sections four hundred and four hundred and one of the judiciary law apply to a mandate delivered to a sheriff, as prescribed in this section. PROCEEDINGS IN CITY COURTS. 427 CHAPTER XX. Pbovisions Relating to Certain Courts in Cities, and the Phooeedinos Therein. TITLE I.— The City Court of the City of New York. TITLE II.— The Mayor's Court of the City of Hudson, and the Recorders' Courts of the Cities of Utioa and Oswego. TITLE III.— The City Court of Yonkers. TITLE IV.— The District Courts of the City of New York, and the Justices' Courts of the Cities of Albany and Troy. TITLE v.— The Municipal Court of the City of Rochester. [Titles I, II and III, omitted.] TITLE IV. the district courts of the city of new tork, and the justices' courts op THIl cities of ALBANY* AND TBOT. Abticle 1. Provisions generally applicable to all courts specified in this title. 2. Provisions exclusively applicable to the district courts of the city of New York. 3. Provisions exclusively applicable to the justices' courts of Albany and Troy. Article First, provisions generally applicable to all courts specified in this title. Section 3207. Service of complaint with summons; proceedings thereupon. 3208. Id. ; and proof of service. 3209. Action to be commenced by service of summons. 3210. Order of arrest; warrant of attachment; requisition to replevy. 3211. The last section qualified. 3212. Proceedings where title to real property is in question. 3213. Appeals. 3214. Effect of this act, upon jurisdiction and proceedings. § 3207. Service of complaint with summons; proceedings thereupon. Section 3126 of this act applies to an action to recover upon or for breach of a con- tract, express or implied, brought in a district court of the city of New York, in the justice's court of the city of Albany, or in the justice's court of the city of Troy. § 3208. Id,; and proof of service. In an action brought in either of those courts, the summons, and, in a proper case, a copy of the complaint, may be served by any person not a party to the action ; except that, where the action is brought in a district court of the city of New York, a person, other than a constable or a marshal, serving the same, must be empowered to do so, * The title Is now " City Court of Albany," Laws 1984, ch. 122. 428 CODE OF CIVIL PROCEDURE. either by the justice, or by the attorney to the corporation, as now prescribed by law. Proof of service thereof, by such a person, must be made by his affidavit; which must state the particular place, time, and manner of service, and that the affiant knew the person so served, to be the person mentioned and described in the summons, as defen- dant therein. § 3209. Action to be commeuced by service of summons. An action, brought in either of those courts, at any time after this chapter takes effect, must be commenced by the voluntary appearance of, and joinder of issue by, the parties, or by the service of a summons. § 3210. [Am'd, 1884.] Order of arrest; warrant of attacbment; requisi- tion to replevy. Articles third, fourth, and fifth of title second of chapter nineteenth of this act apply to an action brought in either of those courts, except as otherwise prescribed in the next section. And except, also, that where the warrant of attachment, or requisition to replevy, is issued out of a district court of the city of New York, against a. non-resident defendant, the said warrant, or requisition, must require the marshal to attach or replevy the property, on or before a day therein specified, which must be not less than two nor more than four days before the return day of the summons. § 3211. The last section qualified. The provisions of the last section are subject to the following qualifications: 1. Nothing contained in either of the articles, so made applicable, applies to an order of arrest, in an action brought in a district court of the city of New York, or affects any provision of this title, relating to the jurisdiction of either of the courts specified in this title. 2. An order of arrest in an action brought in the justice's court of Albany, or the justice's court of Troy, or a warrant of attachment, or a requisition to replevy, in either of those courts, or in a district court of the city of New York, must be granted by, and directed to, and executed by, the officer empowered, by the statutes remaining in force after this chapter takes effect, to grant or execute, as the case requires, in the same court, a warrant to arrest, a warrant of attachment, or ti requisition in an action to recover a, chattel. 3. The manner of applying for, granting, and executing an order of arrest, a warrant of attachment, or a requisition to replevy, and the proceedings thereupon, and with respect thereto, as prescribed in the articles so made applicable, are subject to the statutes, remaining unrepealed after this chapter takes effect, specially applicable to those courts, or to either or any of them, prescribing the duties of the justices, or of the clerks thereof, or regulating the mode of transacting business in an action brought therein. § 3212. Proceedings where title to real property is in question. Sections 2951 and 2958 of this act, both inclusive, apply to an action, brought in either of those courts; except that, where the action is brought in a district court of the city of New York, the surety upon the defendant's undertaking is liable, in the case specified in section 2952, to any amount, for which judgment might have been rendered by the district court, if the answer and undertaking had not been delivered. § 3213. [Am'd, 1895.] Appeals. An appeal from a judgment, rendered in a district court of the city of New York, may be taken- to the supreme court, in the cases, and in the manner prescribed in articles first and second of title eight of chapter nineteenth of this act. Such appeal PROCEEDINGS IN" CITY COURTS. 429 shall be heard ia such manner and by such justice or justices as the appellate division of the supreme court in the first department shall direct. The appellate court may re- verse, aflSrm or modify the judgment appealed from, and where a judgment is reversed, may order a new trial in the district court. Where a judgment is modified, or where a new trial is ordered, costs shall be in the discretion of the appellate court. An appeal from the judgment rendered in the justice's court of the city of Albany, or the Justice's court of the city of Troy, may be taken in a case where an appeal may be taken to a county court from a judgment rendered by a justice of the peace as prescribed by title eight of that chapter, and in no other case. Such an appeal must be taken to the county court of the county wherein the court is located. § 3214. Effect of tbis act, npon jurisdiction and proceedings. Except as otherwise specially prescribed in this title, this act does not affect any statutory provision remaining unrepealed after this chapter takes effect, relating to the jurisdiction and powers of either of those courts; the appointment, qualification, tenure of ofSce, powers, or duties of the justices, or of the clerk, or any other ofBcer thereof; or the proceedings therein; except that a provision of this or any other statute, whereby a proceeding in an action, brought in either of those courts, or a special pro- ceeding, brought therein, or before a justice thereof, ia assimilated, either expressly, or by reference to another provision of law, to a proceding, in an action or a special pro- ceeding before a justice of the peace, is deemed to refer to the corresponding proceed- ing, as prescribed in chapter nineteenth of this act. 430 CODE OF CIVIL PEOCEDUEE. Abticle Second. pbovisions excltjsryelt applicable to the district couets op the city of new tokk. [Sections 3215, 3216, 3217, 3219, 3220, 3221, and 3222 repealed in 1902. See Munici- pal Court Act of New York City] § 3218. Proceedings tJiereupon. An order of arrest must direct that the summons accompanying it be made return- able, immediately upon the arrest of the defendant; and it must specify a sum, in which the defendant may be let to bail. Sections 3179 to 3181, both inclusive, section 3182, except the last sentence thereof, and section 3183 of this act, apply to an order of arrest, granted in an action in either of those courts; and to the proceedings upon, and relating to, the execution thereof. In all other respects, the statutory provisions remaining unrepealed after this chapter takes effect, which apply to and regulate the application for a warrant to arrest a defendant, the granting and execution thereof, and the proceedings subsequent thereto, apply to and regulate the application for an order of arrest, the granting and execution thereof, and the proceedings subsequent thereto. JUSTICES' COUETS OF ALBANY AND TEOY 431 Aeticij; Thibd. pbovisions excltrsrvelt applicable to the justices' ooubts of albany and tbot. Section 3223. Jurisdiction in civil actions. 3224. Id. ; upon judgment by confession 3225. Docketing judgment; execution thereupon. 3225a. Application of certain sections. g 3223. Jurisdiction in civil actions. The justice's court of the city of Albany, and the justice's court of the city of Troy, have jurisdiction, each within the city where the court is located, of an action, of which a justice of the peace has jurisdiction, as prescribed in sections 1737, 2861, 2862, and 2863 of this act; and also of an action to recover a penalty, given by the charter, or a by-law or an ordinance of the common council of that city, where the plaintiff de- mands judgment for a sum, not exceeding two hundred dollars. Neither of those courts has jurisdiction of any other civil action; but this section does not affect the jurisdic- tion conferred, by the statutory provisions remaining in force after this chapter takes effect, upon either of those courts, in a special proceeding. § 3224. Id.; upon judgment by confession. The jurisdiction of each of those courts extends also to the taking and entry of a judgment, upon the confession of a defendant, as prescribed in title sixth of chapter nineteenth of this act, where the sum confessed does not exceed five hundred dollars. § 3225. Docketing judgments; execution thereupon. The provisions of sections 3017 to 3022 of this act, both inclusive, apply to a judg- ment rendered in either of those courts, and to the proceedings subsequent thereto, and in the action wherein the judgment was rendered, except that the transcript, filed in the clerk's oflSce of the county wherein the court is located, must be furnished by the clerk of the court, in which the judgment was rendered. § 3225a. [Added, 1897.] Application of certain sections. The provisions of sections twenty-nine hundred and ninety to thirty hundred and nine of this act, both inclusive, apply to the justice's court of the city of Troy, except that the city clerk of the city of Troy shall fulfil all the duties therein required of the town clerk. 432 CODE OF CIVIL PKOCEDUEE. TITLE V. THE MUNICIPAL COUBT OP THE CITY OP KOCHESTEE. Section 3226. Provisions of chapter 19 generally applicable to the court and judges. 3227. Appeals. § 3226. [Am'd, 1907, 1908.] Provisions of chapter 19 generally applicable to the court and judges. The provisions of chapter nineteenth of this act, excluding section three thousand sixty-three, excluding article three of title eight, and excluding titles ten and eleven thereof, apply to the city court, civil branch, of the city of Rochester, and to the judges thereof; except so far as they are inconsistent with the next section, or with the charter of the city of Rochester or with any other statute applying to said court or the judges thereof as now existing or hereafter amended. For the purpose of applying the same, the court is deemed a justice's court; each judge thereof is deemed a justice of the peace; and the city of Rochester is deemed a town of Jlonroe county. § 3227. [Added, 1907; am'd, 1908, 1918.] Appeals. Appeals may be taken to the county court of Monroe county from judgments and orders of the city court, civil branch, of the city of Rochester and from orders of the judges thereof as provided in articles one and two of title eight of chapter nineteen of this act, and the provisions thereof, except section three thousand and sixty-three, apply to such appeals, except as herein expressly modified. The appeal must be heard on the return or a certified or stipulated copy thereof, and may be brought on for hear- ing in the county court in the same manner and on the same notice as motions are or may be brought on for hearing in said court, or may be put on the calendar of said court as provided in section three thousand and sixty-two of this act. An appellant may apply, to the county court to open a default as provided in section three thousand and sixty-four of this act, which application may be heard without the return unless otherwise ordered by the court; and an appellant may apply upon aflBdavits and the return to said court for a new trial or hearing upon the ground of newly discovered evi- dence ; the court in either case may stay any or all proceedings under the judgment or order appealed from upon such terms as it deems proper, and may grant a new trial or hearing as hereinafter provided upon such terms as it deems proper. The county court and other appellate courts on such appeals must render judgment according to the justice of the case, without regard to technical errors or defects which do not affect the merits, and may afRrm or reverse, wholly or partly, or modify, the judgment or order appealed from for errors of law or of fact, or because the judgment is excessive or insufficient or contrary to the evidence or contrary to law, and may, if necessary or proper, grant a new trial or hearing in the city court, civil branch, of the city of Rochester, or before a judge thereof, as may be proper, at a time designated by it, and thereupon the city court, civil branch, or judge must proceed, and adjournments may be granted, a jury trial demanded, and all other proceedings taken as if the action or proceeding had been commenced anew. A copy of the judgment or order granting a new trial or hearing must be served by the party entering it on the opposite party or his attorney at least two days before the time set for the new trial or hearing. When a new trial or hearing is granted the appellate court may in its discretian award costs of the appeal to either party absolutely or to abide the event. SUMMAEY PEOCEEDINGS. 433 TITLE II. SUMMAEY PBOCEEDINGS TO EECOVEB THE POSSESSION OP REAL PROPERTY. [Chapter XVII, title II, Code of Civil Procedure.] Section 2231. When tenant may be removed. 2232. Person holding over land sold, etc., may be removed. 2233. Id. ; in case of forcible entry or detainer. 2234. Application; to whom made. 2235. Petition by person entitled to possesion. 2236. Notice to be given in certain cases. 2237. Petition by neighbor of bawdy-house, etc. 2238. Precept. 2239. Id.; in New York city. 2240. Id. ; how served. 2241. Duty of person to whom copy of precept is delivered. 2242. When precept to be served on landlord of bawdy-house, etc. 2243. Proof of service of precept. 2244. Answer. 2245. Issues upon forcible entry or detainer. 2246. In N. Y. district court cause may be transferred to another court for trial. 2247. Trial. 2248. Adjournment. 2249. Final order upon trial. 2250. Amount of costs; how collected. 2251. Warrant to dispossess defendant. 2252. Execution of warrant. 2253. When warrant cancels lease; exception. 2254. Warrant, when and how stayed. 2255. Undertaking; how disposed of. 2256. Redemption by lessee. 2257. Id.; by creditor of lessee. 2258. The last two sections qualified. 2259. Order to be made thereupon; liability of person redeeming. 2260. Appeal. 2261. Effect of appeal limited in certain cases. 2262. Warrants; how stayed on appeal. 2263. Appellate court may award restitution; action for damages. 2264. Application of this title; effect of final order. 2265. How proceedings under this title to be stayed. § 2231. When tenant may be removed. In either of the following cases, a tenant or lessee at will, or at sufferance, or for part of a year, or for one or more years, of real property, including a specific or undivided portion of a house, or other dwelling, and his assigns, undertenants, or legal representatives, may be removed therefrom, as prescribed in this title: 1. [Am'd 1894.] Where he holds over and continues in possession of the demised premises, or any portion thereof, after the expiration of his term, without the permis- 28 434 CODE OF CIVIL PKOCEDURE. sion of the landlord; including, elsewhere than in the city of New York and Brooklyn, a case where a person to be removed became the occupant of the premises as a servant or employee and the relation of master and servant or employer and employee has been lawfully terminated or the time fixed for such occupancy by the agreement between the parties, has expired; but if by such agreement the servant was to be permitted to occupy such premises for a period beyond the term of employment such removal shall not be had under this subdivision unless such period so permitted for occupancy has expired, or the relation of master and servant or employer and employee was lawfully terminated before the expiration of such term of employment; but nothing in this sub- division contained shall be construed as preventing the removal of such occupant in any other lawful manner. 2. Where he holds over, without the like permission, after a default in the payment of rent, pursuant to the agreement under which the demised premises are held, and a demand of the rent has been made, or at least three days' notice in writing, requiring, in the alternative, the payment of the rent, or the possession of the premises, has been served, in behalf of the person entitled to the rent, upon the person owing it, as pre- scribed in this title for the service of a precept. 3. Where in any city in this State he holds over and continues in possession of the demised premises, or any portion thereof, after default in the payment, for sixty days after the same shall be payable, of any taxes or assessments levied on such demised premises which he has agreed in writing to pay pursuant to the agreement under which the demised premises are held, and a demand for the payment of such taxes or assess- ments has been made, or at least three days' notice in writing, requiring, in the alter- native, the payment thereof and of any interest and penalty thereon, or the possession of the premises, has been served, in behalf of the landlord, upon the lessee, as prescribed in this title for the service of the precept. An acceptance of any rent by the lessor or his legal representatives shall not be construed as a waiver of the agreement of the lessee to pay taxes or assessments, so as to preclude the lessor from the benefits of this chapter. 4. Where he, being in possession under a lease for a term of three year or less, has, during the term, taken the benefit of an insolvent act, or has been adjudicated a bank- rupt, under a bankrupt law of the United States. 5. [Am'd, 1913.] Where the demised premises, or any part thereof, are used or occu- pied as a bawdy-house or house or place of assignation for lewd persons, or for purposes of prostitution, or for any illegal trade or manufacture, or other illegal business. [See ante, p. 334.] g 2232. Person holding over land sold, etc., may be removed. In either of the following cases, a person, wlio holds over and continues in possession of real property, after notice to quit the same has been given, as prescribed in section 2236 of this act, and his assigns, tenants, or legal representatives, may be removed therefrom, as prescribed en this title: 1. Where the property has been sold by virtue of an execution against him, or a person under whom he claims, and a title under the sale has been perfected. 2. Where the property has been duly sold, upon the foreclosure, by proceedings taken as prescribed in title ninth of this chapter, of a mortgage, executed by him, or a person under whom he claims, and the title under the foreclosure has been duly perfected. 3. Where he occupies or holds the property, under an agreement with the owner to occupy and cultivate it upon shares, or for a share of the crops, and the time, fixed in the agreement for his occupancy, has expired. 4. [Am'd, 1894.] Where he, or the person to whom he has succeeded, has intruded into, or squatted upon, any real property, without the permission of the person entitled to the possession thereof, and the occupancy, thus commenced, has continued without SUMMAEY PROCEEDINGS. 435 permission from the latter; or, after a permission given by him has been revoked, and notice of the revocation given to the person or persons to be removed. [See ante, p. 337.] § 2233. Id.; in case of forcible entey or detainer. An entry shall not be made into real property, but in a case where entry is given by law; and, in such a case, only in a peaceable manner, not with strong hand nor with multitude of people. A person who makes a forcible entry forbidden by this section, or who, having peaceably entered upon real property, holds the possession thereof by force, and his assigns, undertenants, and legal representatives, may be removed there- from, as prescribed in this title. § 2234. [Am'd, 1895.] Application; to nrhom made. Application for removal of a person from real property, as prescribed in this title, may be made to the county judge or special county judge of the county or a justice of the peace of the city or town or the mayor or recorder of the city, wherein the real property, or a portion thereof, is situated. Application may also be made, if the property, or a portion thereof, be situated in the city of New York to a judge of the city court of the city of New York or the district court of the district within which the property, or a portion thereof, is situated, or if the judge of such court be for any reason disqualified, to the district court of an adjoining district; if in the city of Brooklyn, to a police justice of that city; if in the city of Albany, or the city of Troy, to a justice of the justices' court of that city; if in the city of Yonkers, to the city judge of that city; if in the city of Syracuse, to a judge of the municipal court of said city; if in the cities of Rochester or Buffalo, to a judge of the city court of said cities. Where the property is situated in an incorporated village, the boundaries of which embrace portions of two or more towns, application may be made to a justice of the peace of either town, who keeps an office in the village. iSee ante, p. 338.] § 2235. [Am'd, 1913.] Who can maintain proceedings; contents of peti- tion. The application may be made by the landlord or lessor of the demised premises; the purchaser, upon the execution or foreclosure sale; the person forcibly put out or kept out; the person with whom, as owner, the agreement was made, or the owner of the property occupied under an agreement, to cultivate the property upon shares, or for a share of the crops; or the person lawfully entitled to the possession of the property intruded into or squatted upon, as the case requires; or by the legal representative, agent, or assignee of the landlord, purchaser, or other person, so entitled to apply, or by the person or corporation authorized to proceed under section twenty-two hundred and thirty-seven of this act. The applicant must present to the judge or justice, a written petition, verified in like manner as a verified complaint in an action brought in the supreme court; describing the premises of which the possession is claimed, and the interest therein of the petitioner, or the person whom he represents; stating the facts which, according to the provisions of this title, authorize the application by the petitioner, and the removal of the person in possession; naming, or otherwise intelli- gibly designating the person or persons against whom the special proceeding is insti- tuted and if there are two or more such persons, and some are undertenants or assigns, specifying who are principals or tenants, and who are undertenants or assigns; and praying for a final order to remove him or them accordingly. [See ante, p. 339.] 436 CODE OF CIVIL PROCEDUKE. g 2236, Notice to be given in certain cases. Where the person to be removed is a tenant at will, or at sufferance, the petition must state the facts, showing that the tenancy has been terminated, by giving notice, as required by law. Where the application is made in a case specified in section 2232 of this act, the petition must state that a. notice, in behalf of the applicant, requiring all persons occupying the property to quit the same, by a day specified, has been either served personally upon the person or persons to be removed, or affixed conspicuously upon the property, at least ten days before the day specified therein. [See ante, p. 335.] § 2237. [Am'd, 1913.] Petition in case of bawdy-house, etc. An owner or tenant, including a tenant of one or more rooms of an apartment house or tenement house, of any premises within two hundred feet from other demised real property used or occupied in whole or in part, as a bawdy-house, or house, or place of assignation for lewd persons, or for purposes of prostitution, or any domestic corpora- tion organized for the suppression of vice, subject to or which submits to visitation by the state board of charities, and possesses a certificate from such board of such fact and of conformity with its regulations, may serve personally upon the owner or land- lord of the premises, so used or occupied, or upon his agent, a written notice, requiring the owner or landlord to make an application for the removal of the person so using or occupying the same. If the owner or landlord, or his agent, does not make such application, within five days thereafter; or, having made it, does not in good faith diligently prosecute it; the person or corporation giving the notice may make an application for such removal on a petition stating the jurisdictional facts, which application shall have the same eff'ect, except as otherwise expressly prescribed in this title, as though the applicant were the owner or landlord of the premises, and shall have precedence over any similar application thereafter made by such owner or land- lord or to one theretofore made by him and not prosecuted diligently and in good faith. Proof of the ill repute of the demised premises or of the inmates thereof or of those resorting thereto shall constitute presumptive evidence of the unlawful rise of the demised premises, required to be stated in the petition for removal. § 2238. Precept. The judge or justice, to whom a petition is presented, as prescribed in either of the foregoing sections of this title, must thereupon issue a precept, directed to the person or persons designated in the petition, as being in possession of the property, and requiring him or them forthwith to remove from the property, describing it, or to show cause, before him, at a time and place specified in the precept, why possession of the property should not be delivered to the petitioner, or, in the case specified in the last section, to the owner or landlord. The precept must be returnable, not less than three nor more than five days after it is issued; except that, where the proceeding is taken, upon the ground that a tenant continues in possession .of demised premises, after the expiration of his term, without the permission of his landlord, and the application is made on the day of the expiration of the lease, or on the next day thereafter, the precept may, in the discretion of the judge or justice, be made returnable on the day on which it is issued, at any time after twelve o'clock, noon, and before six o'clock in the afternoon. § 2239. Id.; in Nenr-York city. In the city of New- York, where the application is made to a district court, the petition must be filed with, and the precept must be issued by, the clerk of the court; and the precept must be made returnable before the court, at the place designated, SUMMARY PEOCEEDlNGS. 437 pursuant to law, for holding the court; and all subsequent proceedings in the cause must be had at that place, except as otherwise prescribed in section 2246 of this act. If, upon the return of the precept, or upon an adjourned day, the justice is unable, by reason of absence from the court room or sickness, to hear the cause, or it is shown by affidavit that he is for any person disqualified to sit in the cause, or is a necessary and material witness for either party, a justice of any other district court of the city may act in his place at the same court room. § 2240. [Am'd, 1913.] Id.; how served. The precept must be served as follows: 1. By delivering, to the person to whom it is directed, or, if it is directed to a cor- poration, to an officer of the corporation, upon whom a summons, issued out of the supreme court, in an action against the corporation, might be served, a copy of the precept, together with a copy of the petition, and at the same time showing him the original precept. 2. If the person, to whom the precept is directed, resides in the city or town in which the property is situated, but is absent from his dwelling-house, service may be made by delivering a copy thereof, together with a copy of the petition, at his dwelling- house, to a person of suitable age and discretion, who resides there; or, if no such person can, with reasonable diligence, be found there, upon whom to make service, then by delivering a copy of the precept and petition, at the property sought to be recovered, either to some person of suitable age and discretion residing there, or if no such person can be found there, to any person of suitable age and discretion employed there. 3. Where service cannot, with reasonable diligence, be made, as prescribed in either of the foregoing subdivisions of this section, by affixing a copy of the precept and' petition upon a conspicuous part of the property. If the precept is returnable on the day on which it is issued, it must be served at least two hours before the hour at which it is returnable; in every other case, it must be served at least two days before the day on which it is returnable. § 2241. Duty of person to -whom copy of preoept is delivered. A person, to whom a copy of a precept, directed to another is delivered, as prescribed in this title, must, without any avoidable delay, deliver it to the person to whom it is directed, if he can be found within the same town or city ; or, if he cannot be so found, to his agent therein; and if neither can be so found, after the exercise of reasonable diligence, before the time when the precept is returnable, to the judge or justice who issued the same, at the time of the return thereof, with a written statement indorsed thereupon, that he has been unable, after the exercise of reasonble diligence, to find the person to whom the precept is directed, or his agent, within the town or city. A person, who wilfully violates any provision of this section, is guilty of a misdemeanor; and if he is a tenant upon the property, forfeits to his landlord the value of three years' rent of the premises occupied by him. A copy of this section must be indorsed upon each copy of a precept, served otherwise than personally upon the person to whom it is directed. § 2242. When precept to be served on landlord of bawdy-house, etc. Where the case is within section 2237 of this act, the precept must be directed to and served upon the owner or landlord, or his agent, and also upon the tenant or occupant of the property. Either or both of them may, upon the return day, appear and show cause why the tenant or occupant should not be removed from the property. § 2243. Proof of service of precept. At the time when the precept is returnable, the petitioner must, unless the adverse party appears, make due proof of the service thereof, showing the time, and the place 438 CODE OF CIVIL PEOCEDUEE. and manner of service; and, unless service was made personally npon the adverse party, or by affixing a copy of the precept, the name of the person to whom a copy of the precept was delivered, if his name can be ascertained with reasonable diligence. Where service is made by a sheriff, constable, or marshal, it may be proved by his certificate, stating the facts. € 2244. [Am'd, 1882, 1893, 1919.] Answer. At the time when the precept is returnable without waiting as prescribed in an action before a justice of the peace, or in a district court in the city of New York, the person to whom it is directed or his landlord, or any person in possession or claiming possession of the premises, or a part thereof, may answer, orally or in writing, tienying generally the allegations, or specifically any material allegation of the petition, or setting forth a statement of any new matter constituting a legal or equitable defence, or counterclaim. Such defence or counterclaim may be set up and established in like manner as though the claim for rent in such proceeding was the subject of an action. If such answer be oral the substance thereof shall be endorsed upon the petition. [See ante, p. 340.] § 2245. Issues upon forcible entry or detailer. Where the application is founded upon an allegation of forcible entry or forcible holding out, the petitioner must allege and prove that he was peaceably in actual possession of the property, at the time of a forcible entry, or in constructive possession, at the time of a forcible holding out; and the adverse party must either deny the forcible entry, or the forcible holding out, or allege, in his defence, that he, or his ancestor, or those whose interest he claims, had been in quiet possession of the prop- erty, for three years together next before the alleged forcible entry or detainer; and that his interest is not ended or determined, at the time of the trial. § 2246. In N. Y. district court, cause may be transferred to anotber court for trial. In a district court of the city of New York, at the time of joining issue, the justice sitting in the cause may, in his discretion, upon motion of either party, or, if no justice is present, the clerk may, by consent of both parties, make an order transferring the cause for trial, to a district court of an adjoining district, which thtreupon has the same jurisdiction and power at its own court house, as if the property wae situate within its district. § 2247. [Am'd, 1881 and 1882.] Trial. The issues joined by the petition and answer must be tried by the judge or justice, unless either party to such proceedings shall, at the time designated in such precept for showing cause, demand a jury and at the time of such demand pay to such judge or justice the necessary costs and expenses of obtaining such jury. If a juiy be demanded and such costs and expenses be paid, the judge or justice with whom such petition shall be filed shall nominate twelve reputable persons qualified to serve as jurors in courts of record, and shall issue his precept directed to the sheriff or one of the constables of the county, or any constable or marshal of the city or town, commanding him to summons the persons so nominated to appear before such judge or justice at such time or place as he shall therein appoint, not more than three days from the date thereof, for the purpose of trying the said matters in difference. Six of the persons so summoned shall be drawn in like manner as jurors in justices' courts, and shall be sworn by such judge or justice well and truly to hear, try and determine the matter in difference between the parties. After hearing the allegations and proofs of the parties, the said jury shall be kept together until they agree on their verdict. SUMMAEY PKQCEEDINGS. 439 by the sheriff or one of his deputies, or a constable, or by some proper person appointed by the judge or justice for that purpose, who shall be sworn to keep such jury as is usual in like cases of courts of record. If such jury cannot agree after being kept together for such time as such judge shall deem reasonable, he may discharge them and nominate a new jury, and issue a new precept in manner aforesaid. [See ante, p. 340.] § 2248. Adjournment. At the time when issue is joined, the judge or justice may, in his discretion, at the request of either party, and upon proof to his satisfaction, by affidavit or orally, that an adjournment is necessary, to enable the applicant to procure his necessary witnesses, or by consent of all the parties who appear, adjourn the trial of the issue, but not more than ten days; except by consent of all parties. § 2249. Final order upon trial. If sufficient cause is not shown upon the return of the precept; or if the verdict of the jury, or the decision of the judge or justice, upon a trial without a, jury, is in favor of the petitioner; the judge or justice must make a final order, awarding to the petitioner the delivery of the possession of the property; except that, where the case is within section 2237 of this act, the final order must direct the removal of the occupant. In either case, the final order must award to the petitioner the costs of the special proceeding. If the verdict or decision is in favor of the person answering, the judge or justice must make a final order accordingly, and awarding to him the costs of the special proceeding. [See ante, pp. 340, 341.] § 2250. [Am'd, 1882.] Amount of costs; how collected. Costs, when allowed, and the fees of officers, except where a fee is specially given in chapter twenty-one of this act, must be at the rate allowed by law in an action in a justice's court, and are limited in like manner; unless the application is founded upon an allegation of forcible entry or forcible holding out; in which case, the judge or justice may award to the successful party a fixed sum as costs, not exceeding fifty dollars, in addition to his disbursements. If the final order is made by a county judge, or a special county judge, or by a mayor or recorder, an execution to collect the costs may be issued thereupon as if it was a judgment of a justice of the peace of the same city or county; and for that purpose the officer takes the place of a justice of the peace. In every other case an execution may be issued to collect the costs awarded thereby as if the final order was a judgment, rendered in the court, of which the judge or justice is the presiding officer. § 2251. [Am'd, 1882.] Warrant to dispossess defendant. Where the final order is in favor of the petitioner, the judge or justice must there- upon issue a warrant, under his hand, directed to the sheriff of the county, or to any constable or marshal of the city or town, in which the property, or a portion thereof, is situated, or if it is not situated in a city, to any constable of any town in the county, describing the property, and commanding the officer to remove all persons therefrom, and also, except where the case is within section 2237 of this act, to put the petitioner into the full possession thereof. § 2252. Execution of ivarrant. The officer, to whom the warrant is directed and delivered, must execute it, according to the command thereof, between the hours of sunrise and sunset. 440 CODE OF CIVIL PEOCEDUKE. § 2253. When nrarrant cancels lease; exception. The issuing of a warrant for the removal of a tenant from demised premises, cancels the agreement for the use of the premises, if any, under which the person removed held them; and annuls accordingly the relation of landlord and tenant, except that it does not prevent a landlord from recovering, by action, any sum of money, which was, at the time the precept was issued, payable by the terms of the agreement, as rent for the premises; or the reasonable value of the use and occupation thereof, to the time when the warrant was issued, for any period of time, with respect to which the agreement does not make any special provision for payment of rent. § 2254. [Am'd, 1885.] Warrant; when and how stayed. The party, against whom a final order made, requiring the delivery of possession to the petitioner, may, at any time before a warrant is issued, stay the issuing thereof; and also stay an execution to collect the costs, as follows: 1. Where the final order establishes that a lessee or tenant holds over, after a default in the payment of rent, or of taxes or assessments, he may effect a stay, by payment of the rent due, or of such taxes or assessments, and interest and penalty, if any thereon due, and the costs of the special proceeding; or by delivering to the judge or justice, or the clerk of the court, his undertaking to the petitioner, in such sum and with such sureties as the judge or justice approves, to the effect that he will pay the rent, or such taxes or assessments, and interest and penalty and costs, within ten days, at the expiration of which time a warrant may issue, unless he produces to the judge or justice satisfactory evidence of the payment. 2. Where the final order establishes that a lessee or tenant has taken the benefit of an insolvent act, has been adjudicated a bankrupt, he may effect a stay by paying the costs of the special proceeding, and by delivering to the judge or justice, or the clerk of the court, his undertaking to the petitioner, in such a sum and with such sureties as the judge or justice approves, to the effect, that he will pay the rent of the premises, as it has become, or thereafter becomes due. 3. Where the final order establishes that the person against whom it is made, continues in possession of real property, which has been sold by virtue of an execution against his property, he may effect a stay, by paying the costs of the special proceeding, and delivering to the judge or justice, or the clerk of the court, an affidavit, that he claims the possession of the property, by virtue of a right or title, acquired after the sale, or as guardai or trustee for another; together with his undertaking to the petitioner, in such a sum and with such sureties as the judge or justice approves to the effect, that he will pay any costs and damages, which may be recovered against him, in an action of ejectment to recover the property, brought against him by the petitioner within six months thereafter; and that he will not commit any waste upon or injury to the property, during his occupation thereof. § 2255. Undertaking; how disposed of. Where an undertaking is given, in a case specified in subdivision first of the last section, the judge or justice must deliver it to the person against whom the final order was made, upon his producing the evidence of payment, mentioned in that subdivision. If he does not produce such evidence within ten days, the judge or justice must deliver it to the petitioner. Iij every other case specified in the last section, the judge or justice must deliver the undertaking to the petitioner, immediately after his approval thereof. § 2256. Redemption by lessee. Where the special proceeding is founded upon an allegation that a lessee holds over, after a default in the payment of rent, and the unexpired term of the lease, under which the premises are held, exceeds five years, at the time when the warrant is issued ; SUMMARY PROCEEDINGS. 441 the lessee, his executor, administrator, or assignee, may, at any time within one year after the execution of the warrant, pay or tender to the petitioner, his heir, executor, administrator, or assignee, or if, within five days before the expiration of the year, he cannot, with reasonable diligence, be found within the city or town, wherein the property, or a portion thereof, is situated, then to the judge or justice who issued the warrant, or his successor in office, all rent in arrear at the time of the payment or tender, with interest thereupon, and the costs and charges incurred by the petitioner. Thereupon the person making the payment or tender, shall be entitled to the possession of the demised premises, under the lease, and may hold and enjoy the same, according to the terms of the original demise, as otherwise prescribed in the next section but one. § 2257. Id.; by creditor of lessee. In a case specified in the last section, a judgment creditor of the lessee, whose judg- ment was docketed in the county, before the precept was issued, or a mortgagee of the lease, whose mortgage was duly recorded, in the county, before the precept was issued, may, at any time before the expiration of one year after the execution of the warrant, unless a redemption has been made as prescribed in the last section, file with the judge or justice who issued the warrant, or with his successor in office, a notice, specifying his interest and the sum due to him; describing the premises; and stating that it is his intention to redeem as prescribed in this section. If a redemption is not made by the lessee, his executor, administrator, or assignee, within a year after the execution of the warrant, the person so filing a notice, or, if two or more persons have filed such notices, the one who holds the first lien, may, at any time before two o'clock of the day, not a Sunday or a public holiday, next succeeding the last day of the year, redeem for his own benefit, in like manner as the lessee, his executor, administrator, or assignee might have so redeemed. Where two or more judgment creditors or mort- gagees have filed such notices, the holder of the second lien may so redeem, at any time before two o'clock of the day, not a Sunday or a public holiday, next succeeding that in which the holder of the first lien might have redeemed; and the holder of the third and each subsequent lien, may redeem, in like manner, at any time before two o'clock of the day, not a Sunday or a public holiday, next succeeding that in which his prede- cessor might have redeemed. But a second or subsequent redemption is not valid, unless the person redeeming pays or tenders to each of his predecessors who has redeemed, the sum paid by him to redeem, and also the sum due upon his judgment or mortgage; or deposits those sums with the judge or justice, for the benefit of his predecessor or predecessors. § 2258. The last two sections qualified. Where a redemption is made, as prescribed in either of the last two sections, the rights of the person redeeming are subject to a lease, if any, executed by the petitioner, since the warrant was issued, so far that the new lessee, his assigns, undertenants, or other representatives, may, upon complying with the terms of the lease, hold the premises so leased until twelve o'clock, noon, on the first day of May, next succeeding the redemption. And, in all other respects, the person so redeeming, his assigns and representatives, succeed to all the rights and liabilities of the petitioner, under such a lease. § 2259. Order to be made thereupon; liability of person redeeming. The person redeeming, as prescribed in the last three sections, or the owner of the property so redeemed, may present to the judge or justice who issued the warrant, or to his successor in office, a petition, duly verified, setting forth the facts of the redemption, and praying for an order, establishing the rights and liabilities of the parties upon the redemption. Whereupon the judge or justice must make an order 442 CODE OF CIVIL PKOCEDUEE. requiring the other party to the redemption to show cause before him, at a time and place therein specified, why the prayer of the petition should not be granted. The order to show cause must be made returnable, not less than two nor more than ten days, after it is granted; and it must be served at least two days before it is return- able. Upon the return thereof, the judge or justice must hear the allegations and proofs of the parties, and must make such a final order as justice requires. The costs and expenses must be paid by the peitioner. The final order, or a certified copy thereof, may be recorded in like manner as a deed. A person, other than the lessee, who redeems as prescribed in the last three sections, succeeds to all the duties and liabilities of the lessee, accruing after the redemption, as if he was named as lessee in the lease. § 2260. Appeal. An appeal may be taken from a final order, made as prescribed in this title, to the same court, within the same time, and in the same manner, as where an appeal is taken from a judgment rendered in the court, of which the judge or justice is the presiding officer, and with like effect; except as otherwise prescribed in the next two sections. § 2261. [Am'd, 1895.] EiEect of appeal limited in certain, cases. The issuing or execution of a warrant can not be stayed by such an appeal, or by the giving of an undertaking thereupon, otherwise than as prescribed in the next section. An appeal can not be taken to the court of appeals, from a final determination of the appellate division of the supreme court, upon such an appeal, unless the latter court, by an order, made at the term of the appellate division where the final order is made, or the next term thereafter, allows it to be taken. § 2262. [Am'd, 1895.] Warrants; how stayed on appeal. Where an appeal is taken from a final order, awarding delivery of possession to the petitioner, which establishes that a lessee or tenant holds over, after a default in pay- ment of rent or from an order of judgment affirming such final order, the issuing and execution of the warrant may be stayed by the order of the county judge, and in the city and county of New York by a justice of the supreme court, upon the appellant's giving the security required to perfect the appeal, and to stay the execution of the order appealed from and also an undertaking to the petitioner in a sum and with sureties approved by the county judge or in the city and county of New York by a justice of the supreme court to the effect that if, upon the appeal, a final determina- tion is rendered against the appellant he will pay all rents accruing or to accrue upon the premises, or if there is no lease thereof the value of the use and occupation of the premises subsequent to the institution of the special proceedings. § 2263. Appellate court may award restitution; action for damages. If the final order is reversed upon the appeal, the appellate court may award restitu- tion to the party injured, with costs; and it may make an order, or issue any other mandate, necessary to carry its determination into effect. The person dispossessed may also maintain an action, to recover the damages which he has sustained by the dis- possession. § 2264. Application of this title; effect of final order. This title does not impair the rights of a landlord, lessor, or tenant, in a case not therein provided for. Where a special statutory provision confers a right to take proceedings, in the manner heretofore prescribed by law, for the summary removal of a person in possession of real property, the proceedings thereunder must be taken SUMMARY PEOCEEDINGS. 443 as prescribed in this title. A final order, made in a special proceeding, taken as pre- scribed in this title, is not a bar to an action of ejectment, to recover the property affected thereby. § 2265. How proceedings under this title to be stayed. Where a petition is presented, as prescribed in this title, the proceedings thereupon before the final order, and if the final order awards delivery of the possession to the petitioner, the issuing or execution of the warrant thereupon, cannot be stayed or sus- pended by any court or judge, except in one of the following methods: 1, By an order made, or an undertaking filed, upon an appeal, in a case and in the manner specially prescribed for that purpose in this title. 2. By an injunction order, granted in an action against the petitioner. Such an injunction shall not he granted before the final order in the special proceeding, except in a case where an injunction would be granted to stay the proceedings, in an action of ejectment, brought by the petitioner, and upon the like terms; or after the final order, except in a, case where an injunction would be granted to stay the execution Of the final judgment in such an action, and upon the like terms. 444 CODE OF CIVIL PEOCEDUEE. THE STATUTE OF LIMITATIONS. [Chapter IV, Titles II and III of the Code of Civil Procedure.] TITLE II. ACTION OTHEK THAN FOK THE KECOVEEY OF REAL PROPERTY. Section 376. When satisfaction of judgment presumed. 377. Effect of return of execution. 378. How presumption raised. 379. Limitation of action to redeem from a mortgage. 380. Other periods of limitation. 381. Within twenty years. 382. Within six years. 383. Within three years. 364. Within two years. 385. Within one year. 386. When cause of action accrues on a current account. 387. Action for penalty, etc., by any person who will sue. 388. Actions not before provided for. 389. Actions by the people subject to the same limitations. 390. Actions against a non-resident, upon a demand barred by the law of his residence. 391. When person liable, etc., dies without the State. 392. Cause of action accruing between the death of a testator or intestate, and the grant of letters. 393. No limitation of action on bank notes, etc. 394. Action against directors, etc., of banks. 395. Acknowledgment of new promise must be in writing. 396. Exceptions, as to persons under disabilities. 397. Defence or counterclaim. § 376. [Am'd, 1894.] 'When satisfaction of judgment presumed. A final judgment or decree for a, sum of money, or directing the payment of » eum of money, heretofore rendered in a surrogate's court of the State, or heretofore or hereafter rendered, in a court of record within the United States or elsewhere, or here- after docketed pursuant to the provisions of section thirty hundred and seventeen of this act, is presumed to be paid and satisfied, after the expiration of twenty years from the time, when the party recovering it was first entitled to a mandate to enforce it. This presumption is conclusive, except as against a person, who, within twenty years from that time, makes a payment or aclcnowledges an indebtedness of some part of the amount recovered by the judgment or decree, or his heir or personal representa- tive, or a person whom he otherwise represents. Such an acknowledgment must be in writing, and signed by the person to be charged thereby. § 377. Effect of return of execution. If the proof of payment, under the last section consists of the return of an execution partly satisfied, the adverse party may show, in full avoidance of the effect thereof, STATUTE OF LIMITATIOXS. 445 that the alleged partial satisfaction did not proceed from the payment made, or a sale of property claimed, by him or by a person whom he represents. § 378. How presumption raised. A person may avail himself of the presumption created by the last section but one, under an allegation that the action was not commenced, or that the proceeding was not taken, within the time therein limited. § 379. [Am'd, 1919.] Limitation of action to redeem from a mortgage. An action to redeem real property from a mortgage, with or without an account of rents and profits, may be maintained by the mortgagor, or those claiming under him, against the mortgagee in possession, or those claiming under him, unless he or they have continuously maintained possession of the mortgaged premises, for twenty years after the breach of a condition of the mortgage, or the non-fulfilment of a covenant therein contained. § 380. Other periods of limitation. The following actions must be commenced within the following periods, after the cause of action has accrued. § 381. [Am'd, 1877.] Within twenty years. Within twenty years : An action upon a sealed instrument. But where the action is brought for breach of a covenant of seizin, or against in- cumbrances, the cause of action is, for the purposes of this section only, deemed to have accrued upon an eviction, and not before. § 382. [Am'd, 1877, chs. 416 and 422.] AVithin six years. Within six years : 1. An action upon a contract obligation or liability express or implied; except a judgment or sealed instrument. 2. An action to recover upon a liability created by statute; except a penalty or for- feiture. 3. An action to recover damages for an injury to property, or a personal injury; except in a case where a different period is expressly prescribed in this chapter. (See § 383, subd. 5; § 384, subd. 1.) 4. An action to recover a chattel. 5. An action to procure a judgment, other than for a sum of money, on the ground of fraud, in a case which, on the thirty-first day of December, 1846, was cognizable by the court of chancery. The cause of action, in such a, case, is not deemed to have accrued, until the discovery, by the plaintiff, or the person under whom he claims, of the facts constituting the fraud. 6. An action to establish a will. Where the will has been lost, concealed, or destroyed, the cause of action is not deemed to have accrued, until the discovery, by the plaintiff, or the person under whom he claims, of the facts upon which its validity depends. 7. [Am'd, 1894.] An action upon a judgment or decree, rendered in a court not of record, except where a transcript shall be filed, pursuant to section thirty hundred and seventeen of this act, and, also, except a decree heretofore rendered in a surrogate's court of the State. The cause of action, in such a case, is deemed to have accrued when final judgment is rendered. 446 CODE OF CIVIL PEOCEDUEE. § 383. [Am'd, 1877.] Within three years. Within three years : 1. An action against a sheriff, coroner, constable, or other oificer, for the non-payment of money collected upon an execution. 2. An action against a constable upon any other liability incurred by him, by doing S.U act in his official capacity, or by the omission of an official duty; except an escape.. 3. An action upon a statute, for a penalty or forfeiture, where the action is given to the person aggrieved, or to that person and the people of the .State, except where the- statute imposing it prescribes a different limitation. 4. An action against an executor, . administrator, or receiver, or against the trustee of an insolvent debtor, appointed, as preseibed by law, in a special proceeding instituted in a court or before a judge, brought to recover a chattel, or damages for taking, detain- ing, or injuring personal property, by the defendant, or the person whom he represents. 5. An action to recover damages for a personal injury, resulting from negligence. § 384. [Am'd, 1896, 1900.] Within two years. Within two years : 1. An action to recover damages for libel, slander, assault, battery, seduction, crimi- nal conversation, false imprisonment, malicious prosecution or malpractice. 2. An action upon a, statute for a forfeiture or penalty to the people of the State. g 385. Within one year. Within one year : 1. An action against a sheriff or coroner, upon liability incurred by him, by doing- an act in his official capacity, or by the omisson of an official duty, except the non- payment of money collected upon an execution. 2. An action against any other officer, for the escape of a prisoner, arrested or im- prisoned by virtue of a civil mandate. § 386. When cause of action accrues on a current account. In an action brought to recover a balance due upon a mutual, open, and current account, where there have been reciprocal demands between the parties, the cause of action is deemed to have accrued from the time of the last item, proved in the account on either side. § 387. Action for penalty, etc.; by any person who will sue. An action upon a statute for a penalty or forfeiture, given wholly or partly to any person who will prosecute for the same, must be commenced within one year after the commission of the offence; and if the action is not commenced within the year by a private person, it may be commenced within two years thereafter, in behalf of the people of the State, by the attorney-general, or the district-attorney of the county where the offence was committed. § 388. Actions not before provided for. An action, the limitation of which is not specially prescribed in this or the last title, must be commenced within ten years after the cause of action accrues. § 389. Actions by the people subject to the same limitations. The limitations, prescribed in this title, apply alike to actions brought in the nam© of the people of the State, or for their benefit, and to actions by private persons. STATUTE OF LIMITATION'S. 447 § 390. [Am'd, 1916.] Action against a nonresident, upon a demand barred by the law of his residence. Where a cause of action, which does not involve the title to or possession of real property within the State, accrues against a person, who is not then a resident of the State, an action cannot be brought thereon in a court of the State, against him or his personal representative, after the expiration of the time, limited, by the laws of his residence, for bringing a like action, provided that if the limitation of the time fixed by the laws of his residence for bringing such action be less than the time fixed by the laws of this State for a like action, the limitation fixed by the laws of this State shall apply. This section shall not apply to a case in which a person is entitled, when this section as amended takes effect, to commence such action, where he commences the same before the expiration of ^ix months after this section as amended takes effect; in which case the provisions of law applicable thereto immediately before this section as amended takes effect shall continue to be so applicable, notwithstanding the repeal thereof. § 390a. [Added, 1902.] Iiimitation of tiaie to enforce h cause of action arising in another state. Where a cause of action arises outside of this State, an action cannot be brought, in a court of this State, to enforce said cause of action, after the expiration of the time limited by the laws of the state or country where the cause of action arose, for bring- ing an action upon said cause of action, except where the cause of action originally accrued in favor of a resident of this State. Nothing in this act contained shall affect any pending action or proceeding. § 391. [Am'd, 1877.] 'When person liable, etc., dies without the state. If a person, against whom a cause of action exists, dies without the State, the time which elapses between his death, and the expiration of eighteen months after the issuing, within the State, of letters testamentary or letters of administration, is not a part of the time limited for the commencement of an action therefor, against his executor or administrator. § 392. [Am'd, 1877.] Cause of action accruing between the death of a testator or intestate, and the grant of letters. For the purpose of computing the time, within which an action must be commenced in a court of the State, by an executor or administrator, to recover personal property, taken after the death of a testator or intestate, and before the issuing of letters testa- raetary or letters of administration; or to recover damages for taking, detaining, or injuring personal property within the same period ; the letters are deemed to have been issued, within six years after the death of the testator or intestate. But where an action is barred by this section, any of the next of kin, legatees, or creditors, who, at the time of the transaction upon which it might have been founded, was within the age of twenty-one years, or insane, or imprisoned on a criminal charge may, within five years after the cessation of such a disability, maintain an action to recover damages by reason thereof; in which he may recover such sum, or the value of such property, as he would have received upon the final distribution of the estate, if an action had been seasonably commenced by the executor or administrator. § 393. No limitation of action on bank notes, etc. This chapter does not affect an action to enforce the payment of a bill, note, or other evidence of debt issued by a moneyed corporation, or issued or put in circulation as money. 44S CODE OF CIVIL PEOCEDURE. § 394. [Am'd, 1877, 1897.] Action against directors, etc., of banks. This chapter does not affect an action against a director or stockholder of a moneyed corporation, or banking association, to recover a penalty or forfeiture imposed, or to enforce a liability created by the common law or by statute; but such an action must be brought within three years after the cause of action has accrued. § 395. Acknowledgment or nevr promise must be in writing. An acknowledgment or promise contained in writing, signed by the party to be charged thereby, is the only competent evidence of a new or continuing contract, whereby to take a case out of the operation of this title. But this section does not alter the effect of a payment of principal or interest. § 396. Exceptions, as to persons under disabilities. If a person, entitled to maintain an action specified in this title, except for a penalty or forfeiture, or against a sheriff or other officer for an escape, is, at the time when the cause of action accrues, either : 1. Within the age of twenty-one years; or, 2. Insane; or, 3. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offence, for a term less than life; The time of such disability is not a part of the time limited in this title for com- mencing an action; except that the time so limited cannot be extended more than five years by any such disability, except infancy; or in any case, more than one year after the disability ceases. § 397. Defence or counterclaim. A cause of action, upon which an action cannot be maintained, as prescribed in this title, cannot be effectually interposed as a defence or counterclaim. GENEKAL PKOVISIONS. 449 TITLE III. GENEEAL PBOVISIONS. Section 398. When action deemed to be commenced. 399. Attempt to commence action in a court of record. 400. Id.; in a court not of record. 401. Exception, when defendant is without the state. 402. Id.; when a person entitled, etc., dies before limitation expires. 403. Id.; when a person liable, etc., dies within the state. 404. In suits by aliens, time of disability in case of war to be deducted. 405. Provision where judgment has been reversed. 40e. Stay by injunction, etc., to be deducted. 407. Certain actions by a principal, for misconduct of an agent, etc. 408. Disability must exist when right accrues. 409. If several disabilities, no limitation until all removed. 410. Provision when the action cannot be maintained without a demand. 411. Provision in case of submission to arbitration. 412. Provision when action is discontinued, etc., after answer. 413. How objection taken, under this chapter. 414. Cases to which this chapter applies. 415. Mode of computing periods of limitation. § 398. [Am'd, 1877.] When action deemed to be commenced. An action is commenced against a defendant, within the meaning of any provision of this act, which limits the time for commencing an action, when the summons is served on him; or on a co-defendant who is a joint contractor, or otherwise united in interest with him. § 399. Attempt to commence action in a court of record. An attempt to commence an action, in a court of record, is equivalent to the com- mencement thereof against each defendant, within the meaning of each provision of this act, which limits the time for commencing an action, when the summons is delivered, with the intent that it shall be actually served, to the sheriff, or, where the sheriff is a party, to a coroner of the county, in which that defendant, or one of two or more co- defendants, who are joint contractrs, or otherwise united in interest with him, resides or last resided; or, if the defendant is a corporation, to a like ofBcer of the county, in which it is established by law, or wherein its general business is or was last trans- acted, or wherein it keeps, or last kept, an office for the transaction of business. But in order to entitle a plaintiff to the benefit of this section, the delivery of the summons to an officer must be followed, within sixty days after the expiration of the time limited for the actual commencement of the action, by personal service thereof upon the defend- ant sought to be charged, or by the first publication of the summons, as against that defendant, pursuant to an order for service upon him in that manner. § 400. Id.; in a court not of record. The last section, excluding the provision requiring a. publication or service of the summons within sixty days, applies to an attempt to commence an action, in a court not of record, where the summons is delivered to an officer authorized to serve the 29 450 CODE OF CIVIL PEOCEDURE. same, within tlie city or town, wherein the person resides or the corporation is located, as specified in that section; provided that actual service thereof is made with due diligence. § 401. [Ain'd, 1888, 1896.] Exception, when defendant is without the State. If, when the cause of action accrues against a person, who is without the state, the action may be commenced within the time limited therefor, after his return into the state. If, after a cause of action has accrued against a person, he departs from the state, and remains continuously absent therefrom for the space of one year or more, or if, without the knowledge of the person entitled to maintain the action, he resides within the state under a false name, the time of his absence or of such residence within the state under such false name is not a part of the time, limited for the commence- ment of the action. But this section does not apply, while a designation, made as prescribed in section four hundred and thirty, or in subdivision second of section four hundred and thirty-two, of this act, remains in force. § 402. Id.; when a person entitled, etc., dies before limitation expires. If a person, entitled to maintain an action, dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced by his representative, after the expiration of that time, and within one year after his death. § 403. [Am'd, 1891, 1896.] Id.; when a person liable, dies within the State. The term of eighteen months after the death, within this State, of a person against whom a cause of action exists, or of a person who shall have died witliin sixty days after an attempt shall have been made to commence an action against him pursuant to the provisions of section three hundred and ninety-nine of this act, is not a part of the time limited for the commencement of an action against his executor or administrator. If letters testamentary or letters of administration uf)on his estate are not issued, within this state, at least six months before the expiration of the time to bring the action, as extended by the foregoing provision of this section, the term of one year after such letters are issued is not a part of the time limited for the commencement of such an action. The time during which an action is pending in a court of record between the person or persons and an executor or administrator, wherein the person or persons claim to recover from the executor qr administrator any money or other prop- erty claimed by said executor or administrator to belong to the estate of the decedent, or is embraced in the inventory of the assets of said dcedent's estate, is not a part of the time limited for the commencement of an action against an executor or adminis- trator, for a claim against the estate of the decedent until the final determination of the action is brought to recover said or other property claimed by said executor or administrator to belong to said decedent's estate: 1. Where the claim against the estate of the decedent is liquidated by the recovery of a judgment thereon against an executor or administrator in an action in a court of rcord or under section twenty-seven hundred and eighteen of this code, after trial on the merits. 2. Where a legatee brings an action, or institutes a proceeding, against an executol or administrator with the will annexed, to enforce the payment of a legacy. § 404. In suits by aliens, time of disability in case of war to be deducted. Where a person is disabled to sue in the courts of the state, by reason of either party being an alien subject or citizen of a country, at war with the United States, GENERAL PROVISIONS. 451 the time of the continuance of the disability is not a part of the time limited for the commencement of the action. § 405. ProTision Trhere judgment has been reversed. If an action is commenced within the time limited therefor, and a judgment therein is reversed on appeal, without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits; the plaintiff, or, if he dies, and the cause of action survives, his representative, may commence a new action for the same cause, after the expiration of the time so limited, and within one year after such a reversal or termination. § 406. Stay by injunction, etc., to be deducted. Where the commencement of an action has been stayed by injunction, or other order of a court or judge, or by statutory prohibition, the time of the continuance of the stay is not a part of the time, limited for the commencement of the action. § 407. Certain actions by u principal, for misconduct of an agent, etc. Where an injury results from the act or omission of a deputy or agent, the time, within which an action to recover damages by reason thereof, must be commenced by the principal, against the deputy or agent, must be computed from the time, when a judgment against the -principal, for the act or omission, is first recovered by the aggrieved person; and a subsequent reversal or setting aside of the judgment does not extend the time. § 408. Disability must exist -when right accrues. A person . cannot avail himself of a disability, unless it existed when his right of action or of entry accrued. § 409. If several disabilities, no limitation until all removed. Where two or more disabilities co-exist, when the right of action or of entry accrues, the limitation does not attach, until all are removed. g 410. Provision irhen the action cannot be maintained ivithout a. demand. Where a right exists, but a demand is necessary to entitle a person to maintain an action, the time, within which the action must be commenced, must be computed from the time, when the right to make the demand is complete; except in one of the follow- ing cases: 1. Where the right grows out of the receipt or detention of money or property, by an agent, trustee, attorney, or other person acting in a fiduciary capacity, the time must be computed from the time, when the person, having the right to make the de- mand, has actual knowledge of the facts, upon which the right depends. 2. Where there was a deposit of money, not to be repaid at a fixed time, but only upon a special demand, or a delivery of personal property, not to be returned, specifi- cally or in kind, at a fixed time or upon a fixed contingency, the time must be com- puted from the demand. § 411. Provision in case of submission to arbitration. Where the persons, who might be adverse parties in an action, have entered into a written agreement to submit to arbitration, or to refer the cause of action, or a con- troversy in which it might be available, or have entered into a written submission thereof to arbitrators; and before an award, or other determination thereupon, the agreement or submission is revoked, so as to render it ineffectual, by the death of either 452 CODE OF CIVIL PKOCEDURE. party thereto, or by the act of the person against whom the action might have been brought; or the execution thereof, or the remedy upon an award or other determination thereunder, is stayed by injunction, or other order procured by him from a competent court or judge; the time which has elapsed, between the entering into the written sub- mission or agreement, and the revocation thereof, or at tlie expiration of the stay, is not a part of the time, limited for the commencement of the action. § 412. FroTision when action is discontinued, etc., after ansxrer. Where the defendant in an action has interposed an answer, in support of which he would be entitled to reply, at the trial, upon a defence or counterclaim then existing in his favor, the remedy upon which at the time of the commencement of the action, was not barred by the provisions of this chapter; and the complaint is dismissed, or the action is discontinued, or abates in consequence of the plaintiff's death; the time which intervened, between the commencement and the termination of the action, is not a part of the time, limited for the commencement of an action by the defendant, to recover for the cause of action so interposed as a defence, or to interpose the same defence in another action brought by the same plaintiff, or a person deriving title from or under him. § 413. Hoiv objection taken, under this chapter. The objection, that the action was not commenced within the time limited, can be taken only by answer. The corresponding objection to a defence or counterclaim can be taken only by reply; except where a reply is not required, in order to enable the plaintiff to raise an issue of fact, upon an allegation contained in the answer. § 414. Cases to nrhich this chapter applies. The provisions of this chapter apply, and constitute the only rules of limitation applicable, to a civil action or special proceeding, except in one of the following cases: 1. A case, where a different limitation is specially prescribed by law, or a shorter limitation is prescribed by the written contract of the parties. 2. A cause of action or a defence which accrued before the first day of July, 1848. The statutes then in force govern, with respect to such a cause of action or defence. 3. A case, not included in the last subdivision, in which a person is entitled, when this act takes effect, to commence an action or to institute a special proceeding, or to take any proceeding therein, or to pursue a remedy upon a judgment, where he com- mences, institutes, or otherwise resorts to the same, before the expiration of two years after this act takes effect; in cither of which eases, the provisions of law applicable thereto, immediately before this act takes effect, continue to be so applicable, notwith- standing the repeal thereof. 4. A case where the time to commence an action has expired, when this act takes effect. The word, " action ", contained in this chapter, is to be construed, when it is neces- sary to do so, as including a special proceeding, or any proceeding therein, or in an action. § 415. Mode of computing periods of limitation. The periods of limitation, prescribed by this chapter, except as otherwise specially prescribed therein, must be computed from the time of the accruing of the right to relief by action, special proceeding, defence, or otherwise, as the case requires, to the time when the claim to that relief is actually interposed by the party, as a plaintiff or a defendant, in the particular action or special preceeding. FEES. 453 Fkes. [Chapter XXI, Title V, of the Code of Civil Procedure.] Section 3322. Fees of a justice of the peace. 3823. Constable's fees. 3324. Id.; aflSdavit upon claim for travel fees. 3325. Justice's court, fees upon a commission. 3326. Id.; jurors' fees. 3327. Id.; witnesses' fees. 3328. Id.; fees to be paid before services rendered. 3329. Id. ; by whom fees to be paid. 3330. Certain special provisions excepted from this title. 3331. Provision as to change in fees. 3332. This title applies to civil cases only. § 3322. [Am'd, 1904, 1910.] Fees of a justice of the peace. A justice of the peace is entitled, for the services specified in this section, to the fol- lowing fees: 1. In an action brought before a justice of the peace: For a summons, twenty-five cents For an order of arrest, twenty-five cents. For a warrant of attachment, twenty-five cents. For a requisition in an action for a chattel, twenty-five cents. For a. subpoena, including all the names inserted therein, twenty-five cents. For the acknowledgment of a power of attorney, twenty-five cents. For taking an afiidavit, or administering an oath, ten cents. For drawing an affidavit, application, or notice, required by statute, five cents for each folio. For drawing a bond or an undertaking, twenty-five cents. For hearing an appileation for a commission to examine one or more witnesses, fifty cents. For an order for such commission, and attending, settling, and certifying inter- rogatories, fifty cents. For hearing an application to discharge a defendant from arrest, or to vacate or modify a warrant of attachment, or increase the plaintiff's security thereupon, fifty cents. For an adjournment, except where it is made by the justice upon his own motion, twenty-five cents. For a venire, twenty-five cents. For empanelling and swearing a jury, twenty-five cents. For hearing the plaintiff's evidence, where the defendant does not appear, twenty-five cents. For the trial of a demurrer, twenty-five cents. For the trial of an issue of fact, where the defendant appears, one dollar and fifty cents for each day actually spent in the trial. For receiving and entering the verdict of a jury, twenty-five cents. For entering judgment, twenty-five cents. For filing each paper required by statute to be filed, five cents, For a transcript of a judgment, twenty-five cents. 454 CODE OF CIVIL PKOGEDUKE. For a copy of any paper for which a fee is not expressly prescribed by law, six cents for each folio. For an execution or the renewal of an execution, twenty-five cents. For making a return upon an appeal from a judgment, two dollars. For an order directing an action or a special proceeding to be continued before another justice, twenty-five cents. For service when associated with another justice, in any case where a fee therefor is not expressly prescribed by law, for each day actually spent, two dollars. 2. In a special proceeding, or an action brought before a justice of the peace: For a warrant, in a case where a fee therefor is not expressly prescribed by law, twenty-five cents. For a warrant for the apprehension of a person charged with being the father of a bastard, fifty cents; for indorsing a warrant, issued from another county, twenty-five cents. For services when associated with another justice, in any case where a fee therefor is not expressly prescribed by law, for each day actually spent, two dollars. For a precept or other mandate, whereby a special proceeding is commenced, in a case where a fee therefor is not specially prescribed by law, twenty-five cents. For a view of real property, in a case where it is required by law, fifty cents. For a warrant of attachment to arrest a delinquent juror or witness, twenty-five cents. For drawing, signing, and depositing with the clerk, a minute or record of conviction of such a juror or witness, or any person for contempt, in any case where a fee therefor is not specially prescribed by law, fifty cents. For an execution upon such a conviction before him, twenty-five cents. For drawing, copying and certifying a bond, an undertaking, a recognizance or other written security, and filing the same with the county clerk, or other ofiicer with whom it must be filed, twenty-five cents. For a warrant of commitment for any cause, twenty-five cents. For a subpoena, including all the names inserted therein, twenty-five cents. For a precept to notify a jury, fifty cents. For empanelling and swearing a jury, twenty -five cents; except in proceeding to alter or lay out a highway, in which case he is entitled to two dollars. For hearing the matter, concerning which a jury is called, seventy-five cents for each day actually spent. For receiving and entering the verdict of the jury, and the order, if any, thereupon, twenty-five cents. For any service for which a fee is not expressly allowed by this subdivision, and for which, if rendered in an action before a justice, a fee is allowed by the first subdivision of this section, the fee allowed in such an action for the same service. For taking the deposition of a witness, upon an order made, or commission issued, by a court of record of the State, or a court in another state or a territory, or a foreign country, ten cents for each folio. For making the necessary return and certificate thereto, fifty cents. For taking an affidavit or administering an oath, ten cents. § 3323. Constable's fees. A constable is entitled, for the services specified in this section, to the following fees: 1. In an action brought before a justice of the peace, or in a justice's court of a city. For serving a summons, twenty-five cents. For serving a summons and executing an order of arrest, one dollar. For serving a summons and levying a warrant of attachment, one dollar. FEES. 455 For serving a summons and affidavit, and executing a requisition, in an action for a chattel, one dollar. For serving an order, directing the action to be continued before a justice, other thaii the one before whom it is pending, and for attending before the latter, fifty cents, and fifty cents in addition if he so attends with a person in his custody. For collecting money by virtue of an execution, for every dollar collected, to the amount of fifty dollars, five cents; for every dollar collected over fifty dollars, two and one-half cents. Where a judgment or an execution is settled after a levy, the con- . stable is entitled to poundage upon the sum at which the settlement is made, not exceeding the value of the property levied upon. For each mile necessarily traveled, going and returning, to serve a summons or to serve or execute any other mandate, except a venire, the distance to be computed from the place of abode of the person served, or the place where it is served, to the place where it is returnable, ten cents; but where two or more mandates in one action are served or executed upon one journey, or where a mandate is served upon or executed against two or more persons in one action, he is entitled, in all, to only ten cents for each mile necessarily traveled. For notifying the plaintiff of the execution of an order of arrest, twenty-five cents; and for going to the plaintiff's residence, or, if he is found elsewhere, to the place where he is found, to serve such a notice, for each mile traveled, going and returning, ten cents. For subpoenaing each witness, not exceeding four, twenty-five cents. For notifying the jurors to attend a trial, one dollar and fifty cents. For taking charge of a pury during their deliberations, fifty cents. Where witnesses, not exceeding four, are subpoenaed by any person other than a con- stable, the fee therefor is thirteen cents each. 2. In a special proceeding. For notifying jurors to attend to assess damages, in proceedings relating to highways, two dollars. For notifying jurors to attend in any other case, unless a fee therefor is specially prescribed by law, for each person notified, ten cents; and for each mile actually and necessarily traveled, going from and returning to his place' of residence, ten cents. For serving a precept or other mandate, by which the special proceeding is com- menced, twenty-five cents. For serving a warrant, in any case where a fee therefor is not specially prescribed by law, fifty cents. For serving an order, directing a special proceeding to be continued before a justice other than the one before whom it is pending, and for attending before the latter, with or without a person in his custody, one dollar. For arresting and committing any person, pursuant to process, one dollar. For subpoenaing each witness, not exceeding four, twenty-five cents. For each mile necessarily traveled, going and feturning, to serve or execute a man- date, the distance to be computed from the place where it is served or executed, to the place where it is returnable, unless a different rate of travel fees upon the service or execution thereof is specially prescribed by the statute, ten cents. Where two or more mandates are served or executed in one special proceeding, the limitation upon the amount of travel fees specified in the last preceding subdivision applies. § 3324. Id.; affidavit npon claim for travel fees. A constable, who charges any travelling fees, must show, by affidavit, that the travel was necessary, to perform the service with respect to which it is charged; that no more miles are charged for, than were actually and in good faith traveled for that purpose ; that he had, at the time, no other official or private business upon the route so tra- 456 CODE OF CIVIL PEOCEDURE. veiled; and that the travelling fees are charged upon one mandate only, which must be attached to or described in the affidavit. The justice taxing the fees must be satis- fied that the miles charged for were actually and necessarily traveled, as stated in the affidavit. § 3325. Jnstice's court, fees upon a commission. A party recovering costs in an action before a justice of the peace, in whose behalf a, commission has been issued, and who introduces in evidence a deposition taken there- under, is entitled to recover his actual disbursements thereupon, not exceeding the following sums: commissioners' fees for taking and returning testimony, one dollar; each subpoena issued, or oath administered, by the commissioner, six cents; expense of serving each subpcena, twenty-five cents; each witness's fees for each day's attendance before the commissioner, twenty-five cents; postage for sending and returning the commission and papers annexed thereto, one dollar. § 3326. Id.; jurors' fees. Except as otherwise specially prescribed by law, a person, notified to attend as a juror, is entitled to twenty-five cents for attending and serving upon the trial of an action or the hearing of a special proceeding, before a justice of the peace; and to ten cents for attending to serve, where he is not sworn. § 3327. Id.; witnesses' fees. A witness is entitled to twenty-five cents for each day's actual attendance, before a justice of the peace, in an action or a special proceeding, or before a commissioner appointed by a justice of the peace, or before a justice of the peace taking a deposition to be used in a court, not of record, of another State, or a territory of the United States. § 3328. Id.; fees to be paid before services rendered. A justice of peace, or a constable, juror, or witness, before a justice of the peace, is not obliged to render any service specified in this title, without the previous payment or tender of his fee therefor. § 3329. Id.; by irhom fees to be paid. In an action before a justice of the peace, if any services are rendered for a party, and he neglects to pay the fees allowed therefor by law, the other party may pay those fees, and the amount thereof must be taxed as part of his costs, if he recovers costs. § 3330. Certain special provisions excepted from this title. The allowance of a fee, by this title, does not apply to a case, where special provision is otherwise made by statute for compensation for a particular service. § 3331. Provision as to change in fees. Where an officer has, when this title takes eSeat, commenced the performance of a service, for which a fee is allowed by the statutes heretofore in force, he is entitled to the fee so allowed, for the completion of that service, and he is not entitled to the fee for the same, or a corresponding service, allowed by this title. § 3331a. [Added, 1909.] Presentation of claims by jurors and disposition of unclaimed fees. All jurors including those in a criminal action or special proceeding in a court or before an officer duly summoned and who served as provided for hy the laws of this FEES. 457 state and are entitled to payment therefor, must present their claims to the proper official designated by law for the payment of juror's fees, on or before the thirty-first day of December of the year succeeding or following the year in which such services were rendered and performed, and failure to comply with this provision shall be a forfeiture of the payment for such claims or services thereafter. All notices issued requiring jurors to attend at a term of court or at a meeting of the grand jury, shall have printed thereon the foregoing provision relating to forfeiture of fees. All moneys or jurors' fees forfeited by the provisions of this section shall be transferred and applied to the fund of such county or city, from which they were paid, on or before the first day of March, in each year. § 3332. Tliis title applies to civil cases only. Except as otherwise expressly prescribed therein, this title does not apply to a service rendered in a criminal action or special proceeding, in a court or before an officer. 458 CODE OF CIVIL PKOCEDUEE. MISCELLANEOUS PROVISIONS OF THE CODE OF CIVIL PROCEDURE APPLICABLE TO ACTIONS AND PROCEEDINGS BEFORE JUSTICES OF THE PEACE AND OTHER TRIBUNALS. [Sections refer to the Code of Civil Procedure.] Section 446. Who may be joined as plaintiffs. 44i9. Party in interest to sue. Trustee, etc., may sue alone. 450. When married woman is a party. 454. When persons liable for the same demand may be sued together. 455. Defendant so sued may apply for any relief. 458'. Who may petition for leave to prosecute as a poor person. 459. Contents of petition. 460. When and how leave granted. 461. Not liable for costs and fees. 462. When leave may be annulled. 463. When defendant may petition to defend as a poor person. 464. Contents of petition. 465. Proceedings thereon. 466. Appeal when party prosecutes or defends as a poor person. 467. Costs in favor of petitioner. 468. Right of infant to bring action. 723. Amendments by the court; disregarding immaterial errors, etc. 728. Disregarding defects in affidavits. 729. Certain bonds, etc., when sufficient. 730. Amending defects in bonds, etc. 749. Powers of certain officers, touching securities, etc. 764. Action for a wrong not to abate after verdict, etc, 765. No verdict, etc., can be taken after a party's death. 785. Qualification of last section. 787. Time for application of notice, how computed. 810. Bonds, undertaking, etc., must be acknowledged. 811. Party need not join with his sureties; when one surety is sufficient. 812. Form of bond or undertaking; affidavit of sureties; approval. 813. When several sureties may justify each in a smaller sum. 814. Bonds, etc., to the people or a public officer for the benefit of a suitor. 815. Bonds, etc., not affected by change of parties. 816. Bonds, etc., to be filed. 825. Papers in special proceedings, where to be filed. 836. Publication, where no newspaper, etc., in county. 842. Before whom oaths and affidavits may be taken. 843. Id.; in special cases. 844. Id. ; without the state. 845. General mode of swearing. 846. When kissing the gospels dispensed with. 847. When affirmation to be made. 848. Other modes of swearing. 849. Swearing persons not Christians MISCELLANEOUS PEOVISIONS. 459 Section 850. Court may examine witness. 866. Records not to be removed by virtue of subpcena. 867. Production of books of account. 867a. Subpoena duces tecum relating to hospital records. 868. Books of corporation, how produced. 869. When personal attendance not required by subpoena duces tecum. 1181. Discharge of jury failing to agree. 1211. Judgment to bear interest. 1335. Exception to sureties; justification. 1367. Execution, when issued on filing transcript from justice's court, etc. 1384. Sale on execution, etc.; when and how conducted. 1385. Penalty for taking down or defacing notice of sale 1386. Validity of sale, when not affected by sheriff's default, etc. 1387. Purchases on such sales, by certain officers, prohibited. 1405. Personal property bound by execution. 1409. Title of bona fide purchasers before levy, not affected. 1410. Execution may be levied upon current money. 1411. Levy upon certain evidences of debt. 1412. Interest of bailor in goods pledged may be sold. 1428. Sale of personal property; how made. 1667. Action for cutting, etc., trees. 1668. Id.; when treble damages may be recovered. 1669. Treble damages for forcible entry or detainer. 1775. Complaint in actions by or against corporations. 1776. When proof or corporate existence unnecessary. 1777. Misnomer, when waived. I&IZ. In action against stockholders, misnomer, etc., not avoidable. 1818. Executors who have not qualified, not necessary parties. 1829. Execution on former judgment. 1893. Action by person specially aggrieved. 1894. Action by common informer. 1896. Id. ; service of summons. 1896. Id.; when not barred by a collusive recovery. 1897. Indorsement updn summons. 1898. When part of a penalty may be recovered. 1890. Civil and criminal prosecutions not merged. 1900. Action for suing, etc., in name of another. Made also a misdemeanor. 1901. Treble and other increased damages to be recovered. 1915. Action upon a penal bond. 1917. Action upon lost negotiable paper. 1918. The last section qualified. 1932. Judgment against defendants jointly indebted, when all are not served. 1933. Effect of such judgment. 1934. Execution ; indorsement thereupon. 1935. How collected. 1936. Judgment, how docketed; effect of docketing. 1937. Action to charge defendants not personally summoned. 3268. When defendant may require security for costs. 3272. Order to give security. 3273. Requisites of undertaking. 3274. Notice of exception; id. of justification. 3275. Ju5tificati6n of sureties, allowance of undertaking. 460 CODE OF CIVIL PEOCEDUEE. § 446. Who may be joined as plaintiffs. All persons having an interest in the subject of the action, and in obtaining the judgment demanded, may be joined as plaintiffs, except as otherwise expressly prescribed in this act. § 449. [Am'd, 1877.] Party in interest to sue. Trustee, etc., may sue alone. Every action must be prosecuted in the name of the real party in interest, except that an executor or administrator, a, trustee of an express trust, or a person expressly authorized by statute, may sue, without joining with him the person for whose benefit the action is prosecuted. A person, with whom or in whose name, a contract is made for the benefit of another, is a trustee of an express trust, within the meaning of this section. § 450. [Am'd, 1877, 1879, 1890, 1909.] When married woman is a party. In an action or special proceeding a married woman appears, prosecutes or defends alone or joined with other parties as if she was single. It is not necessary or proper to join her husband with her as a party in any action or special proceeding affecting her separate property. The husband is not a necessary or proper party to an action or special proceeding to recover damages to the person, estate or character of his wife. The husband is not a necessary or proper party to an action or special proceeding to recover damages to the person, estate or character of another on account of the wrongful acts of his wife committed without his instigation. § 454. [Am'd, 1877.] When persons liable for the same demand may be sued together. Two or more persons, severally liable upon the same written instrument, including the parties to a bill of exchange or a promissory note, whether the action is brought upon the instrument, or by a party thereto to recover against other parties liable over to him ; may, all or any of them, be included as defendants in the same action, at the option of the plaintiff. § 455. Defendant so sued may apply for any relief. The joinder of a person, as defendant in an action, with another person, as prescribed in the last section, does not affect his right to any order or other relief, to which he would have been entitled, if he had been separately sued in the action. § 458. [Am'd, 1891.] Who may petition for leave to prosecute as a poor person. A poor person, whether an adult or infant, not being of ability to sue, who alleges that he has a cause of action against another person, may apply by petition to the court in which the action is pending, or in which it is intended to be brought, for leave to prosecute as a poor person, and to have an attorney and counsel assigned to conduct his action. § 459. [Am'd, 1891.] Contents of petition. The petition must state: 1. The nature of the action brought or intended to be brought. 2. That the applicant is not worth one hundred dollars . besides the wearing apparel and furniture necessary for himself and his family, and the subject-matter of the action. It must be verified by the applicant's affidavit, unless the applicant is an infant under the age of fourteen years, and in that case by the afBdavit of his guardian appointed in said action, and supported by a certificate of a counselor at law to the effect that he has examined the ease and is of the opinion that the applicant has a good cause of action. MISCELLANEOUS PEOVISIOitTS. 461 § 460. Wben and botr leave granted. The court to which the petition is presented, if satisfied of the truth of the facts alleged, and that the applicant has a good cause of action, may, by order, admit him to prosecute as a poor person, and assign to him an attorney and counsel to prosecute his action, who must act therein without compensation. § 461. Not liable for costs and fees. A person so admitted, may prosecute his action, without paying fees to any officer; and he shall not be prevented from prosecuting the same, by reason of his being liable for the costs of a former action, brought by him against the same defendant. If judgment is rendered against him, or his complaint is dismissed, costs shall not be awarded against him. § 462. Wben leave may be annulled. If the person ao admitted is guilty of improper conduct in the prosecution of his action, or of wilful or unnecessary delay, the court may, in its discretion, annul the order admitting him to prosecute as a poor person; and he shall thereafter be deprived of all the privileges conferred thereby. § 463. IVhen defendant may petition to defend as a poor person. A defendant in an action involving his right, title, or interest, in or to real or personal property, may petition the court, in which the action is pending, for leave to defend the action as a poor person, and to have an attorney and counsel assigned to conduct his defence. § 464. Contents of petition. The petition must contain the same matters, respecting the ability of the petitioner, required to be contained in a petition for leave to prosecute as a poor person; and it must be supported by a similar certificate, relating to the defence. § 465. Proceedings tbereon. The provisions of this article, relating to the order, to be made upon an application for leave to prosecute as a poor person, and the proceedings subsequent thereto, apply to the order and subsequent proceeding, upon an application for leave to defend as a poor person. § 466. Appeal when party prosecutes or defends as a poor person. Ah order, made as prescribed in this article, does not authorize the petitioner to take or maintain an appeal, as a poor person; but where an appeal is taken by the adverse party, the order is applicable, in favor of the petitioner, as respondent in the appeal. § 467. Costs in favor of petitioner. Where costs are awarded in favor of a person, who had been admitted to prosecute or defend as a poor person, as prescribed in this article, they must be paid over to his attorney, when collected from the adverse party, and distributed among the attorney and counsel assigned to the poor person, as the court directs. § 468. Rigbt of infant to bring action. When an infant has a right of action, he is entitled to maintain an action thereon? and the same shall not be deferred or delayed, on account of his infancy. 462 CODE OF CIVIL PEOCEDURE. § 723. [Am'd, 1877, 1900.] Amendments by the court; disregarding im- material errors, etc. The court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any process, pleading, or other proceeding, by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting an allegation material to the case; or, where the amend- ment does not change substantially the claim or defence, by conforming the pleading or other proceedings to the facts proved. And, in every stage of the action, the court must disregard an error or defect, in the pleadings or other proceedings, which does not affect the substantial rights of the adverse party. When amending a pleading or permitting the service of an amended or supplemental pleading in a case which i? on the general calendar of issues of fact, the court may direct that the case retain the place upon such calendar which it occupied before the amendment or new pleading was allowed, and that the proceedings had upon the amended or supplemental pleadings shall not aflfect the place of the case upon such calendar, or render necessary the service of a new notice of trial. § 728. Disregarding defects in affidavits. The want of a title, or a defect in the title, of an afSdavit, does not impair it, if it intelligibly refers to the action or special proceeding, in which it is made. § 729. Certain bonds, etc., -nrlien sufficient. A bond or undertaking, required by statute to be given by a person, to entitle him to a right or privilege, or to take a proceeding, is sufficient, if it conforms substantially to the form therefor, prescribed by the statute, and does not vary therefrom, to the prejudice of the rights of the party, to whom, or for whose benefit, it is given. § 730. Amending defects in bonds, etc. Where such a bond or undertaking is defective, the court, officer, or body, that would be authorized to receive it, or to entertain a, proceeding in consequence thereof, if it was perfect, may, on the application of the persons who executed it, amend it accord- ingly; and it shall thereupon be valid, from the time of its execution. § 749. [Am'd, 1877.] Pourers of certain officers, touching securities, etc. A county treasurer, or other officer, or a guardian, committee, or other trustee, in whose name is taken a bond, mortgage, or other security, or public stock, representing money, paid into court, in an action; or to whom stock or a security, or an account, deed, voucher, receipt, or other paper, representing or relating to such money, is trans- ferred, delivered, made, or given, pursuant to law, is vested with title for the purposes of the trust, and may bring an action upon or in relation to the same, in his official or representative character. § 764. [Am'd, 1904.] Action for a trrong not to abate after verdict, etc. An action commenced by a father to recover damages for the sediiction of his minor daughter does not abate by his death, but survives to the mother of such daughter, who may recover both actual and exemplary damages therein to the same extent as though the original party plaintiflf had lived. After verdict, report or decision in an action to recover damages for a personal injury, the action does not abate by the death of a party, but the subsequent proceedings are the same as in a case where the cause of action survives. And in ease said verdict, report or decision is reversed upon questions of law only, said action does not abate by the death of the party against whom the same was rendered. MISCELLANEOUS PROVISIONS. 463 § 765. No verdict, etc., can be taken after a party's death. This title does not authorize the entry of a judgment against a party, who dies before a verdict, report, or decision is actually rendered against him. In that case, the verdict, report, or decision is absolutely void. g 784. When time cannot he extended. A court, or a judge, is not authorized to extend the time, fixed by law, within which to commence an action; or to take an appeal; or to apply to continue an action, where a party thereto has died, or has incurred a disability; or the time fixed by the court, within which a supplemental complaint must be made, in order to continue an action ; or an action is to abate, unless it is continued by the proper parties. A court or a judge, cannot allow either of those acts to be done, after the expiration of the time fixed by law, or by the order, as the case may be, for doing it; except in a case specified in the next section. § 785. [Am'd, 1877.] Qualification of last section. Where a party entitled to appeal from a judgment or order, or to move to set aside 3 final judgment for error in fact, dies either before or after this chapter taken effect, and before the expiration of the time within which the appeal may be taken, or the motion made, the court may allow the appeal to be taken, or the motion to be made, by the heir, devisee, or personal representative of the decedent, at any time within four months after his death. § 787. Time for publication of notice; hoir computed. The period of publication of a legal notice, in an action or special proceeding, brought in a, court, either of record or not of record, or before a judge of such a court, must be computed so as to exclude the first day of publication, and include the day, on which the act or event, of which notice is given, is to happen, or which completes the full period of publication. § 810. [Am'd, 1877.] Bonds, undertakings, etc., must be acknoDFledged. A bond or undertaking, given in an action or special proceeding, as prescribed in this act, must be acknowledged or proved, and certified, in like manner as a deed to be recorded. § 811. [Am'd, 1895.] Party need not join with his sureties; xrhen one surety is sufficient. Where a provision of this act requires a bond or undertaking, with sureties, to be given by, or in behalf of, a party or other person, he need not join with the sureties in the execution thereof, unless the provision requires him to execute the same; and the execution thereof by one surety is sufficient, although the word " sureties," is used, unless the' provisions expressly requires two or more sureties; and the execution of any such bond or undertaking by any fidelity or surety company authorized by the laws of this State to transact business, shall be equivalent to the execution of said bond or undertaking by two sureties, and such company, if excepted to, shall justify through its officers or attorney in the manner required by law of fidelity and surety companies. Any such company may execute any such bond or undertaking as surety by the hand of its officers, or attorney, duly authorized thereto, by resolution of its board of directors, a certified copy of which resolution, under the seal of said company, ehall be filed with each bond or undertaking. 464 CODE OF CIVIL PKOCEDUEE. § 812. [Am'd, 1895, 1899, 1901.] Form of bond, or undertaking; affidavit of sureties; approval by court or judge. A bond or undertaking, executed by a surety or sureties, as prescribed in this act, must where two or more persons execute it, be joint and several in form; and, except when executed by a fidelity or surety company, or when otherwise expressly prescribed by law, it must be accompanied with the affidavit of each surety, subjoined thereto, to the effect that he is a resident of and a, householder or a freeholder within the state, and is worth the penalty of the bond, or twice the sum specified in the undertaking, over all the debts and liabilities which he owes or has incurred, and exclusive of property exempt by law from levy and sale under an execution. A bond or undertak- ing given by a party without a surety must be accompanied by his affidavit to the same efi'ect. The bond or undertaking, except as otherwise expressly prescribed by law, must be approved by the court before which the proceeding is taken, or a judge thereof, or the judge before whom the proceedings is taken. The approval must be endorsed upon the bond or undertaking. The surety or sureties or the representatives of any surety or sureties upon the bond heretofore or hereafter executed, of any trustee, committee, guardian, assignee, receiver, executor, administrator or other fiduciary shall be entitled as a matter of right to be, and shall be, discharged from liability as hereinafter provided, and to that end may on notice to the principal named in such bond apply to the court that accepted such bond or to the court of which the judge that accepted such bond was a member or 'to any judge thereof, praying to be relieved from liability as such surety or sureties for the act or omission of such principal occurring after the date of the order relieving such surety or sureties hereinafter provided for and that such principal be required to account and give new sureties. Such notice of such application may be served on said principal personally within or without the state, or not less than five days prior to the date on which such application is to be made, unless it satisfactorily appears to the court, or a judge thereof, that personal notice cannot be given with due diligence within the state, in which case notice may be given in such manner as the court or a judge thereof directs. Pending the hearing of such application the court or judge may restrain such principal from acting except to preserve the trust estate until further order. Upon the hearing of such application if the principal does not file a new bond in the usual form to the satisfaction of the court or judge the court or judge must make an order requiring the principal to file a new bond within such reasonable time not exceeding five days as the court or judge in such order fixes. If such new bond shall be filed upon such hearing or within the time fixed by said order the court or judge must thereupon make a decree or order requiring the principal to account for all his acts and proceedings to and including the date of such order and to file such account within a time fixed, not exceeding twenty days, and releasing the surety or sureties making such application from liability upon the bond for any act or default of the principal subsequent to the date of such decree or order. If the principal fail so to file such new bond within the lime specified, a decree or order must be made revoking the appointment of such principal or removing him and requiring him to so account and file such account within twenty days. If the principal fail to file his account as in this section provided such surety or sureties or representatives thereof, may make and file such account with like force and effect as though made and filed by such principal, and upon the settle- ment thereof credit shall be given for all commissions, costs, disbursements, and allow- ances to which the principal would be entitled were he accounting, and allowance shall be made to such surety, or sureties or representative for the expense incurred in so filing such account and procuring the settlement thereof. And after the filing of an account as required, or permitted, in this section the court or judge must upon the petition of the principal or surety or sureties or the representatives of any such surety or sureties, issue an order requiring all persons interested in the state or trust funds MISCELLANEOUS PEOVISION^S. 465 to attend a settlement of such account at a time and place therein specified and upon the trust fund or estate being found or made good and paid over or properly secured, the surety or sureties shall be discharged from and all further liability and the court or judge shall settle, determine and enforce the rights and liabilities of all parties to the proceedings in like manner and to the same extent as in actions for an accounting in the supreme court. And upon demand made in writing by the principal such surety or sureties, or representatives thereof, shall return any compensation that has been paid for the unexpired portion of such suretyship. § 813. [Am'd, 1894.] When several sureties may justify each in a smaller sum. But where the penalty of the bond, or twice the sum specified in the undertaking is five thousand dollars or upwards, the court or judge may, in its or his discretion, allow the sum in which a surety is required to justify to be made up by the justification of two or more sureties each in a smaller sum. But in that case a surety cannot justify, in a sum less than five thousand dollars, and when two or more sureties are required by law to justify, the same person cannot so contribute to make up the sum for more than one of them. It shall be lawful for any party of whom a bond or undertaking is required to agree with his sureties for the deposit of any or all moneys for which such sureties are or may be held responsible with a trust company authorized by law to receive deposits, if such deposit is otherwise proper, and for the safe-keeping of any or all other depositable assets for which such sureties may be held responsible, with a safe-deposit company authorized by law to do business as such, in such a manner as to prevent the withdrawal of such moneys and assets, or any part thereof, except with the written consent of such sureties, or an order of the court made on such notice to them, as it may direct. § 813a. [Added, 1913.] Further protection for undertakings in certain cases. Where an undertaking has been or shall be given in any action or proceeding the court may in its discretion, if justice so requires, order further or other security to be given in addition to such security. Upon cause shown the court may permit an examination or re-examination of any surety upon any such undertaking. Upon such examination or re-examination, if justice so requires, the court may require a new surety or sureties to be furnished or further or other security to be given in addition to the security already given. The court may enforce such order by any disposition of the action or proceeding that may be proper. § 814. [Am'd, 1895.] Bonds, etc., to the people or a public officer for the benefit of a suitor. Where a bond or undertaking has been given, as prescribed by law, in the course of an action or a special proceeding, to "the people or to a public officer, for the benefit of a party or other person interested, and provision is not specially made by law for the prosecution thereof; the party or other person, so interested, may maintain an action in his own name, for a breach of the condition of the bond, or of the terms of the undertaking; upon procuring an order, granting him leave so to do. The order may be made by the court, in which the action is or was pending; the city court of the city of New York, or a county court, if the bond or undertaking was given in a special proceeding, pending before a judge of that court; or, in any other case, by the supreme court. Notice of the application therefor must be given, as directed by the court or judge, to the persons interested in the disposition of the proceeds. 30 4-J6 CODE OF CIVIL PKOCEDUEE. § 815. Bonds, etc., not affected by change of parties. A bond or undertaking, given in an action or special proceeding, as prescribed in this act, continues in force, after the substitution of a new party in place of an original party, or any other change of parties; and has thereafter the same force and effect, a» if then given anew, in conformity to the change of parties. § 816. Id.; to be filed. A bond or undertaking, required to he given by this act, must be filed with the clerk of the court; except where, in a special case, a different disposition thereof is directed by flie court, or prescribed in this act. § 825. Papers in special proceedings; where to be filed. A return or other paper in a special proceeding, where no other disposition thereof is prescribed by law, must be filed, and an order therein must be entered, with the clerk of the county in which the special proceeding is taken, if it is before a county officer, or a judge of a court established in a city; if before a justice of the supreme court, with the clerk of a county designated by the justice; or, if no designation is made by bim, of a county where one of the parties resides. § 826. [Am'd, 1877, 1917.] Publication, xrhere no nevspaper, etc., in county or city. 1. Where a notice, or other proceeding, is required by law to be published in a newspaper published in a county, and no newspaper is published therein, or to be published oftener than any newspaper regularly published therein, the publication may be made in a newspaper of an adjoining county, except where special provision is otherwise made by law. 2. Where a notice or other proceeding is required by law to be published in a news- paper in a county which contains a city having no newspaper, or to be published in a newspaper in such city, the publication, if so required to be made in the county, may be made either in the county or in a city, outside the county, adjoining such city in which no newspaper is published; or, if so required to be made in the city in which no newspaper is published, the publication may be made in such adjoining city of another county. § 842. [Am'd, 1911, 1915.] Before whom oaths and affidavits may be taken. An oath or aflidavit, required or authorized by law, except an oath to a juror or a witness upon a trial, an oath of office, and an oath or acknowledgment required by law to be taken before a particular officer, may be taken before a judge, clerk, deputy clerk, or special deputy clerk, of a court, a notary public, mayor, justice of the peace, a city magistrate of any of the cities of this state, or police justice thereof, surrogate, special county judge, special surrogate, county clerk, deputy county clerk, special deputy county clerk, or commissioner of deeds, within the district in which the officer is authorized to act, except that a justice of the peace may take such oath or affidavit anywhere in county containing the town or city in which he is authorized to act; and when certified by the officer, to have been taken before him, may be used in any court, or before any officer or other person. § 843. [Am'd, 1877.] Id.; in special cases. Where an officer, person, board, or committee, has been heretofore, or is hereafter authorized by law, to take or hear testimony or to hear or receive an affidavit, or to take a deposition, in relation to a matter, concerning which he or it has a duty to perform, the officer or person, or a member of the board or committee, may administer MISCELLANEOUS PKOVISIONS. 467 an oath, for that purpose. Where an officer, person, board, or committee, to whom or to which application is made to do an act in an ofScial capacity, requires information or proof, to enable him or it to decide upon the propriety of doing the act, he or it may receive an afBdavit for that purpose. § 844. Id.; without the state. An oath or affidavit required, or which may be received, in an action, special pro- ceeding, or other matter, may be taken, without the state, except it is otherwise specially prescribed by law, before an officer authorized by the laws of the state, to take and certify the acknowledgment and proof of deeds, to be recorded in the state; and, when certified by him to have been taken before him, and accompanied with the like certificates, as to his official character and the genuineness of his signature, as are required to entitle a deed acknowledged before him to be recorded within the state, may be used, as if taken and certified in this state, by an officer authorized by law to take and certify the same. § 845. [Am'd, 1899.] General mode of swearing. Except as otherwise specially prescribed in this article, when an oath is administer^, the witness shall lay his hand on the gospels and express assent to the oath, and it shall be according to the present practice except that the witness need not kiss the § 846. [Am'd, 1899.] When kissing the gospels dispensed with. The oath must be administered in the following form, to a person who so desires, the laying of the hand upon the gospels being omitted : " You do swear, in the presence of the ever-living God." While so swearing, he may or may not hold up his hand, at his option. § 847. When affirmation to he made. A solemn declaration or affirmation, in the following form, must be administered to a person who declares that he has conscientious scruples against taking an oath, or swearing in any form : " You do solemnly, sincerely, and truly, declare and affirm." § 848. [Am'd, 1877, 1899.] Other modes of swearing. If the court or officer, before which or whom a person is offered as a witness, is satisfied, that any peculiar mode of swearing, in lieu of, or in addition to laying the hand upon the gospels, is, in his opinion, more solemn and obligatory, the court or officer may, in its or his discretion, adopt that mode of swearing the witness. § 849. Swearing persons not Christians. A person believing in a religion, other than the Christian, may be sworn according to the peculiar ceremonies, if any, of his religion, instead of as prescribed in section 845 or section 846 of this act. § 850. Court may examine witness. The court or officer may examine an infant, or a person apparently of weak intellect, produced before it or him, as a witness, to ascertain his capacity and the extent of hia knowledge; and may inquire of a person, produced as a witness, what peculiar ceremonies in swearing he deems most obligatory. S 866. [Am'd, 1895, 1904.] Records not to he removed by Tirtne of sub- poena. The record of a conveyance of real property, or any other record or document, whereof a transcript duly certified may by law be read in evidence, shall not be 468 CODE OF CIVIL PKOCEDUEE. removed, by virtue of a subpoena duces tecum, from the officer in which it is kept, except temporarily, by the clerk having it in custody, to a term or sitting of the court of which he is clerk, or by the officer, having it in custody, to a term or sitting of a court, or a trial before a referee, held in the city or town where the office is situated; but the records kept by the register of the county of New York and the register of the county of Kings shall not be removed except by an order of court made as in this section provided. Where any such record is required at any other place, or any record kept by the register of the county of New York or the register of the county of Kings, is required at a term or sitting of a court or a trial before a referee, it may be removed, by order of the supreme court, or a county court, made in court, and entered in the minutes; specifying that the production of the original instead of the transcript, is necessary. § 867. [Am'd, 1879.] Production, etc., of book of account. A person shall not be compelled to produce, upon a trial or hearing, a book of account, otherwise than by an order requiring him to produce it, or a surpcena duces tecum. Such a subpoena must be served at least five days before the day when he is required to attend. At any time after service of such a subpoena or order, the witness may obtain, upon such a notice as the judge, referee, or other officer prescribes, an order relieving him wholly or partly from the obligations imposed upon him by the subpoena or the order for production, upon such terms as justice requires touching the inspection of the book or any portion thereof, or taking a copy thereof or extracts therefrom, or otherwise. An order may be made, as prescribed in this section, by a judge of the court, or in a special proceeding pending out of court before an officer, by the officer, or, in cither case, by a referee duly appointed in the course, and authorized to hear testimony. A justice of the peace, or other judge of a court not of record, may make such an order in an action brought in his court, at any time after the commencement thereof. § 867a. [Added, 1915.] Subpoena duces tecum relating to hospital records. Where a subpoena duces tecum shall be served upon a public hospital, or superin- tendent or officer thereof, requiring the production of any books of such hospital, showing certain entries or records therein, or any other record or data relating to the physical condition or treatment of a patient, a transcript of such entries or records or data duly certified by the superintendent of such hospital or his assistant and delivered to the court or tribunal requiring it shall be deemed sufficient compliance with such subpoena, unless otherwise ordered by the court, and any such transcript authenticated and produced as herein provided, shall be deemed evidence as if the original of such books, entries or records were produced. § 868. Books, etc., of corporation, kow produced. The production, upon a trial, of a book or paper, belonging to or under the control of a corporation, may be compelled, in like manner as if it was in the hands, or under the control, of a natural person. For fhat purpose, a subpoena duces tecum or an order, made as prescribed in the last section, as the case requires, must be directed to the president, or other head of the corporation, or to the officer thereof, in whose custody the book or paper is. § 869. When personal attendance not required by subpoena duces tecum. ' In a case specified in the last section, or where a subpoena duces tecum, or an order, made as prescribed in section 866 or section 867 of this act, requires a public officer to attend, and bring a book or paper under his control, the subpoena or order is deemed to be sufficiently obeyed, if the book or paper is produced by a subordinate officer or MISCELLANEOUS PKOVISIONS. 469 employee of the corporation, or in the public office, who possesses the requisite knowl- edge to identify it, and to testify respecting the purposes for which it is used. If the. personal attendance of a particular officer of the corporation or public officer is required, a subpoena, without a. duces tecum clausej must also be served upon him. § 1181. Discharge of jury failing to agree. Where a jury is empanelled to try an issue, to make an inquiry, or to assess dam- ages, in an action in a court of record, or not of record, or in a special proceeding before an officer, if the jurors cannot agree, after being kept together, for such a time as is deemed reasonable, hy the court before which, or the officer before whom, they were empanelled the court or officer may discharge them, and issue a precept for a new jury, or order another jury to be drawn, as the case requires; and the same proceedings must be had before the new jury, as if it was the jury first empanelled. § 1211. Judgment to bear interest. A judgment for a sum of money, rendered in a court of record, or not of record, or a judgment rendered in a court of record, directing the payment of money, bears interest from the time when it is entered. But where a judgment directs that money paid out shall be refunded or repaid, the direction includes interest from the time when the money was paid, unless the contrary is expressed. § 1335. [Am'd, 1891.] Exceptions to sureties; justification. It is not necessary that the undertaking should be approved; but the attorney for the respondent may, within ten days after the service of a copy of the undertaking with notice of the filing thereof, serve upon the attorney for the appellant, a written notice that he excepts to the sufficiency of the sureties. Within ten days thereafter, the sureties, or other sureties in a new undertaking to the same effect, must justify before the court below, or a judge thereof, or a referee appointed by the same, or a county judge. At least five days' notice of the justification must be given. A referee may be appointed upon the motion of either party, or upon the court's own motion to take the justification of such sureties and to report the evidence upon the same to the court or judge with his opinion. The court may further direct that either party shall pay the expenses of such reference. If the court or judge finds the sureties sufficient he must indorse his allowance of them upon the undertaking, or a copy thereof, and a notice of the allowance must be served upon the attorney for the exceptant. The effect of a failure so to justify and procure an allowance, is the same as if the undertaking had not been given. The court shall also have power, in case it shall be made to appear to its satisfaction, upon motion, that the exception was taken unnecessarily or for purposes of vexation or delay, to set the same aside and approve the undertaking. § 1367. Id.; irhen issued on filing transcript from justice's court, etc. Where an execution is issued out of a court, other than that in which the judgment was rendered, upon filing a transcript of the judgment rendered in the latter court, it must also specify the clerk, with whom the transcript is filed, and the time of filing; and it must be made returnable to that clerk. If the judgment was rendered in a justice's court, it must specify the justice's name; and it must omit the specification, respecting the filing of the judgment-roll. § 1384. [Am.'d, 1894.] Sale on execution, etc.; trhen and hoir conducted. A sale of real or personal property, by virtue of an execution, or pursuant to the directions contained in a judgment or order, must be made at public auction, between the hour of nine o'clock in the morning and sunset. The sheriff to whom an execution hi' 470 CODE OF CIVIL PEOCEDUEE. is issued shall at any time before the sale of the personal property levied on by him, on the written request of any person who is a creditor of the person against whom the writ was issued under which the sheriff levied upon the property, exhibit to such creditor the personal property so levied upon under said writ and permit an inspection thereof by such creditor or his agent. § 1385. Penalty for taking down or defacing notice of sale. A person who, before the time fixed for the sale in a notice of the sale of property, to be made by virtue of an execution, wilfully takes down or defaces such a notice put up by the sheriff, or by his authority, forfeits fifty dollars to the judgment creditor, the same sum to the judgment debtor; unless the notice was defaced or taken down, with the consent of the person seeking to enforce the forfeiture or the execution was previously satisfied. § 1386. Validity of sale, when not affected by sheriff's default, etc. An omission by the sheriff to give notice, as required by law, or the taking down or defacing of a notice, when put up, does not effect* the validity of a sale, made by virtue of an execution, to a purchaser in good faith, without notice of the omission or offence. § 1387. Purchases on such sales, hy certain officers, prohibited. The sheriff, to whom an execution is directed, or the under-sheriff or deputy-sheriff, holding an execution, and conducting a sale of property by virtue thereof, shall not, directly or indirectly, purchase any of the property at the sale. A purchase made by him, or to his use, is void. § 1405. Personal property bound by esecution. The goods and chattels of a judgment debtor, not exempt, by express provision of law, from levy and sale by virtue of an execution, and his other personal property, which is expressly declared by law, to be subject to levy by virtue of an execution, are, when situated within the jurisdiction of the officer, to whom an execution against property is delivered, bound by the execution, from the time of the delivery thereof to the proper officer, to be executed; but not before. § 1409. Title of bona fide purchasers before levy, not affected. The title to personal property, acquired before the actual levy of an execution, by a purchaser in good faith, and without notice that the execution has been issued, is not affected by an execution delivered, before the purchase was made, to an officer, to be executed. § 1410. [Am'd, 1877.] Execution may be levied upon current money. The officer, to whom an execution against property is delivered, must levy upon current money of the United States, belonging to the judgment debtor; and must pay it over, as so much money collected, without exposing it for sale ; except that where it consists of gold coin, he must sell it, like other personal property; unless he is otherwise directed, by an order of a judge, or by the judgment in the particular cause. § 1411. [Am'd, 1877.] I Plaintiff. 490 CODE OF CIVIL PEOCEDUEE. No. 21. For Board and Itodgimg. "I JUSTICE'S COURT. A. B. vs. i C. D. I J The plaintiff in the above entitled action complains of the defendant therein and alleges : That from the day of , 19 . . , until the day of , 19 . . , the plaintiff furnished said defendant at his request with food, and certain rooms, for which the said defendant agreed to pay the plaintiff the sum of dollars per week. That no part thereof has been paid. Whesefobe, The plaintiff demands judgment against the defendant for the sum of dollars, besides costs. A. B., Plaintiff. No. 22. Against Maker and Indorser. JUSTICE'S COURT. A.B. vs. C. D. and E. F. The plaintiff in the above entitled action complains of the defendant therein and alleges : That for value received, on the day of , 19. ., the defendant, C. D., made his promissory note in writing, for the sum of dollars, due and payable by its terms two months after the date thereof, viz., the day of , 19- •, and delivered the same to the defendant, E. F., who indorsed the same before maturity and delivered it to the plaintiff for value. That when it became due, payment thereof was duly demanded of said defendant, C. D., who refused to pay the same or any part thereof. That thereupon said note was duly protested for non- payment. That the cost of protest was That notice of such non- payment and of the protest of said note for the non-payment thereof was duly given to the defendant, E. F. That no part of said note has been paid plaintiff. Whebefoee, The plaintiff demands judgment against the defendants for the sum of dollars, with interest thereon from the day of , 19. ., besides costs. A. B., Plaintiff. FOEMS. 491 No. 23. By Employee for Being Discharged. JUSTICE'S COURT. A. B. vs. CD. The plaintiff in the above entitled action complains of the defendant therein and alleges : That on the day of , 19 . . , the plaintiff and defendant entered into an agreement whereby the plaintiff agreed to render services for the defendant for the term of one year as a cook, in consideration whereof said defendant agreed to pay the plaintiff the sum of dollars per week for the term of one year. That the plaintiff, pursuant to said contract, on the day of > 19 - ■ , entered upon his employment under said agreement and duly discharged all the duties thereof until the day of , 19 . . , when said defendant, without any cause, unjustly discharged said plaintiff who was then and ever since has been ready and willing to perform all the conditions of said agreement upon his part. That the defendant refused to allow him so to do, or to pay him therefor, to his damage of dollars. For which sum he demands judgment against the defendant, besides costs. A. B., Plaintiff. [iSee ante, p. 64.] ITo. 24. Against Bnyer Refusing to Receive Goods. JUSTICE'S COURT. A. B. vs. }• C. D. I J The plaintiff in the above entitled action complains of the defendant therein and alleges: That on the day of , 19 • • , at the town of , the plaintiff and the defendant entered into an agreement whereby the plaintiff was to deliver to the defendant at the village of ten tons of hay, at the agreed price of ten dollars per ton. That such delivery was to be made on the day of , 19 . . , and that said defendant was to pay plaintiff therefor on the same day. That the plaintiff duly performed all the conditions of said contract on his part, and had delivered at the place of delivery said hay, which the defendant then and there refused to accept, and refused to pay therefor to the plaintiff's damage of dollars. Wherepoee, The plaintiff demands judgment against the defendant for the sum of dollars, besides costs. A. B., Plaintiff. [See ante, p. 80.] 492 CODE OF CIVIL PROCEDURE. No. 25. For Not DeliTering Goods Bongbt. JUSTICE'S COURT. A. B. vs. C. D. The plaintiff in the above entitled action complains of the defendant therein and alleges : That on the day of , 19 . . , at the town of , the plaintiff and defendant entered into an agreement, whereby the plaintiff purchased of the defendant ten tons of hay at the agreed price of ten dollars per ton, and that at the time of said purchase, the plaintiff paid to the defendant the sum of ten dollars thereon, and that said defendant was, by such agreement, to deliver said hay at the depot in the village of , on the day of , 19 . . , at which time by said agreement, plaintiff was to pay the defendant the balance of the purchase price of said hay. That said defendant failed and refused to deliver to the plaintiff at the time and place aforesaid, said hay or any part thereof, to the plaintiff's damage of dollars, for which sum he demands judgment against said defendant, besides costs. A. B., Plaintiff. [See ante, p. 82.] No. 26. Warranty of the Soundness of a, Horse. JUSTICE'S COURT. A. B. vs. C. D. J The plaintiff in the above entitled action complains of the defendant therein and alleges: First. That on the day of , 19 . . , at the town of the defendant, offering to sell the plaintiff a certain horse, warranted said horse to be sound, kind and true. That the plaintiff, relying upon said warranty, then and there purchased said horse, and paid the defendant therefor the sum of dollars. Second. That at the time of said warranty and sale, the said horse was unsound, unkind, and untrue, and had an infectious disease, two spavins, and was windbroken, and would bite and kick, and was balky. That by reason thereof, he was utterly worthless. And was so known at the time of such sale by the defendant, and that said horse is now without value, to the plaintiff's damage of dollars, for which sum he demands judgment against the defendant, besides costs. A. B., Plaintiff. [See ante, p. 72.] POEMS. No. 27. For Conversion. 493 JUSTICE'S COURT. A. B. vs. C. D. The plaintiff in the ahove entitled action complains of the defendant therein and alleges: That on the day of , 19.., the plaintiff delivered to the defendant the sum of twenty-flve dollars with the instruction then and there given said defendant by the plaintiff, to pay said sum to one M. N., for and on account of the plaintiff. That said defendant wrongfully and unlawfully used the money on his own account, and did not pay the same or any part thereof to said M. N., but converted the same to his own use, to the plaintiff's damage of twenty-five dollars. Wheeepore, The plaintiff demands judgment against the defendant for the sum of twenty-five dollars, with interest thereon from the day of , 19.., besides costs. A. B., Plaintiff. No. 28. Trespass. JUSTICE'S COURT. A.B. vs. C. D. The plaintiff in the above entitled action complains of the defendant therein and alleges : That on the day of the plaintiff was the owner and in the possession of the following described lands, namely: (here insert a description of the lands). That on said day the defendant, without the consent of the plaintiff, entered upon said lands and gathered and carried away thirty bushels of apples from the orchard thereon, to plaintiff's damage in the sum of dollars. Wheeepore, The plaintiff demands judgment against the defendant for the sum of dollars, besides costs. • A. B., Plaintiff. No. 29. Complaint in Beple-vin. JUSTICE'S COURT. A. B. vs. C. D. The plaintiff in the above entitled action complains of the defendant therein and alleges : First. That at the time hereinafter mentioned, the plaintiff was lawfully in posses- sion of (here describe the property) of the value of dollars, then and ever since his property. 49i CODE OF CIVIL PKOCEDURE. Second. That on the day of , 19 . . , at the town of , the defendant wrongfully took and carried away said goods and chattels from the possession of this plaintiff, and still unjustly detains the same, to the plaintiff's damage in the sum of dollars. WHEREa'OEE, The plaintiff demands judgment against the defendant for the recovery of the possession of said goods and chattels, or for the sum of dollars, the value thereof, in case a delivery cannot be had; together with dollars his damages besides the costs of this action. A. B., Plaintiff. No. 30. On MecbaBic's Iiiens. JUSTICE'S COURT. A. B. j vs. y C. D. I The plaintiff in the above entitled action complains of the defendant therein and alleges : First. That on the day of , 19 . . , this plaintiff, by virtue of a contract with the defendant, sold and delivered to the defendant certain building materials consisting of (here describe the materials) of the value of dollars. That by the terms of said contract and sale, the said sum became due on the day of , 19 . . , but the defendant has not paid the same. That the said materials were used in erecting a building on the following described premises (here describe premises). That the said premises were during all the time herein stated and at the time of the filing of the notice of lien hereinafter mentioned, the property of the defendant. Second. That on the day of , 19 . . , and after performance of said contract, the plaintiff filed with the clerk of the county of , a notice of lien claimed upon said premises for the indebtedness aforesaid. A copy of which notice of lien is hereto annexed, made a part hereof and marked "A." Whebefobe, The plaintiflf demands judgment directing a sale of the interest of the defendant in the said premises and directing that the proceeds of such sale be applied to the payment of said claim and the costs of this action. (Add verification as in Form No. 116.) A. B., Plaintiff. No. 31. To Foreclose a Chattel Mortgage. JUSTICE'S COUET. A.B. vs. CD. The plaintiff in the above entitled action complains of the defendant therein and alleges : First. That heretofore and on the day of , 19 . . , the defendant was the owner of the chattel described in a chattel mortgage, a copy of which is hereto FOEMS. 495 annexed, made a part hereof, and marked "A." That on the same day for a good and valuable consideration he made, executed and delivered said chattel mortgage to tlio plaintiff. Second. That said chattel mortgage was duly filed in the town clerk's office of the town of , where the defendant resided, at the time of the execution and filing thereof, on the day of , 19. ., and where said chattels were situated at the time of such execution and filing; that the sum secured by said mort- gage is due and payable and that the same remains unpaid, and there is now due and secured and owing by and on said mortgage, the sum of dollars, with interest from the day of , 19 . . . That said mortgage became due and payable on the day of , 19. ., and that no part thereof has been paid, although the same has been duly demanded. Whebefobe, Plaintiff demands judgment, for the foreclosure of said mortgage, and sale of the chattels therein described, by a proper person to be designated by the court, and that the proceeds be applied to the payment of the amount due plaintiff and the costs of the action, and that plaintiff have judgment against the said defendant for any costs and deficiency which cannot be satisfied out of the fund realized from the sale of said chattels, after first paying plaintiff the amount due him and secured thereby. A. B., Plaintiff. No. 32. Demurrer. JUSTICE'S COURT. A. B. vs. C. D. The defendant in the above entitled action demurs to .the complaint therein upon the grounds that it does not state facts sufficient to constitute a cause of action. Upon the further ground that it is not sufficiently explicit to be understood. C. B., Defendant. [Code of Civil Procedure, § 2938.] No. 33. Aaswer. JUSTICE'S COURT. A.B. vs. CD. The defendant in the above entitled action for an answer to the complaint therein: First. Denies each and every allegation, statement and averment therein contained. Second. That before the commencement of this action the defendant had fully paid the plaintiff for all the demands and causes of action stated in said complaint. Third. For a further answer and counterclaim the defendant alleges that before the commencement of this action he sold and delivered to the plaintiff -^ horse at the agreed price of one hundred dollars. That the plaintiff has not paid the same or any 496 CODE OF CIVIL PKOCEDUKE. part thereof, and that by reason thereof there was before the commencement of this action and now is owing the defendant from the plaintiff the sum of one hundred dollars, Wheeepoke, The defendant demands judgment against the plaintiff for the sum of one hundred dollars besides the costs of this action. C. D., Defendant. [Ciode of Civil Procedure, § 2938.] No. 34. Answer of Title to Real Property. JUSTICE'S COURT. A.B. vs. C. D. The defendant in the above entitled action for an answer to the complaint therein: First. Denies each and every allegation, statement and averment therein contained. Second. For a further and separate answer alleges, that the defendant is the owner of the land described in said complaint and that the title to the real property therein described, the whole of which the defendant is the sole owner, will come in question. That the premises are fully described as follows: (Here insert description.) C. D., Defendant. I hereby countersign the within answer. Dated this day of , 19 . . . C. W. H., Justice of the Peace. [Code of Civil Procedure, § 2951.] No. 35. Undertaking on Answer of Title. JUSTICE'S COURT. A.B. vs. C. D. Whereas, the defendant in the above entitled action has by his answer alleged facts showing that title to real property will come in question on the trial of said action: Now, therefore, we, the undersigned, do jointly and severally undertake, and become bound, pursuant to the statute, that if the plaintiff within twenty days from the day of 19 . . , deposits with the justice before whom this action is brought a summons and complaint in a new action, for the same cause, to be brought in the supreme court or a county court, the defendant will within twenty days thereafter give a written admission of the service thereof. (If the defendant vras FOEMS. 497 arrested in the action before the justice the undertaking must further provide " that the defendant will at all times render himself amenable to any mandate, which may be issued to enforce a final judgment in the action so to be brought.") Dated this day of 19 . . . M. N. O. P. State of New Yoek, County of ' **" On this day of , 19.., before me the subscriber, personally came, M. N. and O. P., to me personally known to be the same persons mentioned and described in and who executed the foregoing undertaking, and they duly severally acknowledged the execution thereof. C. W. H., Justice of the Peace. State of Netw York, County of M. N. and 0. P., being duly and severally sworn each for himself says: that he is a resident of and a freeholder within the town of , said county, and is worth the sum of two hundred dollars over and above all the debts and liabilities which he owes or has incurred, and exclusive of property exempt by law from levy and sale under execution. M. N. ' O.P. Subscribed and sworn to before me ) the day of , 19 . . . j C. W. H., Justice of the Peace. I hereby approve of the foregoing undertaking as to its form, manner of execution and sufficiency of its sureties. Dated this day of , 19 . . . C. W. H., Justice of the Peace. [Code of Civil Procedure, § 2952.] No. 36. Undertaking by Defendant on Adjournment. JUSTICE'S COURT. A. B. vs. C. D. Whereas, the defendant in the above entitled action has made application for an adjournment of the trial thereof on the ground that he cannot safely proceed to trial for the want of some material testimony or witness specified by him in his affidavit: Now, therefore, we do jointly and severally undertake, pursuant to the statute, that if the plaintiff recovers judgment in the action; and if, before the expiration of ten days after the plaintiff becomes entitled to an execution upon the judgment, the defendant removes, secretes, assigns, or in any way "disposes of, any part of his property, liable to levy and sale by virtue of an execution, except for the necessary 32 498 CODE OF CIVIL PKOCEDUEE. support of himself and his family; and if an execution upon the judgment is returned wholly or partly unsatisfied; we will, upon demand, pay to the plaintiff the sum due upon the judgment. (Date.) (Signatures.) (Add acknowledgment, justification, and approval by the justice, as in No. 35.) [Code of Civil Procedure, § 2962.] No. 37. Undertaking on Adjournment AVIien Defendant in Custody. JUSTICE'S COURT. A. B. vs. C. D. Whereas, the defendant has been arrested in the above entitled action, and has made application for adjournment on the ground that he cannot safely proceed to the trial thereof for want of some material testimony or witness. Now, therefore, we do jointly and severally undertake, pursuant to the statute, that if the plaintiff recovers judgment in the action; and if an execution is issued thereupon against the person of the defendant, within ten days after the plaintiff is entitled to the same; and if a return is made thereto, on or after the return day thereof, and the defendant cannot be found; we will pay to the plaintiff the amount due upon the judgment. (Date.) (Signatures.) (Add acknowledgment, justification, and approval by the justice, as in No. 35.) [Code of Civil Procedure, § 2963.] No. 38. AffidaTit for Adjournment. JUSTICE'S COURT. A. B. vs. I C. D. I County of , ss.: C. D., being duly sworn, says, that he is the defendant in the above entitled action. That he has fully, fairly and truthfully stated all the facts herein to his counsel, R. C, whose law office is at No street, in the village of , N. Y., and that after such statement, made as aforesaid, he is advised by his said counsel that he has a good and substantial defence upon the merits to the complaint herein. That deponent has stated to his said counsel all the facts that he expects to prove by one M. N., who was a witness at the time of the sale of said horse referred to in said complaint, and heard the conversation that resulted in the sale between the FOEMS. 499 parties hereto, and that after such statement he is advised by his said counsel that he cannot safely proceed to the trial of this action without the testimony of said M. N. That since the service of the summons herein said M. N. has been without the state and is not expected to return to his place of residence, viz.: the village of „ until on or about the day of , 19. . . CD. Subscribed and sworn to before me this day of , 19... [Code of Civil Procedure, § 2961.] No. 39. Snbpoema. County op ,1 Town of , J *■•■■ In the Name of the People of the State of New York : To You are hereby commanded and required to appear personally before me, the under- signed, a justice of the peace, of the town of , at my office in the said town of , on the day of , 19. ., at nine o'clock in the forenoon of that day, to give evidence in a certain civil cause, then and there to be tried, between A. B., plaintiff, and C. D., defendant, on the part of the plaintiff, and fail not at your peril. Givan under my hand, this day of 19 . . . C. W. H., Justice of the Peace. [Code of Civil Procedure, § 2969.] No. 40. Snbpoena Duces Tecnm. In the Name of the People of the State of New York: To You are hereby commanded to be, in your own proper person, before me at my office in the town of , on the day of , 19 . . , at ten o'clock in the forenoon, of that day, to testify what you may know in a certain cause then and there to be tried between A. B., plaintiff, and C. D., defendant, on the part of the plaintiff, and that you bring with you, and produce at the time and place aforesaid (here insert paper desired to have witness produce). Given under my hand, this day of 19 . . . C. W. H., Justice of the Peace. [Code of Civil Procedure, § 2969.] 500 CODE OF CIVIL PKOCEDUKE. No. 41. Proof of Service of Subpoena. County of , ss.: A. B., being duly sworn, says he is over twenty-one years of age and resides in the 'town of , said county, that he did on the day of 19. ., serve the annexed subpoena on Y. Z. at the town of , by reading the same to him personally and by paying to him the sum of A. B. Subscribed and sworn to before me ) this day of , 19 ... j C. W. H., Justice of the Peace. [See Code of Civil Procedure, § 2970.] No. 42. Affidavit for Warrant of Attacbment Against Witness. JUSTICE'S COURT. E. F. vs. i- C. D. I State of New Yobk, ) County of ( C. D., being duly sworn, says, that he is the defendant in the above entitled action; that Y. Z., referred to in the annexed affidavit of A. B., is a material and necessary witness for deponent upon the trial of this action, and that without the testimony of the said witness deponent cannot safely proceed to the trial of this action. That the said Y. Z. resides at in said county, and was on the day of , 19 . . , duly subpoenaed to attend the trial of this action as a witness for deponent, as appears by the affidavit of A. B., of the service of a subpoena upon him, hereto annexed, and as deponent is informed by said A. B. and verily believes. That said witness has refused and neglected to obey the said subpoena without any cause to deponent known. Deponent therefore applies for a warrant of attachment against said Y. Z., to compel his attendance on the trial of this cause as provided in section 2971 of the Code of Civil Procedure. C. D. Subscribed and sworn to before me 1 this day of , 19 ... ( C. W. H., Justice of the Peace. [Code of Civil Procedure, § 2971.] No. 43. Warrant of Attachment Against Defaulting Witness. County of ] Town of , \ **••■ The People of the Btate of New Tork, to any Constable of said county, Greeting: On reading and filing the affidavits of A. B. and C. D., verified the day of , 19 . . , and the annexed subpoena, and the undersigned being satisfied FOKMS. 501 of the truth of said affidavits and that said witness Y. Z. was duly subpoenaed and has neglected and refused to obey this subpoena without just cause. Now, therefore, you are hereby commanded to attach the body of the said Y. Z., if found within this or any adjoining county, and bring him forthwith before me at my office in said town. Dated this day .of ^ . . ., 19. .. C. W. H., Justice of the Peace. [Code of Civil Procedure, § 2971.] No. 44. Minnte of Con-viction. COTTNTT OF :;1 Town of ■■ **••" Be it remembered, that on the day of , 19 . . , Y. Z., a defaulting witness, was brought before me at my office in said town in the custody of , a constable of said town, under a warrant for the arrest of said Y. Z., issued by me on the application of C. D. on the day of , 19 . . , pursuant to the provisions of section 2975 of the Code of Civil Procedure, and that on the return of said warrant the said Y. Z. was allowed a reasonable opportunity to be heard and to produce proof of a reasonable excuse for his default; and such proof not being produced, the said Y. Z. was thereupon on said day of , 19 . . , duly convicted before me of having without reasonable excuse failed to attend as a witness before me at my office in said town on the day of , 19 . . , in obedience to a subpoena duly issued by me and duly served upon him, to give evidence on the part of the defendant in an action then pending before me and then and there to be tried in which E. F. was plaintiff and C. D. was defendant; and that thereupon I imposed upon the said Y. Z. the payment of the sum of dollars as a fine for his failure to attend as aforesaid, and also the payment of the further sum of dollars and cents, the costs of this proceeding. Dated , 19.. C. W. H., Justice of the Peace. [Code of Civil Procedure, § 2976.] No, 45. Execution Thereupon. County of , ) rr, ,■ r ss.: Town of ) The People of the State of New Yorh, to any Constable of said county, Greeting: Whereas, Y. Z. has been duly convicted for disobeying a subpoena and fined, and a minute of such conviction having been duly entered in the docket book of the under- signed, and the said Y. Z. having neglected to pay the same or any part thereof, you are hereby commanded to collect the sum remaining unpaid of the goods and chattels of the said Y. Z. within the county of , and for want thereof to take him and convey him to the jail of said county, there to remain until he pays that sum, not exceeding thirty days. Given under my hand this day of , 19 . . . O. W. H., Justice of the Peace. [Code of Civil Procedure, § 2977.] 602 CODE OF CIVIL PEOCEDUEE. No. 46. Notice to Produce a Paper on the Trial. JUSTICE'S COURT. A.B. vs. CD. To G. D., defendant: You are hereby required to produce on the trial of this action a certain (here describe paper desired) and in case of your failure to produce it, secondary evidence will be given of the contents thereof. Dated this day of , 19. .. A. B., Plaintiff. No. 47. Venire. CotJNTT OP , J Town of , { To any Constable of said County, Greeting: You are hereby commanded to notify (here insert the names of the jurors drawn), to attend before me, as a justice of the peace, at my office in the town of , in said county, on the day of , 19 . . , at ten o'clock in the forenoon of the same day from which a jury can be selected for the trial of a civil action between A. B., plaintiff, and C. D., defendant. Given under my hand this day of , 19 . . . 0. W. H., Justice of the Peace. [Code of Civil Procedure, § 2593.] No. 48. Constable's Return of Venire. I do hereby certify that on the day of 19 . . , I personally served the within venire on each of the jurors named therein by reading or stating the substance thereof to each of the persons so served. Dated this day of , 19 . . . J. H., Constable. [Code of Civil Procedure, § 2093.] FQKMS. 503 No. 49. Venire in Action Between Towns. County of , ) Town of [ **••■ To any Constable of the said County, Greeting: You are hereby commanded to notify twelve men of the said county who are qualified to serve and are not exempt from serving as trial jurors in a court of record, and not interested in the matter at issue, in the within action, to attend before me, a justice of the peace of said town, at my oflSoe in said town on the day of 19. ., at ten o'cloclt in the forenoon of the same day, to form a jury for the trial of a civil action between the Town of S. and the Town of W. ■ You are further required to deliver to me under your hand a return giving a list of the persons notified. Given under my hand this day of , 19 . . . 0. W. H., Justice of the Peace. [Code of Civil Procedure, § 2992.] No. 50. Affidavit that Justice is a Material \(ritness. JUSTICE'S COURT. A.B. vs. C. D and E. P. County of ,T Town of , J **••■ C. D., being duly sworn, says he is the defendant in the above entitled action. That no issue of fact or law has yet been joined therein. That the justice who issued the summons herein and before whom the said action is now pending is a necessary and with the trial herein without his testimony, and he is unable to prove the facts and circumstances which he expects to prove by said justice by any other person. That deponent expects to prove by said justice the following facts and circumstances (here material witness for the defendant, this deponent, and that he cannot safely proceed state them fully) . C. D. Subscribed and sworn to before me ) this day of , 19 ... | [Code of Civil Procedure, § 3151.] 504 CODE OF CIVIL PROCEDUKE, No. 51> Order Transferring Action. JUSTICE'S COURT. A. B. vs. C. D. On read and filing the affidavit of C. D., verified the day of , 19 . . , making satisfactory proof to me that I am a material witness for the said C. D., the defendant in the above entitled action, and that he cannot safely proceed with the trial without my testimony, it is Okdered, That the said action be, and the same hereby is, continued before C. L., Esq., a justice of the peace of the said town of Dated this day of , 19. . . C. W. H., Justice of the Peace. [Code of Civil Procedure, § 3151.] No. 52. Juror's Oath. You do solemnly swear that you and each of you will well and truly try the matter in difference between A. B., plaintiff, and C. D., defendant, and unless discharged by me, a true verdict give according to the evidence. So help you God. [Code of Civil Procedure, § 2998.] No. 53. Constable's Oath on Retiring with the Jury. You do solemnly swear, in the presence of the ever-living God, that you will, to the utmost of your ability, keep the persons sworn as jurors on this trial, together in some private and convenient place, without any meat or drink, except such as shall be ordered by me; that you will not suffer any communication, orally or otherwise, to be made to them; that you will not communicate with them yourself, orally or other- wise unless by my order, or to ask them whether they have agreed on their verdict, until they shall be discharged; and that you will not, before they render their verdict, communicate to any person the state of their deliberations, or the verdict they have agreed on. So help you God. [Code of Civil Procedure, § 3006.] No. 54. Oath of W^itness. You do swear that the evidence you shall give relating to the matter in difference- between A. B., plaintiff, and C. D., defendant, shall be the truth, the whole truth and nothing but the truth. So help you God. [Code of Civil Procedure, § 3000.] No. 55. Oath to Juror Before Examined. You shall true answers make, to such questions as shall be put to you touching your qualifications to act as a juror in this cause. So help you God. FOKMS. 505 No. 56. Warrant of Attaohmeiit Against a Juror Who Fails to Attend. County op ,1 Town of , j **••■ The People of the State of New York, to any Constable of said county, Greeting: On reading and filing the return of J. H., constable, proving that M. N. was duly summoned to attend before me at this time as a juror in a civil cause pending before me, wherein A. B. is plaintiff, and C. D. defendant, and that said M. N. has refused to obey said summons without just cause; Now, therefore, you are hereby commanded to attach the body of the said M. N., and bring him before me at my office in said town on the day of , 19 . . . Dated this day of , 19 . . . C. W. H., Justice of the Peace. [See Code of Civil Procedure, §§ 2974, 2975, 30O9.] No. 57. Minnte of Conviction of Defaulting Juror. COtJNTT OP 1 Town of , 5 **■• Be it remembered, that on the day of , 19. . , M. N., a default- ing juror, was brought before me at my office in said town in the custody of J. H., a constable thereof, under a warrant for the arrest of said M. N. issued by me on the day of , 19 . . , pursuant to the provisions of section 3009 of the Code of Civil Procedure for his default in obeying a summons to attend as a juror ; and that on the return of said warrant the said M. N. was allowed a reasonable opportunity to be heard and to produce proof of a reasonable excuse for his default; and such proof not being produced by him, the said M. N. was thereupon on said aay of , 19 . . , duly convicted before me of having without reasonable excuse failed to attend as a juror before me at my office in said town on the day of , 19. ., in obedience to the venire issued by me in an action then pending before me and then and there to be tried in which A. B. was plaintiff and C. D. was defendant; and that thereupon I imposed upon the said M. N. the payment of the sum of dollars as a fine for his failure to attend as aforesaid, and also the further sum of , the costs of this proceeding. Dated this day of , 19 . . . C. W. H., Justice of the Peace. [Code of Civil Procedure, §§ 2976, 3009.] No. 58. Execution Thereupon. County of > ) Town of > ) The People of the State of New York, to any Constable of said county, Greeting: Whereas, M. N. has been duly convicted for disobeying a summons duly served upon him to attend before me as a juror in a civil cause wherein A. B. was plaintiif and C. D. defendant, without just cause, and whereas for his default and disobedience to a summons or venire duly served upon him therein, he was fined dollars, and a minute of such conviction having been duly entered in my docket book, and that eaid M. N. having neglected to pay the same or any part thereof, you are hereby 506 CODE OF CIVIL PKOCEDUKE. commanded to collect the sum remaining unpaid of the goods and chattels of the said M. N., within the county of , and for want thereof to take and convey him to the jail of said county, there to remain until he pays that sum not exceeding thirty days. Given under my hand this day of , 19 . . . C. W. H., Justice of the Peace. [See Code of Civil Procedure, §§ 2977, 3009.] No. 59. Jnry's Verdict. The form of the jury's verdict should be " we find dollars for the plaintiff," or " we find for the defendant." No. 60. Offer of Judgment Before Ansirei:. JUSTICE'S COURT. A. B. vs. CD. The defendant in the above entitled action hereby offers to allow judgment to be taken against him therein and in favor of the above named plaintiff for the sum of dollars, with costs. Dated this day of , 19 . . . C. D., Defendant. [Code of Civil Procedure, § 2892.] No. 61. Plaintiff's Acceptance. JUSTICE'S COURT. A. B. vs. C. D. I do hereby accept the offer of judgment filed by the defendant herein for the sum of dollars, with costs, to be taken in my favor and against the said defendant. Dated this day of , 19 . . . A. B., Plaintiff. [Code of Civil Procedure, § 2892.] FOKMS. 507 No. 62. Judgment Thereon. JUSTICE'S COURT. A. B. vs. C. D. January 2d, 19 . . . Summons issued in the above entitled action returnable January 8th, 19 . . , at nine a. m. January 8th, 19 . . , nine A. M. The said summons was returned as personally served by H. O., constable, on the 2d day of January, 19. . ; fees, forty-five cents. The plaintiff and defendant appeared in person. The plaintiff complained. (Here state complaint.) The defendant filed an offer of judgment in writing, to allow judg- ment to be taken against him in favor of the plaintiff for the sum of dol- lars, with costs. The plaintiff thereupon immediately filed a written acceptance of the offer. Where- upon I did immediately render judgment this 8th day of January, 19 . . , in favor of the plaintiff and against the defendant for the sum of dollars damages and dollars costs (here insert the items of costs), making a total judg- ment of dollars damages and costs. C. W. H., Justice of the Peace. [Code of Civil Procedure, § 2892.] No. 63. Confession of Judgment. JUSTICE'S COUKT. A. B. vs. CD. I, C. D., hereby confess judgment in favor of A. B., for the sum of dol- lars, and I do hereby authorize the entry of a judgment therefor against me by C. W. H., justice of the peace. C. D. Dated this day of , 19 . . . Piled day of ,19... C. W. H., Justice of the Peace. [Code of Civil Procedure, § 3011.] 508 CODE OF CIVIL PKOCEDUEE. No. 64. Affidavit when Confession over Fifty Dollars. JUSTICE'S COURT. A.B. vs. C. D. County of , ss.. A. B., plaintiff, and C. D., defendant, being duly severally sworn each for himself, says that the defendant is honestly and justly indebted to the plaintiff in the sum specified in the annexed confession of judgment over and above all just demands which the said defendant has against the plaintiff; and that said confession is not made or taken with intent to defraud any creditor. A. B. C. D. Subscribed and sworn to before me 1 this day of , 19. .. ( [Code of Civil Procedure, § 3011.] No. 65. Agreement to Stay Execution. JUSTICE'S COURT. A. B. vs. C. D. We and each of us do hereby agree that the issuing of an execution upon the judg- ment confessed herein be stayed days. Dated this day of 19 . . . A. B. C. D. [Code of Civil Procedure, § 3010.] No. 66. Judgment on Confession. JUSTICE'S COURT. A. B. vs. C. D. Upon the 8th day of January, 19 . . , the defendant in the above entitled action per- sonally appeared before me and filed his confession of judgment duly executed and also the affidavit of the said plaintiff and the said defendant (state substance of it) having been filed with ine, judgment is hereby rendered in favor of said A. B., plaintiff, against the said C. D., defendant, for the sum of dollars, with dollars costs (here itemize the costs) amounting in all to dollars. It is ordered on filing the agreement of the parties hereto that execution be stayed for days. C. W. H., [See Code of Civil Procedure, §§ 3010, 3015.] Justice of the Peace. FOEMS. 509 Nc. 67. Docket. JUSTICE'S COURT. A.B. vs. C. D. January 24th, 19 . . , summons issued in the above entitled action. Returnable January 30th, 19 . . , at 9 a. m., at my office in the town of January 24th, 19.., summons returned personally served on the defendant by E. L., constable. Fees, fifty cents. January 30th, 19 ... 10 a. m. Plaintiff appeared in person and by A. L., his counsel. Defendant appeared in person and by C. J., his counsel. P-laintiff complained (here state complaint). Defendant answered (here state answer). Defendant demanded a jury, and the following names were drawn (here state names of jurors drawn). By consent case adjourned to February 10th, 19.., at 9 A. m., at my office. Febr.uary 10th, 19. ., 10 a. m. Parties appeared as before (here state all the proceed- ings of the trial including the names of witnesses and verdict of the jury). Whereupon I did forwith and on the tenth day of February, 19.., render judgment in favor of the said plaintiff (or defendant as the case may be) and against the said defendant ( or plaintiff as the case may be ) for the sum of dollars damages and dollars costs, amounting in all to the sum of dollars. (Itemize the costs.) Dated February 10th, 19 . . . C. W. H., Justice of the Peace. [Code of Civil Procedure, § 3140.] No. 68. Execution. County op , ) Town of , j In the Name of the People of the State of New York, to any constable of said county. Wheeeas, Judgment was rendered by me, a justice of the peace of said town, in favor of A. B., plaintiff, against C. D., defendant, on the day of 19 . . , for the sum of dollars damages, and dollars costs, upon which there is now due the sum of dollars. Now, therefore, you are hereby commanded to satisfy the said judgment, together with your fees, out of the personal property of the said C. D., the judgment debtor, within your county, not exempt from levy and sale by virtue of an execution; and to brino- the money before me by the return day of this execution, and do you return this execution within sixty days from the date hereof.' Dated this day of 19 • . . C. W. H., Justice of the Peace. [Code of Civil Procedure, § 3026.] 510 CODE OF CIVIL PEOCEDUKE. No. 69. Ezecntion Against the Person. County of } Town of , I **••' In the Name of the People of the State of New York, to any constable of said county. Whebeas, Judgment was rendered by me, a justice of the peace of said town, in favor of A. B., plaintiff, against C. D., defendant, on the day of , 19. ., for the sum of dollars damages, and dollars costs, upon which there is now due the sum of dollars. Said action having been brought to recover damages for a wrongful conversion of personal property. You are, therefore, hereby commanded to satisfy said judgment, together with your fees, out of the personal property of the said C. D., the judgment debtor, within your county, not exempt from levy and sale by virtue of an execution; and to bring the money before me by the return day of this execution; you are also commanded, if suf- ficient personal property cannot be found to satisfy the said judgment, to arrest the said C. D., and convey him to the jail of the said county, there to remain until he pays the judgment, or is discharged according to law. And you are to return this execution within sixty days from the date hereof. Dated this day of , 19. . . C. W. H., Justice of the Peace. [Code of Civil Procedure, § 3026.] •■.1 No. 70. Execution for Chattel. COtTNTY OF Town of . In the Name of the People of the State of New York, to any constable of said county. Whereas, Upon the day of , 19 . . , the undersigned rendered judgment in an action before him, in which A. B. was plaintiff, and C. D. was defendant, that the plaintiff recover of the defendant the possession of the following described chattels (here insert the description) or the sum of fifty dollars, in case a delivery thereof cannot be had, and also that he recover dollars damages, and dollars costs. You are hereby commanded to deliver the said chattels to the said A. B., if the same can be found within your county; and in case a delivery cannot be had, to satisfy the said sum of fifty dollars and interest thereon, and in either case to satisfy the said damages and costs, together with your fees, out of the personal property of the said C D., the judgment debtor, within said county not exempt from levy and sale by virtue of an execution; and to bring the money before me by the return day of this execution, and do you return this execution within sixty days from the date hereof. Dated this day of , 19 . . . C. W. H., Justice of the Peace. [Code of Civil Procedure, §§ 1731, 3038.] No. 71. Indorsement of Iievy on EzecT^tion. On the day of , 19 . . , by virtue of the within execution, I levied on the following personal property (here describe it). Dated this day of , 19 . . . H. 0., Constable. [Code of Civil Procedure, § 3029.] FORMS. 511 No. 72. Execution irhen Warrant of Attachment -was not Personally Served. County op 1 Town of , I **••■ In the Name of the People of the State of New York, to any constable of said county. Whereas, Judgment was rendered by me, a justice of the peace of said town, in favor of A. B., plaintiff, and against C. D., defendant, on the day of , 1S>. ., for the svCm of dollars damages and dollars costs. And, Wheeb^s, The summons in the said action was not served personally, and the defendant did not appear, that a warrant of attachment was duly issued in said action, and the following property (here describe it) was attached thereunder. You are therefore commanded to satisfy the said judgment, together with your fees out of the said property attached as aforesaid, and to bring the money before me by the return day of this execution. And do you return this execution within sixty days from the date hereof. Dated this day of , 19. . . C. W. H., Justice of the Peace. [Code of Civil Procedure, § 2918.] No. 73. Constable's Notice of Sale. By virtue of an execution, issued by a justice of the peace, against the property of C. D., I have levied, seized and taken the following described personal property (here describe it). I shall expose said property for sale at public aution, to the highest bidder, on the day of , 19. ., at nine o'clock in the forenoon, at the permises of the said C. D., in the town of , in the county of Dated this day of , 19. .- H. 0., Constable. [Code of Civil Procedure, § 3029.] No. 74. Notice of Application for Commission. JUSTICE'S COURT. A. B. vs. CD. Please take notice that the undersigned will make an application before C. W. H., a justice of the peace, at his office in the town of , on the day of 19 . . , that a commission issue directed to R. C, at the town of , to examine N. O., of the same place, as a witness on behalf of the plaintiff in the above entitled action upon interrogatories to be annexed to said commission. Dated this day of , 19- • ■ A. B., To C. D., Plaintiff. Defendant. [Code of Civil Procedure, § 2982] 512 CODE OF CIVIL PKOCEDUKE. No. 75. Affidavit for a Commission. JUSTICE'S COURT. A. B. vs. C. D. State op New York, 1 County of , C A. B., being duly sworn, says that he is the plaintiff in the above entitled action, that issue has been joined therein, that due and proper notice of an application for a commission has been personally served upon the defendant herein as more fully appears by the annexed notice and affidavit of service thereof; that N. 0., of tlie town of , in the county of , is a, material witness for the plaintiff in this action; that he cannot safely proceed to the trial thereof without the testimony of said witness, and that said N. O. is not within this county or an adjoining county. A. B. Subscribed and sworn to before me ) this day of , 19 ... ( [Code of Civil Procedure, § 2982.] No. 76. Commissios. JUSTICE'S COURT. A. B. vs. i- CD. I J County op Town of , The People of the State of New York, to R. C, of the town of in the county of , and State of New York. Wheeeas, It appears to the undersigned, a justice of the peace of the town of , by the affidavit of A. B., the plaintiff in the above entitled action, that one N. 0., of the town of , in the county of , is a necessary and material witness for the plaintiff on the trial of said action. Now, therefore, we do hereby appoint you commissioner, and authorize you, as such commissioner, to examine the said witness under oath, upon the interrogatories hereto annexed; to take and certify the deposition of said witness, and to return the same by mail, addresesd to me according to the directions contained in the sections of the Code of Civil Procedure, copies of which are heerto annexed. The said commissioner will return said commission to me at , in the county of , and State of New York, by mail, on or before the day of , 19. . . Dated this day of , 19 . . . C. W. H., Justice of the Peace. (Note. Annex a copy of sections 901 and 902 of the Code of Civil Procedure. This form can easily be varied to a commission to examine witness orally.) [Code of Civil Procedure, § 2980.1 FORMS. 513 No. 77. Interrogatories and Cross-Interrogatories. Interrogatories to be administered to N. 0., a witness to be examined under the annexed commission, on behalf of the plaintiff in the above entitled action. First. (Here insert the interrogatories.) A. B., Plaintiff. Cross-interrogatories to be administered to N. O., a witness to be examined under the annexed commission, on behalf of the defendant in the above entitled action. First. (Here insert the cross-interrogatories.) C. D., Defendant. I hereby settle and approve the foregoing interrogatories and cross-interrogatories. Dated this day of , 19 . . . C. W. H., Justice of the Peace. No. 78. Depositions. JUSTICE'S COURT. A. B. vs. J. C. D. I Deposition of witness produced, sworn and examined the day of , 19.., upon interrogatories and cross-interrogatories under a commission isued herein and hereto annexed, in a cause pending before C. W. H., justice of the peace of the town of , in the county of , wherein A. B. is plaintiff and C. D. is defendant, as follows: N. 0., of the town of , in the county of , being duly and publicly sworn, pursuant to the directions hereto annexed, in answer to the said inter- rogatories and eross-inerrogatories, deposes and says as follows: First. To the first interrogatory he says (here insert answer and so on throughout tha interrogatories and cross-interrogatories ) . Subscribed and sworn to before me 1 'i»-i this day of R. C, Commissioner. (Note. Commissioner must sign each half sheet.) [Code of Civil Procedure, §§ 901, 902.] 33 514 CODE OF CIVIL PEOCEDUKE. No. 79. Notice of Appeal. JUSTICE'S COURT. A.B. vs. i- C. D. j Gentlemen: Please take notice that the defendant in the ahove entitled action hereby appeals to the county court of the county of , from the judgment rendered in the above entitled action by and before C. \V. H., justice of the peace, in favor of the plaintiff, and against the defendant, on the day of 19. ., for the sum of dollars damages and dollars coats. Dated this day of , 19. . . Yours, &c., C. D., Defendant. To C. W. H., Esq., justice of the peace, and A. B., plaintiff. (Note. If a new trial is demanded add: "and the said defendant demands a new trial in the appellate court.") [Code of Civil Procedure, §§ 3046, 3066.] No. 80. ITndertaking to Stay Xlxecntiom. JUSTICE'S COURT. A. B. vs. C. D. Whereas, On the day of , 19.., the plaintiff in the above entitled action recovered a judgment therein against the defendant for the sum of dollars damages and dollars costs, and whereas, the defen- dant intends to appeal from said judgment to the county court of the county of Now, therefore, we, the undersigned, do jointly and severally undertake, pursuant to the statute, that if the appeal is dismissed, or judgment is rendered against the appel- lant in the appellate court, and an execution issued thereupon is returned wholly or partly unsatisfied, we will pay the amount of the judgment or the portion thereof re- maining unsatisfied, not exceeding the sum of dollars. (At least one hundred dollars and not less than twice the amount of the judgment.) Dated this day of , 19 . . . (Signatures.) (Add acknowledgments, justification and approval as in form No. 35.) [Code of Civil Procedure, § 3050.] FOKMS. 515 No. 81. Notice of Delivery of Such Undertaking. JUSTICE'S COURT. A.B. va. CD. Take notice, that an undertaking of whicli tlie witliin is a copy, was delivered to and filed with C. W. H., Esq., justice of the peace, on the . . day of 19... Dated this day of , 19 . . . Yours, etc., O. D., Appellant. To A. B., PlaintiflF. [Code of Civil Procedure, § 3050.] No. 82. Justice's Return. JUSTICE'S COURT. A. B. vs. I C. D. I J To the County Court of the county of Pursuant to section 3053 of the Code of Civil Procedure, I, the undersigned justice of the peace do respectfully return that the annexed notice of appeal was served on me on the day of , 19 . . , and the costs included in the action, and my fee of two dollars for making the return, was then paid to me, and the annexed undertaking was delivered to me at the same time; that the following were all the pro- ceedings taken in the above entitled action, including all the evidence given therein, and the judgment entered therein: (Here state all the proceedings, the evidence and the judgment. Also annex the notice of appeal and undertaking, if any.) C. W. H., Justice of the Peace. Dated this day of , 19 . . . [Code of Civil Procedure, § 3053.] No. 83. VTarrant for a Contempt. County of 1 Town of , \ **••■ In the Name of the People of the State of New York, to ., if he can be found within your county, and bring him forthwith before me; and that you notify the plaintiff of the arrest, if you can do so with reasonable diligence. Bated this day of , 19 . . . C. W. H., Justice of the Peace. [Code of Civil Procedure, § 2897.] No. 89. Constable's Beturm. I hereby certify that I executed the within order of arrest, by arresting the said defendant and taking him forthwith before the justice who issued the same and that I have notified the plaintiff thereof. Dated this day of , 19. . . H. 0., Constable. [Code of Civil Procedure, § 2899.] No. 90. Atadavit for Attachment of Property. County op ,««..• A. B., being duly sworn, says that he resides in the town of , in said county and that C. D. also resides therein; that on the day of . ., 19.., deponent loaned to the said C. D. at his request one hundred and thirty dollars, which sum C. D. promised and agreed to repay to deponent on the Saturday next follow- ing; that more than thirty days have elapsed since the time so agreed for repayment and no part of said sum has been repaid, and that deponent is entitled to recover of said C. D. one hundred and thirty dollars so loaned, over and above any counterclaims in favor of C. D. known to deponent. And deponent further says that since the making of the loan as above stated seve- ral actions have been commenced against C. D. in the Supreme Court upon sundry promissory notes made or indorsed by him; that he has sold the farm upon which he resides to his son, a minor of about nineteen years of age; and as deponent is informed and verily believes, the said C. D. is about to depart from the county of with intent to defraud his creditors ; that the sources of deponent's information and the grounds of his belief are as follows: (here state the information and its sources and the facts tending to show such intent.) Wherefore deponent hereby makes application to C. W. H., justice of the peace, that a summons be issued to deponent for the commencement of an action by him against the said C. D. upon the cause of action before stated, and that a warrant of attachment against the property of the said C. D. be granted by said justice to accompany the summons, A. B. Subscribed and sworn to before me 1 this day of , 19 ... ( C. W. H., Justice of the Peace. [Code of Civil Procedure, §§ 2905, 2906.] FORMS. 519 No. 91. Undertaking on Attachment. JUSTICE'S COURT. A. B. vs. C. D. j J y Wheeeas, a. B., the above named plaintiff, is about to commence an action for the recovery of money against the above named defendant, and has made (or is about to make) an application for an attachment according to the provisions of the Code of Civil Procedure against the property of the defendant. Now, therefore, we hereby jointly and severally undertake and agree to and with the defendant, that if the defendant recovers judgment, or if the warrant of attach- ment is vacated, the plaintiff will pay all costs which may be awarded to the defendant and all damages which he may sustain by reason of the attachment, not exceeding dollars (which must be at least two hundred dollars) . And that if the plaintiff recovers judgment he will pay to the defendant all money received by him from property taken by virtue of the warrant of attachment, or upon any bond given therefor, over and above the amount of the judgment, and interest thereupon. Dated this day of , 19 . . . ( Signatures. ) (Add acknowledgments, justification and approval as in form No. 35.) [Code of Civil Procedure, § 2908.] No. 92. Warrant of Attachment. JUSTICE'S COURT. A. B. vs. J. C. "■ 1 The People of the State of New York to the Constable to whom the within summons is delivered: Whebeas, It appears to my satisfaction by the affidavit of A. B., that the plaintiff in the above entitled action has a cause of action to recover a sum of money only ( here state the cause of action), against the defendant. That the amount of the plaintiff's claim is dollars, over and above all counterclaims (here state the grounds upon which the warrant is granted) ; and, WHB3EAS, A summons has been issued by me herein in favor of the plaintiff and against the said defendant, and the plaintiff has filed with me an undertaking in due form approved by me; now, therefore, you are hereby commanded and required to attach on or before the day of 19 . . , and safely keep so much of the property, within your county, which the defendant has, as will satisfy the plain- tiff's demand, with the costs and expenses, and to make return of your proceedings herein to the undersigned when the summons is returnable. Dated this day of , 19 . . . C. W. H., Justice of the Peace. [Code of Civil Procedure, § 2907.] 520 CODE OF CIVIL PEOCEDUEE. No. 93. Inventory on Attachment. JUSTICE'S COURT. A. B. I vs. K- Wells Company. j I I have this day by virtue of the warrant of attachment hereir taken an inventory of the property attached and the estimated value of each and every item or article thereof; and the same is as follows: (Here give the list of articles and value of each article. ) Dated this day of , 19 . . . H. O., Constable. [Code of Civil Procedure, § 2909.] No. 94. Defendant's Undertaking on Attachment. JUSTICE'S COURT. A. B. vs. C. D. J Wheeeas, a. B., the plaintiff above named, has obtained a warrant of attachment against the property of C. D., the defendant, by virtue of which the constable to whom the warrant was delivered has levied upon and taken into his custody certain goods and chattels of the defendant which the defendant desires redelivered to him by said constable. Now, therefore, for the purpose of obtaining such redelivery pursuant to section 2911 of the Code of Civil Procedure, we, C. D., defendant, and E. F. and G. I., sureties, do hereby jointly and severally undertake to said plaintiff in the sum of dollars ( that being at least twice the value of the property as stated in the inventory ) , that if judgment is rendered against the defendant and an execution is issued thereupon within six months after the giving of this undertaking the property attached shall be produced to satisfy the execution. Dated this day of 19 . . . ( Signatures. ) (Add acknowledgments, justification and approval as in form No. 3-5.) [Code of Civil Procedure, § 2911.] FORMS. 521 No. 95. Attachment; Bond for Delivery to Third Person. JUSTICE'S COURT. A. B. vs. C. D. Know all men by these presents, that we, E. F., G. H. and I. F., all of the town of in the county of and State of New York, are held and firmly bound unto A. B. in the sum of dollars to be paid to the said A. B. or to his certain attorney, executors, administrators or assigns, for which payment well and truly to be made we bind ourselves, our heirs, executors and administrators jointly and severally firmly by these presents. Sealed with our seals this day of ,19--. Wheeeas, certain goods and chattels, to wit, (describe the goods claimed) have been seized by a constable under a warrant of attachment issued by C. W. H., a justice of the peace of the town of in the county of , in favor of aaid A. B. against the property of C. D., and Whereas, the above bounden E. F. claims the goods and chattels above described as his property and the defendant has not reclaimed the same; Now, therefore, the condition of this obligation is such that if, in an action upon this bond commenced within three months after the filing thereof with said justice, the said E. F. shall establish that he was the general owner of the property above described at the time of such seizure, or in case he fails to do so he shall pay to A. B. the value thereof with interest, then this obligation to be void, otherwise to remain in full force and effect. (Signatures and seals.) (Add acknowledgment, justification and approval as in form No. 35.) [See Code of Civil Procedure, § 2912.] No. 96. Beplevin; Affidavit for. JUSTICE'S COURT. A. B. ve. }• C. D. I County of ««•• A. B. being duly sworn, says that he resides in the town of , and is the plaintiff in the above entitled action. That he is and during all the time hereinafter stated, was the owner and entitled to the immediate possession of the following de- scribed personal property (here describe property). That the same are of the value of dollars. That on the day of , 19 . . , the above named defendant wrongfujly entered the plaintifif's premises and without the knowledge or consent of deponent took and carried away said property, and now wrongfully de- tains the same. That the deponent has no knowledge or information as to the cause of the defendant's taking and detaining said property (if cause of detention is known state it here). That said chattels have not been taken by virtue of a warrant against the plaintiff for the collection of a tax, assessment or fine issued in pursuance of a statute 622 CODE OF CIVIL PEOCEDUEE. of the state, or of the United States; that said chattels have not been seized by virtue of an execution or warrant against the property of the plaintiff, or of any other per- son from or through whom the plaintiff has derived title to said property or any part thereof since the seizure thereof; that the actual value of each of said chattels is as above stated amounting in the aggregate to dollars. A. B. Subscribed and sworn to before me ) this day of , 19 ... ( [Code of Civil Procedure, §§ 1695, 2920.] No. 97. irndertakimg in Bepleviii. JUSTICE'S COURT. A. B. vs. C. D. Whebeas, Affidavit has been made by A. B., the plaintiff in the above entitled action, that the defendant therein wrongfully detains certain chattels mentioned in said affidavit of the value of dollars, and that the plaintiff claims the imme- diate delivery of such chattels to him. Now, therefore, in consideration of the taking of said property, or any part thereof, by virtue of said affidavit and the requisition indorsed thereon, we, the undersigned, do hereby jointly and severally undertake and become bound to the defendant in the sum of dollars (twice the value of the property stated in the affidavit) for the prosecution of the said action, for the return of the said chattels to the said defendant, if possession thereof is adjudged to him, or if said action abates, or is dis- continued before said chattels are returned to the defendant, and for the payment to the defendant of any sum which the judgment awards to him against the plaintiff. Dated this day of 19 . . . ( Signatures. ) (Add acknowledgment, justification and approval as in Form No. 35.) [Code of Civil Procedure, §§ 1699, 2920.] No. 98. Beqaisition to Keplevy. JUSTICE'S COURT. A. B. vs. i- C. D. I J To the constahle to whom the annexed summons is delivered: I hereby require you to replevy the chattels mentioned and described in the annexed affidavit on or before the day of , 19 . . . Dated this day of , 19 . . . C. W. H., Justice of the Peace. [Code of Civil Procedure, § 2921] FORMS. 523 Mo. 99. ITotioe of Exception to Sureties. JUSTICE'S COURT. A. B. vs. L C. D. j J Please take notice, that the defendant in the above entitled action excepts to the Buflacieucy of the plaintiff's Sureties, and to the form and sufficiency of the undertaking. Dated this day of 19 . . . C. D., Defendant. To A. B., Plaintiff. [Code of Civil Procedure, § 2924.] No. 100. Notice that Defendant Reclaims Chattel. JUSTICE'S COURT. A. B. vs. C. D. I _J ^ Please take notice, that I require the return to me of the chattels replevied in this action. Dated this day of , 19. .. C. 0., Defendant. To C. W. H., Justice of the Peace. [Code of Civil Procedure, § 2925.] No. 101. Affidavit to Keelaim Chattel. JUSTICE'S COURT. A. B. vs. C. D. C. D., being duly sworn, says that he is the defendant in the above entitled action, and is the owner and entitled to the possession of the chattels mentioned and described in the affidavit of the plaintiff herein (here SJt forth facts showing ownership and the right to possession ) . CD. Subscribed and sworn to, etc. [Code of Civil Procedure, § 2925.] 524 CODE OF CIVIL PKOCEDUEE. No. 102. Defendant's Undertaking in Replevin. JUSTICE'S COURT. A. B. vs. j- C. D. I I Wheeeas, The plaintiff in the above entitled action has replevied from the defendant therein the following described chattels (here insert description) of the value of dollars; and, Whereas, The defendant is desirous of having the said chattels returned to him. Now, therefore, we, C. D., defendant, and E. F. and G. H., sureties, for the procuring of such return, and in consideration thereof, do hereby jointly and severally undertake and become bound in the sum of dollars (at least twice the value of the property as stated ) , for the delivery of said chattels to the plaintiff, if delivery thereof is adjudged; and for the payment to him of any sum which the judgment awards against the defendant. Dated this day of , 19 . . . (Signatures.) (Add acknowledgment, justification and approval as in Porm No. 35.) [Code of Civil Procedure, §§ 1704, 1712, 2926.] No. 103. AfEda-rit of Claim by Third Person. JUSTICE'S COURT. A. B. vs. Y • C. D. I I E. F., being duly sworn, says that at the time the replevy thereof he was the owner of and entitled to the possession of the chattels described in the plaintiff's affidavit herein, which are described as follows (here insert description) : That he claims as against the defendant herein the right to the possession of said chattels, and that his right thereto arises from (here state the facts showing his right to the possession of said chattels). E. F. Subscribed and sworn to, etc. [Code of Civil Procedure, §§ 1709, 2929.] No. 104. Undertaking; of PlaintifF to Indemnify Constable Against Claim of Third Party in Replevin. JUSTICE'S COURT. A. B. vs. j. CD. I : I Wheeeas, H. O., constable, has replevied in this action and now holds the following described chattels (here insert description) : And, whereas, one E. F. now claims to have the right to the possession thereof, and has served an affidavit as required by FORMS. 525 law; and, whereas, the said constable has served the plaintiff herein with a copy thereof and a notice that he requires to be indemnified against such claim. Now, therefore, we do hereby jointly and severally undertake and become bound to the said H. O., constable, that we will indemnify him against any liability for damages, costs or expenses in any action brought against him by the said claimant, or any person deriving title from or through him by reason of the taking or holding of the said chattels, or delivering the same to the plaintiff, not exceeding the sum of dollars. Dated this day of , 19 . . . ( Signatures. ) (Add acknowledgment, justification and approval as in Form No. 35.) [Code of Civil Procedure, §§ 1711, 2929.] No. 105 Petition on Seizare of Strays. To C. W. H., Justice of the Peace : The petition of A. B. respectfully shows : That the following animals (here describe the animals) were on the day of , 19^., running at large in a public street (here name the street or highway) bordering upon real property owned and occupied by your petitioner; that said animals did on that day enter upon the real property of your petitioner so owned and occupied by him and trespassed upon the said real property; that said animals having entered thereupon from said public street. That your petitioner, seized and now has the said animals in his possession and that the owner thereof is M. N. Whebefoee, Your petitioner prays for a final order directing the sale of said animals seized as aforesaid and the application of the proceeds thereof as prescribed by law. Dated this day of , 19. .. A. B. County of , ss.: A. B., being duly sworn, says that he' has read the foregoing petition by him sub- scribed and knows the contents thereof, that the same is true to his own knpwledge except as to the matters therein stated to be alleged on information and belief, and as to those matters he believes it to be true. A. B. Subscribed and sworn to, etc. [Code of Civil Procedure, § 3086.] No. 106. Precept on Seizure of Strays. In the Name of the People of the State of New York : To M. N. Whereas, A. B. presented a petition dated and verified the day of , 19.., (state substance of the petition and describe the animals), and praying for a final order directing the sale of said animals, and the application of the proceeds as prescribed by law. You are, therefore, hereby required to show cause before me at my office, in the town of . .' , on the day of , 19. ., at .... o'clock in the noon of the same day why the prayer of the petitioner should not be granted. Dated this day of , 19- •• C. W. H., Justice of the Peace. [Code of Civil Procedure, § 3087.] 526 CODE OF CIVIL PKOCEDUKE. No. 107. Final Order Directing Sale on £ieizare of Strays. Whebeias, a. B. presented to me his petition dated and verified the day of , 19. ., stating (here state the substance of the petition) ; and, Whebeas, a precept was directed to M. N., having been issued upon said petition directing (here state substance of precept), and such precept having been served personally on said M. N. on the day of , 19, and he having failed to appear on the return day thereof, it is Ordered, That the said animals be sold and the proceeds thereof be applied as prescribed by law. Dated this day of , 19 . . . C. W. H., Justice of the Peace. [Codejof Civil Procedure, § 3091.] No. 108. 'Warrant to Sell; on Seizure of Strays. In the Name of the People of the State of New York : To any Oonstahle of the county of -■ Whereas, a final order was made by me on the day of , 19 . . , upon the petition of A. B., and due proceedings had thereon, directing the sale of the following described animals ( here insert description ) , and the application of the proceeds thereof as prescribed by law. You are, therefore, hereby directed to sell the said animals at public auction, for the best price which you can obtain therefor, and to make return thereof to me on the day of , 19 . . . Dated this day of , 19 . . . C. W. H., Justice of the Peace. [Code of Civil Procedure, § 3091.] No. 109. N\^ COUKTS OF SPECIAL SESSIONS 551 misdemeanor, so far as applicable ; and the challenge must in all cases be tried by the court. (Code Crim. Pro., § 707.) The provisions of the statute in respect to challenges are contained in sections 359 to 387, inclusive, of the Code of Criminal Procedure, and are made applicable to Courts of Special Sessions by section 62 of that act. A challenge to the panel is not of as frequent occurrence as a challenge to individual jurors, and is governed by sections 360 to 368 inclusive. Before a juror is called, the defendant must be informed by the court, or under its direction, that if he intend to challenge an individual juror, he must do so vehen the juror appears and before he is sworn. (Code Crim. Pro., § 369.) The challenge to the individual juror may be peremptory or for cause. (Id., § 370.) But five peremptory challenges are allovred to each party. (Id., § 373.) When six jurors appear and are accepted they form the jury (Id., § 710), and the court must then swear the jury in the form prescribed. (Id., § 711.) After the jury are sworn they must sit together and hear the proofs and allegations of the parties, which must be delivered in public and in the presence of the defendant. (Id., § 712.) The trial should proceed in the order prescribed by section 388 of the Code of Criminal Procedure, which, with the sections following, including the section relating to polling the jury (§ 450), apply to Courts of Special Sessions. (Id., § 62.) The jury may either decide in court or retire ; and if they do not immediately agree an officer must be sworn to attend them, as prescribed in section 713, where the form of oath is given. When the jury have agreed on their verdict they must deliver it publicly to the court, and the court must enter it on its minutes. Id., § 714.) The jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict, unless, for some cause within the meaning of sections 428 and 429, the court sooner discharges them. (Id., §715.) The causes which will justify the court in discharging the jury before agreement are as follows: (1) Upon the occurrence of some injury or casualty affecting the defendant, the jury or some of them, or the court, rendering it inexpedient to keep them longer together; or (2) when after the lapse of such time as shall seem reasonable to the court, they shall declare themselves unable to agree upon a verdict; or (3) wheti, with the leave of the court, the public prosecutor and the counsel for the defend- ant consent to such discharge. (Id., § 428.) Whenever the jury is dis- charged without a verdict, the reason for the discharge must be entered on the minutes. (Id., § 429.) The court may proceed again to the- trial. 552 CEIMINAL ACTIO^ts AND PEOCEEDIXGS. in the same manner as upon the first trial, and so on until a verdict is rendered. (Id., § 716. See Cook's Annotated Criminal Code, p. 430. ) § 5. Punishment. When the defendant pleads guilty, or is convicted either by the court or by a jury, the court must render judgment thereon, of fine or imprison- ment, or both as the case may require; but 'the fine cannot exceed fifty dollars, nor the imprisonment six months. (Id., § 717. See Cook's Annotated Criminal Code, p. 430.) A Court of Special Sessions is a court of limited jurisdiction, and the limit of its power to punish is prescribed by the section last cited. (People y.Pe Graff, 56 Misc. 429; People v. Carter, 48 Hun, 165 ; People ex rel. Stolces V. Risley, 38 Hun, 280; People ex. rel. Kane v. Sloane, 98 App. Div. 450, 455 ; People v. Schermerhom, 59 Misc. 146 ; People v. Henschel, 35 N. Y. St. Eep. 275.) If the fine imposed is for a greater sum than a Court of Special Sessions is authorized to impose, the sentence is absolutely void and the judgment entered thereon unauthorized. (Id.) But a judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied; specifying the extent of the im- prisonment, which cannot exceed one day for every one dollar of the fine. (Code Crim. Pro., § 718.) If the judgment is to pay a fine and that the defendant be imprisoned until it is paid, the court upon imposing sentence may direct that the execution of the sentence of imprisonment be suspended for such period of time, and on such terms and conditions as it shall determine, and shall place such defendant on probation under the charge and supervision of a pro- bation officer during such suspension, provided, however, that upon pay- ment of the fine being made, the judgment shall be satisfied ■ and the jirobation cease. The court may, upon consent of the defendant and as one of the conditions of suspension of sentence, or of probation, require him while under suspended sentence or on probation to make restitution or reparation to the aggrieved parties in an amount to be fixed by the court, not to exceed the actual losses or damages caused by his offense; or the court may require the defendant while under suspension of sentence or on probation to support his children." (Code Crim. Pro., § 483, subd. 2.) § 6. Acquittal. If the defendant is acquitted either by the court or jury he must be immediately discharged ; and if the court certify or the jury find that the prosecution was malicious or without probable cause the court must order the prosecutor to pay the costs of the proceedings, or to give satisfactory PEOCEEDmGS IN COUETS OF SPECIAL SESSIONS 553 security, by a written undertaking, with one or more sureties, to pay the same to the county within thirty days after the trial. (Id., § 719. For form of the order see Form No. 118.) If the prosecutor do not pay the costs or give security therefor the court may enter judgment against him as provided in section 720. (See Form No. 119.) § 7. Certificate of conviction. When a conviction is had upon a plea of guilty, or upon a trial, the court must make and sign a certificate in substantially the form pre- scribed by section 721, making the change directed by section 722 if the defendant has pleaded guilty. The certificate must be filed in the office of the county clerk within twenty days after the conviction, and the certificate or a certified copy thereof Is conclusive evidence of the facts stated therein. (Code Crim. Pro., §§ 723, 724.) The judgment must be executed by the sheriff of the county, or by a constable, marshal or police- man of the city, village or town in which the conviction is had, upon re- ceiving a copy of the certificate certified by the court or the county clerk. (Id., 725. See Cook's Anotated Criminal Code, pp. 433-436.) The requirement that the certificate shall briefly designate the offense is substantially and suificiently complied with by stating the crime according to its statutory definition. {People v. Johnson, 110 N. Y. 134; People ex rel. Allen v. Hagan, 170 N. T. 46; Matter of Bartholomew, 106 App. Div. 371; Peple ex rel. Bidwell v. Pitts, 111 App. Div. 319; People ex rel. Dinsmore v. Keeper of Penitentiary, 125 App. Div. 137; People ex rel. Byan v. Wehster, 86 Hun, 68.) A s^ibstantial compliance with the statute in the certificate of conviction is all that is required. {People ex rel. Cook v. Pitts, 111 App. Div. 321.) But the statute is not complied with where the certificate does not designate the offense, and merely states the conviction as for a violation of a specified section of the Penal Law that refers to a number of different or distinct acts, some of which are or may be lawful, some of which are felonies, and others the subject of merely civil penalties. {People ex 'rel. Allen v. Hagan, 170 N. Y. 46.) The statue does not require that any judgment should be entered in the minutes of the court. There is but one mode of rendering judgment and that is by pronouncing sentence, and there is but one record of the judgment and that is the certificate of the sentence pronounced. {People ex. rel. Cool v. Smith, 28 N. Y. St. Kep. 306, 308.) The certified copy of the certificate under which the defendant is held is a commitment. {People ex rel. Dinsmore v. Keeper of Penitentiary, 125 App. Div. 137.) A failure to state in the certificate the time, or the place, or the person 554 CKIMINAL ACTIOJiTS AND PEOCEEDIjSTGS. from whom a larceny was committed, or that it was committed in the county, does not render the certificate defective. (People ex rel. Sullivan X. Sloan, 39 App. Div. 265; People ex rel. Bidwell v. Pitts, 111 App. Div 319.) § 8. Suspension of sentence. Section 2188 of the Penal Law provides as follows: " The several sections of this chapter which declare certain crimes to be punishable as therein mentioned devolve a duty upon the court or magistrate authorized to pass sentence to determine and impose the punishment prescribed; but a court or magistrate authorized to impose sentence upon conviction of any crime not punishable by death or life imprisonment, or in any ease of juvenile delinquency, or in any other proceeding of a criminal nature, whether the defendant has previously been convicted of a crime or not, may suspend sentence or impose sentence and suspend the execution of the whole or a part of the judgment and may in either case place the defendant on probation in accordance with the provisions of section eleven-a of the code of criminal procedure. No provision of this chapter or of the code of criminal procedure or of any general statute shall be construed to prevent the court or magistrate authorized to impose sentence from exercising discretion to suspend sen- tence or suspend the execution of the whole or a part of the judgment or to place on probation as hereinabove provided. If sentence shall have been suspended or, if sentence shall have been imposed and execution of the whole or a part of the judgment shall have been suspended, at any time thereafter within the longest, period for which a defendant might have been committed in the first instance or, if the defendant is on pro- bation and the period of probation exceeds the period for which the de- fendant might have been sentenced, at any time while the defendant re- mains on probation, the court or magistrate having jurisdiction may issue process for the rearrest of the defendant, and when such defendant is arraigned may, if sentence shall have been suspended, impose any sentence or make any commitment which might have been imposed or made at the time of conviction or may, if sentence shall have been imposed and execu- tion of the whole or a part of the judgment suspended, revoke the order sus- pending execution of judgment and order executed the judgment or the part thereof the execution of which shall have been suspended or may modify the judgment so as to provide for the imposition of any punish- men which might have been imposed at the time of conviction." The power to suspend sentence existed and was recognized and exer- PKOCEEDmGS IX COUETS OF SPECIAL SESSIONS 555 cised at common law from the earliest times. (See People ex rel. Forsyth V. Court of Sessions, 141 IST. Y. 288, 293.) Section 470-a of the Code of Criminal Procedure provides that : " If, after a plea or verdict of guilty or after a verdict against the defendant upon a plea of former conviction or acquittal, sentence shall have been suspended, the court may impose any sentence or make any commit- ment which might have been imposed or made at the time of conviction. If sentence shall have been imposed and execution of the whole or a part of the judgment suspended, the court may revoke the order suspending exe- cution of judgment and order executed the judgment or the part thereof the execution of which shall have been suspended or may modify the judgment so as to provide for the imposition of any punishment which might have been imposed at the time of conviction. " The court may impose sentence or order judgment executed with or without modification as hereinabove provided at any time after such suspension of sentence or suspension of execution of judgment within the longest period for which the defendant might have been sentenced or, if the defendant is on probation and the period of probation exceeds the period for which the defendant might have been sentenced, at any time while the defendant remains on probation; but not after the expiration of such period or periods, unless the defendant shall have been convicted of another crime committed during such period." And section 4'rO-b provides : " If judgment be not pronounced as in the last section provided, nevertheless : " 1. For the purpose of indictment and conviction of a second ofFense, the plea or verdict and suspension of sentence or suspension of execution of the whole or a part of the judgment after sentence shall be regarded as a conviction, and shall be pleaded according to the fact. " 2. The said plea or verdict and suspension of sentence or suspension of execution of the whole or a part of the judgment after sentence may be proved in the manner provided by statute for proving a conviction for the purpose of affecting the weight of the defendant's testimony in any action or proceeding, civil or criminal," § 9. Probation officers. The statute authorizes the appointment of probation officers by the magistrates of the courts having original jurisdiction of criminal actions and prescribes the duties of the probation officers, (Code Crim. Pro,, § 11-a. See Cook's Annotated Criminal Code, p. 17.) 556 CRIMIITAL ACTIONS AND PROCEEDINGS. § 10. Procuring attendance of witnesses. The court may issue subpoenas for witnesses as provided in section 608 and punish disobedience thereof as provided in section 619. (Code Crim. Pro., § 729.) The statute prescribes the form of the subpcena. (Id., § 612. See Form No. 106.) If a chattel, books, papers or documents is required, a direction to the following effect must be countained in the subpoena : " and you are required to bring with you the following " [describe intelligbly the chattels, books, papers or documents required.] (Code Crim. Pro., § 613. See Form No. 107. The subpcena will be served by a peace officer who will make a written return of service. (Code Crim. Pro., § 614. See Form No. 108.) Disobedience to a subpoena, or a refusal to be sworn or to testify, may be punished by the court or magistrate as for a criminal contempt in the manner provided in the Judiciary Law. (Code Crim. Pro., § 619.) No fees are payable to a witness for his services or attendance in a Court of Special Sessions. (Id., § 731.) § 11. Punishing jurors for nonattendance. If a person summoned as a juror fail to appear, he may be punished by a fine not exceeding five dollars imposed by the court, by an order entered in his minutes. The order is deemed a judgment, in all respects, in favor of the poor of the town or city. (Code Crim. Pro., § 730.) No fees are payable to a juror for his services or attendance in a Court of Special Sessions. (Id., § 731.) § 12. Bail". During the time allowed to the defendant to give bail, and until judg- ment is given, he may be continued in the custody of the officer, or com- mitted to the jail of the county to answer the charge as the magistrate may direct. (Code Crim. Pro., § 733.) A commitment will be in the form given in section 734, and executed as directed in section 735, The statute prescribes when, how and by whom bail may be taken, the form of the undertaking, and the effect and consequences of a failure of the defendant to appear. (Id., §§ 736-740.) § 13. Fees of justices and constables. The fees of a justice of the peace in a criminal case are specified in section 740-a of the Code of Criminal Procedure, and the fees of a con- stable in a criminal case are stated in section 740-b of that act. (See Cook's Annotated Criminal Code, pp. 439-441.) PKOCEEDINGS m COUETS OF SPECIAL SESSIONS 557 § 14. Special sessions in New York City. The offenses over which Courts of Special Sessions in the city of New York have jurisdiction are enumerated in the Greater New York Charter [(Greater N. Y. Charter, § 1409 ; Code Crim. Pro., § 64. See Cook's Anno- tated Criminal Code, pp. 51-52) ; but the legislative authority conferred upon the court with reference to the arraignment of the defendant, the plea and the trial is that contained in the Code of Criminal Procedure regulating the authority of Special Sessions generally throughout the State {People v. Harbor, 100 App. Div. 317, 322; Code Crim. Pro., § 741), with the exceptions mentioned in section 741 of that act. (See Cook's Annotated Criminal Code, pp. 442-445.) For the purpose of the administration of criminal justice the city is divided into two divisions (Greater N. Y. Charter, § 1390), and the Court of Special Sessions of either of the two divisions must be held by three of the justices of the court. (Id., § 1408.) The justices of the first and second divisions respectively appoint a clerk and deputy clerk of the court and necessary oflScers and attendants. (Id., § 1407.) The justices of the courts are magistrates, and have and exercise all the jurisdiction and powers conferred by law upon magistrates which are not inconsistent with the charter. (Id., § 1411.) There are certain pro- visions in the charter of the city relating to methods of procedure in Courts of Special Sessions designed to conform them to those in the Courts of General Sessions. (Id., §§ 1410, 1412.) All trials in these courts are without a jury. (Id., § 1410.) This is not in violation of the Constitution, as a person accused of a misdemeanor has no constitutional right to a trial by jury. (People ex rel Murray v. Justices, 74 N. Y. 406 ; People ex rel. Comaford v. Butcher, 83 IST. Y. 240 ; People v. Stein, 80 App. Div. 357 ; People ex rel. Burns v. Flaherty, 119 App, Div. 462.) All sessions of the court are attended by the district attorney of the county in person or by an assistant (Greater N. Y. Charter, § 1415) ; and all criminal actions in these courts, except in the parts devoted to the trial of children under sixteen years of age and known as Children's Courts, must be prosecuted by information made and signed by the district attorney in substantially the form prescribed by section 742 of the Code of Criminal Procedure. The duties of the district attorney are defined by section 743 of that act. (See People v. Spier, 120 App. Div. 786.) The court may send its process and other mandates in any matter of which it has jurisdiction into any county of the State for service or execution in like manner and with the same force and effect as similar process or mandates of the Court of General Sessions of the city and county of New York, and of County Courts in counties other than New York, as pro- 558 CEIMINAL ACTIONS AND PKOCEEDINGS. vided by the Code; and particularly to compel the attendance of -wit- nesses, to order the conditional examination of witnesses, without the State, to inquire into the insanity of a defendant and to dismiss the prosecu- tion of an action in like manner as the prosecution of actions by indict- ment may be dismissed conformably to the provisions of title twelve of part four of the Code of Criminal Procedure. (Code Crim. Pro., § 64.) The clerk of the court signs the subpcenas for witnesses and the certifi- cate of the judgment, and enters all the proceedings of the court and the sentences upon conviction in a book of minutes, and, when necessary, certifies the proceedings of the court. (Id., § 744.) No transcript of a conviction had in this court need be certified or filed; but a copy of the minutes of the conviction, certified by the clerk, is conclusive evidence of the facts contained therein. (Id., § 746.) The statute prescribes the procedure on appeals from Courts of Special Sessions. (Id., §§ 749-772. See Cook's Annotated Criminal Code, pp. 446-455.) PART IV. THE CODE OF CRIMINAL PEOCEDUEE WITH FOEMS. (Explanatory Note. — The following pages contain such portions only of the Code of Criminal Procedure as are applicable, in whole or in part, to criminal actions or proceedings in Courts of Special Sessions or Police Courts, or before magistrates. These provisions form a part of chapter 442 of the laws of 1881, entitled " An Act to establish a Code of Criminal Procedure," and, as here given, embrace all amendments thereto, including those passed in 1909. The divisions into parts, titles, chapters and sections are those of that act. Forms adapted to the pro- cedure prescribed are placed immediately after the Code provisions. ) The People of the State of New York, represented in Senate and Assembly, do enact as follows: AN ACT TO ESTABLISH A CODE OF CRIMINAL PROCEDURE. PBELIMINABY PROVISIONS. Section 1. Title of the Code. 2. Divisions of the Code. 3. No person punishable but on legal conviction. 4. Crimes, how prosecuted. 5. Criminal action defined. 6. Parties to a criminal action. 7. The party prosecuted linown as defendant. 8. Rights of defendant in a criminal action. 9. Second prosecution for the same crime prohibited. 10. No person to be a witness against himself in a criminal action or to be unnecessarily restrained. 10a. Searching prisoners. 10b. Prisoners brought into court without habeas corpus. 10c. Disposition of fines imposed for violation of laws relating to the game of policy. § 1. Title of the Code. This act shall be known as the Code of Criminal Procedure of the State of New York. § Z. Divisions of the Code. This Code is divided into six parts. The first relates to the courts having original jurisdiction in criminal action; The second relates to the prevention of crime ; The third relates to the judicial proceedings for the removal of public oflScers by impeachment or otherwise; The fourth relates to the proceedings in criminal actions prosecuted by indictment; The fifth relates to proceedings in special sessions and police courts; The sixth relates to special proceedings of a criminal nature. 559 560 CODE OF CEIMmAL PEOCEDUKE. § 3. No person pnnishable but on legal conviction. No person can be punished for a crime except upon legal conviction in a court having jurisdiction thereof. § 4. Crimes, how prosecuted. A crime must be prosecuted by indictment, except: 1. Where proceedings are had for the removal of a, civil officer of the state on impeachment by the assembly for willful or corrupt misconduct in office; 2. Where proceedings are had for the removal of justices of the peace, police justices and justices of justices' courts and their clerks; 3. A crime arising in the militia when in actual service, and in the land and naval forces in time of war, or which this state may keep with the consent of congress in time of peace; 4. Such crimes as are hereinafter or in special statutes specified as cognizable by courts of special sessions and police courts. § 5. Criminal action defined. The proceeding, by which a party charged with a crime is accused and brought to trial and punishment, is known as a criminal action. § 6. Parties to a, criminal action. A criminal action is prosecuted in the name of the people of the State of New York, as plaintiffs, against the party charged with crime. § 7. The party prosecuted knoirn as defendant. The party prosecuted in a criminal action is designated in this code as the defendant. § 8. Rights of defendant in a criminal action. In a criminal action the defendant is entitled: 1. To a speedy and public trial; 2. To be allowed counsel as in civil actions, or he may appear and defend in person and with counsel ; and 3. To produce witnesses in his behalf, and to be confronted with the witnesses against him in the presence of the court, except that (a) where the charge has been prelim- inarily examined before a magistrate, and the testimony reduced by him to the form of a deposition in the presence of the defendant, who has, either in person or by counsel, cross-examined, or had an opportunity to cross-examine, the witness; or (b) where the testimony of a witness on the part of the people, has been taken according to the provisions of section two hundred and nineteen of this code, the deposition of the witness may be read upon its being satisfactorih' shown to the court that he is dead or insane, or cannot with due diligence be found in the state; or (c) where the defendant is charged with a violation of the provisions of the tenement house law, being chapter sixty-one of the consolidated laws, as it now exists or shall be amended, the certificate under his hand and official seal of the commissioner or other head of the department charged with the enforcement of said chapter that the house at or in respect to which such crime is charged was at the time of the alleged crime recorded and registered in said department as a tenement house in accordance with the pro- visions of said tenement house law shall be presumptive evidence that such house is a tenement house within the meaning of such chapter. § 9. Second prosecution for the same crime prohibited. No person can be subjected to a second prosecution for a crime for which he has once been prosecuted, and duly convicted or acquitted. PRELIMINAEY PKOVISIONS. 561 § 10. No person to be a Tritness against himself, or unnecessarily restrained. No person can be compelled in a criminal action to be a witness against himself, nor can a person charged with a crime be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge. § 10a. [Added, 1909.] searching prisoners. Any magistrate who shall commit any person, charged with any offense, to prison, or by whom any vagrant or disorderly person shall be committed, may cause such person to be searched for the purpose of discovering any property he may have ; and if any property be found, the same may be taken and applied to the support of such person while in confinement. § lOb. [Added, 1909.] Prisoners brought into court -without habeas corpus. When it shall be necessary for any purpose, to bring any prisoner confined in a county jail, before the supreme court, a county court or a court of general sessions, which may be sitting in such county, such court may by order, and without issuing any writ of habeas corpus, or other process, direct such prisoner to be brought before them accordingly. § lOc. [Added, 1909.] Disposition of fines imposed for violation of lairs relating to the game of policy. All fines, penalties and forfeitures imposed and collected under the provisions of every act passed, or which may be passed, relating to or affecting the game of policy. In every case where the prosecution shall be instituted or conducted, by a society incorporated and having as an object the prevention or euppression of the game-of- policy, must be paid on demand to such society. 36 562 CODE OF CRIMINAL PEOCEDUEE. PART I. Or CouETS Having Obiginal Jukisdiction in Cbiminai Actions. TITLE I. OF COURTS HAVING OBIGINAL JUEISDICTION IN GENEBAL. Section 11. Of the eourts of original criminal jurisdiction. 11a. Probation officers. § II. Of the courts of original criminal jurisdiction. The following are the courts of justice in this state having original jurisdiction of criminal actions: 1. The court for the trial of impeacements. 2. The supreme court. 3. The county courts in counties other than New York. 4. The city courts of Utica and Oswego. 5. The mayor's court of the city of Hudson. 6. The court of general sessions in the city and county of New York. 7. The courts of special sessions. 8. The police courts. The courts of special sessions and police courts are deemed inferior courts of record, within the section of the constitution which provides for the removal of justices of the peace and judges, or justices of inferior courts not of record, and their clerks, by such county, city or state courts as are designated by law; but for no other purpose. § 11a. [Amended, 1903, 1904, 1905, 1908, 1909, 1910.] Probation ofacer; appointment; duties; po-nrer; procedure; transfers. 1. The magistrates of the courts having original jurisdiction of criminal actions in the state, may from time to time appoint a person or persons to perform tlie duties of probation officer or officers as hereinafter described, within the jurisdiction of the courts of such magistrates and under the direction of such magistrates, to hold such office during the pleasure of the magistrate or magistrates making such appointment and of their successors. Such probation officer or officers may be chosen from among the officers of a society for the prevention of cruelty to children or of any charitable or benevolent institution, society or association now or hereafter duly incorporated under the laws of this state, or be reputable private citizens, male or female. The appointment of a probation officer must be made in writing and entered on the records of the court of the magistrate or magistrates making such appointment, and copies of the order of appointment must be delivered to the officer so appointed and filed with the state probation commission. Any officer or member of the police force of any city or incorporated village who may be detailed to do duty in such courts, or any constable or peace officer, may be appointed as probation officer upon the order of any magistrate as herein provided. Whenever in a city of the first class members of the police force have been appointed probation officers as hereinabove provided and are serving as probation officers under the direction of a majority of the members of a. board of city magistrates, the commissioner of police upon the request of any other magistrate of Buch board shall detail to such other magistrate a member of the police force who may COUKTS HAVING OKIGINAL JUEISDICTION. 563 be appointed by such magistrate as a probation officer. No probation officer appointed under the provisions of this section shall receive compensation for his services as such probation officer until allowed by proper ordinance or resolution, as hereinafter pre- scribed, but this shall not be construed to deprive any officer or member of the police force, or any constable or peace officer, appointed probation officer as herein provided, from receiving the salary or compensation attached to his said official employment. The board of estimate and apportionment in the city of New York and the appropriate municipal board or body of any other city or village, or the board of supervisors of any county, may in their discretion determine whether probation officers, not detailed from other branches of the public service, shall receive a salary, and if they shall so determine, they may fix the amount thereof and provide for its payment, and they may also provide for the necessary expenses of probation officers. Whenever provision is made for the payment of a salary by the appropriate municipal board or body in any city or village to a probation officer who is to be attached to a court presided over by a magistrate sitting alone, the appointment of such probation officer shall be made by that magistrate. Whenever provision is made for the payment of a salary by the appropriate municipal board or body in any city or village to a probation officer who is to serve in a court wherein several magistrates are sitting together, or in rotation, or in a court or courts wherein there is a board of magistrates, the appointment of such probation officer shall be made by all the magistrates jointly, or by a majority thereof, except that when a probation officer is to serve in a division of a court in which there is a board of magistrates the appointment shall be made by all the magis- trates of such board jointly, or by a majority thereof. Whenever provision is made for the payment of a salary to a probation officer by the board of supervisors of any county, such probation officer shall be appointed by the county judge, or if there be more than one county judge, by the county judges jointly, of such county, and such probation officer shall serve in the supreme and county courts of that county, and in any other courts in the county at the request of the magistrates holding such othsr courts, except the courts of criminal jurisdiction of cities of the first and second class. 2. Duties. Every probation officer, when so directed by the court, or by a magistrate of the court, in which he is serving, shall inquire into the antecedents, character, and circumstances of any person of persons accused within the jurisdiction of such court, iind into the mitigating or aggravating circumstances of the offense of such person, and shall report thereon in writing to such court or magistrate. The term " proba- tioner " shall mean a person placed on probation. It shall be the duty of every probation officer to furnish to all persons placed on probation under his supervision a statement of the period and conditions of their probation, and to instruct them concerning the same; to keep informed concerning their conduct and condition; to aid and encourage them by friendly advice and admonition, and by such other measures, not inconsistent with the conditions imposed by the court or magistrate, as may seem most suitable, to bring about improvement in their conduct and condition; to report in writing at least monthly concerning their conduct and condition to the court having jurisdiction over such probationers, or to a magistrate thereof; to keep records of their work; to keep accurate and complete accounts of all moneys collected from probationers, to give receipts therefor and to make at least monthly returns thereof; to perform such other duties in connection with such probationers as the court or magistrate may direct; and to make such reports to the state probation commission as the commission may require. Any probation officer may act as parole officer for any state penal or reformatory institution when so requested by the authorities thereof, and when requested by the county judge shall act as parole officer over persons released on parole under section nine hundred and ten. 3. Powers. Every probation officer may require such reports by probationers under his care as are reasonable or necessary and not inconsistent with the conditions imposed 564 CODE OF CRIMINAL PROCEDURE. by the court or magistrate. Every probation officer shall have, as to persons placed tm probation under his care, the powers of a peace officer. 4. Methods of procedure. When any court suspends sentence and places a defendant on probation it shall determine the conditions and period of probation, which period of probation shall not exceed, in the cases of children, their eighteenth birthday; in the case of any other defendant convicted of an oflFense less than a felony, two years; and in the case of any other defendant convicted of a felony, five years. The conditions of probation shall be such as the court shall in its . discretion prescribe, and may include among other conditions any or several of the following: That the probationer (a) shall indulge in no unlawful, disorderly, injurious or vicious habits; (b) shall avoid places or persons of disreputable or harmful character; (c) shall report to the probation officer as directed by the court or probation officer; (d) shall permit the probation officer to visit him in a reasonable manner at his place of abode or else- where; (e) shall answer any reasonable inquiries on the part of the probation officer concerning his conduct or condition; (f) shall, if a child of compulsory school age, attend school; (g) shall, if an adult, or if a child but not required to attend school, work faithfully at suitable employment; (b) shall remain or reside within a specified place or locality; (i) shall abstain for a reasonable period from the use of alcoholic beverages, if the use of the same contributed to his offense; (j) shall pay in one or several sums a fine imposed at the time of being placed on probation; (k) shall make reparation or restitution to the aggrieved parties for actual damages or losses caused by his offense; and (1) shall support his wife or children. The court or a magistrate thereof may modify the conditions and the period of probation ; may in case of viola- tion of the probationary conditions issue a warrant for the arrest of the probationer; and may at any time discharge the probationer; and in case of violation of the probationary conditions, the court may impose any penalties which it mi^ht have imposed before placing the defendant on probation, provided that, if committed, he be committed to an institution authorized by law to receive commitments for the offense of which he was originally convicted, and of persons of his age at the time of his commitment. If a probationer without permission disappears from oversight, or departs from the jurisdiction of the court, the time during which he keeps his where- abouts hidden or remains away from the jurisdiction of the court may be added to the original period of probation. 5. Transfers. A court or magistrate may transfer a probationer from the super- vision of one probation officer to that of another probation officer, and such transfer shall be reported by the court or magistrate to both of such probation officers and to the probationer, and a record of the transfer shall be filed with the records of the case. Whenever a probationer resides in a county other than the county in which he has been convicted and placed on probation, or whenever a probationer desires to remove to a county other than tliat in which he has been placed on probation, and it seems likely that such removal will promote his welfare and will not make him a menace or public charge to such other county, the court placing him on probation, or a magistrate thereof, may transfer him to a salaried probation officer of the city or county to which the probationer is to move, provided such probation officer sends the court or magistrate desiring to make such transfer a written statement that he will exercise supervision over the probationer, and provided such statement is approved in writing by the magistrate of the court to which such probation officer is attached. Such probation officer shall report concerning the conduct and condition of such probationer to the court or magistrate maldng the transfer. (Amended by L. 1909, ch. 482, and L. 1910, ch. 610, in effect Sept. 1, 1910.) COUETS HAVING OEIGINAL JUKISDICTION. 565 TITLE IV. OP THE CITY COUBTS. CHAPTER I. THE CITY COUETS. Section 31. City courts. 32. By whom held. § 31. City courts. The city courts having original criminal jurisdiction, are the recorder's court of Utica, the recorder's court of Oswego, and the mayor's court of Hudson. Their juris- diction in criminal matters is defined by special statutes, and continues as thus defined. § 32. By whom beld. These courts for the exercise of their criminal jurisdiction must be held by the following officers : 1. The city courts of Utica and Oswego by the recorders of those cities respectively. 2. The mayor's court of Hudson, by the mayor of that city. TITLE VI. OF THE COUETS OF SPECIAl SESSIONS AND POIJCE OOUBTS. Chaptb^ I. The special sessions except in the cities of New York and Albany. II. The special sessions in the city and county of New York. III. The special sessions of the city of Albtiny. IV. The police courts. CHAPTER I. THE SPECIAL SESSIONS, EXCEPT IN THE CITIES OP NEW YOEK AND ALBANY. Section 56. Jurisdiction of courts of special sessions. 57. Removing case to grand jury. 58. Procedure in such cases. 59. Trial and punishment of certain crimes. 60. Special sessions in Brooklyn. 61. Id.; in Oswego. 62. By whom held. 63. Recorder of a city to hold court. § 56. Jurisdiction of courts of special sessions. Subject to the power of removal provided for in this chapter, courts of special sessions, except in the city and county of New York and the city of Albany, have in the first instance exclusive jurisdiction to hear and determine charges of misdemeanor committed within their respective counties, as follows: 1. Petit larceny, charged as a first offense. 2. Assault in the third degree. 566 CODE or CEIMESTAL PEOCEDUKE. 3. Racing, running or testing the speed of any animal within one mile of the place ■where any. court is held. 4. Wrongfully severing any produce or article from the freehold, not amounting to grand larceny. 5. Selling poisonous substances not labeled as required by law. 6. Wrongfully and maliciously removing, defacing or cutting down monuments or marked trees. 7. Wrongfully destroying or removing mile-stones, mile-boards or guide-boards, or altering or defacing any inscription thereon. 8. Wrongfully destroying any public or toll-gate, or turn-pike gate. 9. [Am'd., 1890.] Intoxication of a person engaged in running any locomotive engine upon any railroad, or while acting as a conductor of a car or train of cars, on any such railroad, or a misdemeanor committed by any person on a railroad car or train. 10. Setting up or drawing unauthorized lotteries, or printing and publishing an account of any such illegal lottery, game or device, or selling lottery tickets, or pro- curing them to be sold, or offering for sale or distributing any property depending upon any lottery, or for selling any chances in any lottery contrary to the provisions of law. 11. Unlawfully running, trotting or pacing horses or any other animals. 12. Making or selling slung-shot or any similar weapon. 13. Unlawfully disclosing the finding of an indictment. 14. Unlawfully bringing to or carrying letters from any county jail, penitentiary or state prison. 15. Unlawfully destroying or injuring any mill-dam or embankment necessary for the support of such dam. 16. [Am'd., 1905.] Unlawfully injuring any telegraph or telephone wire, post, pier, abutment, materials or property belonging to any line of telegraph or telephone, wilfully giving a false alarm of fire, or wilfully tampering, meddling or interfering with any station or box of any fire alarm telegraph or telephone system, or injuring any box, station, wires, poles, supports and appliances connected with or forming a part of any fire alarm telegraph or telephone system. 17- Unlawfully counterfeiting any representation, likeness, similitude or copy of a private stamp, wrapper or label of any mechanic or manufacturer. 18. [Am'd., 1889.] Malicious trespass on lands, trees or timber, or injuring any fruit or ornamental or shade trees or vines. 19. Maliciously breaking or lowering any canal walls, or wantonly opening any lock- gate, or destroying any bridge, or otherwise unlawfully injuring such canal or bridge. 20. Unlawfully counterfeiting or defacing marks on packages. 21. Unlawfully setting fire to wood or fallow land, or allowing the same to extend to lands of others, or unlawfully refusing to extinguish any fire. 22. Unlawfully or negligently cutting out, altering or defacing any mark on any logs, timber, wood or plank floating in any waters of this state, or lying on the banks or shores of any such waters, or at any saw-mills, or on any island where the s.ame may have drifted. 23. Unlawfully frequenting or attending a steamboat landing, railroad depot, church, banking institution, broker's office, place of public amusement, auction room, store, auction sale or private residence, passenger car, hotel, restaurant, or any other gather- ing of people. 24. Unlawfully taking and carrying away the oysters of another, lawfully planted upon the bed of a river, hay, sound or other waters within the jurisdiction of this state. 25. Kemoving property out of the county, with intent to prevent the same from being levied upon by execution, or secreting, assigning, conveying or otherwise disposing ,of property with intent to defraud any creditor, or to prevent the property being made liable for the payment of debts, or for receiving property with such intent. COUETS HAVING OKIGINAL JUKISDICTIOK 567 26. [Am'd, 1901, 1902.] Driving any carriage upon any turnpike, road or high- way for the purpose of running horses; or wilfully and without authority riding » Wcycle upon a sidewalk or foot-path constructed, maintained, or allowed to remain for the exclusive use of pedestrians, in any street where a sidepath for bicycles is maintained outside of an incorporated city or village; or for dfiving or operating any automobile or motor vehicle upon any plank road, turnpike or public highway at an unlawful rate of speed. 26a. [Added, 1918.] Reckless driving in violation of subdivision one of section fourteen of the general highway traflSo law. 27. tA.m'd, 1905, 1909.] Cruelty to animals or children or offenses of children under section twenty-one hundred and eighty-six of the penal law. 28. Cheating at games. 29. Winning or losing at any game or play, or by any bet, as much as twenty-five dollars within twenty-four hours. 30. Selling liquors in a court-house or jail contrary to law. 31. [Added, 1893.] Exposure of 'the person contrary to law. 32. [Am'd, 1889.] Crimes against the provisions of existing laws for the preven- tion of wanton or malicious mischief. • 33. [Am'd, 1889.] When a complaint is made to, or a warrant is issued by, a committing magistrate for a violation of the laws relating to excise and the regulation of taverns, inns or hotels, or for unlawfully selling or giving to any Indian spirituous liquors or intoxicating drinks. 34. [Am'd, 1889.] Frauds on hotel, inn, tavern and boarding-house keepers. 35. [Am'd, 1896, 1906.] All violations of the provisions of the agricultural, poor and general business laws. 36. [Added, 1903, Am'd, 1909.] When a complaint is made to or a warrant is issued by a committing magistrate for a violation of the provisions of section forty- three or seven hundred and twenty of the penal law of the State of New York. 37. [Am'd, 1903.] Such other jurisdiction as is now provided by special statute or municipal ordinance authorized by statute. 38. [Am'd, 1903.] When a complaint is made to or a warrant is issued by a committing magistrate for any misdemeanor not included in the foregoing subdivisions of this section, if the accused shall elect to be tried by a court of special sessions, as provided by section two hundred and eleven. But tkis subdivision shall not apply to any misdemeanor punishable by a fine exceeding fifty dollars, or by imprisonment exceeding six months, 39. [Added, 1906.] All violations of the law regulating the Junk business and requiring persons engaged in such business to procure a license. § 56a. [Added, 1909.] EzclnsiTe jurisdiction. Courts of special sessions shall have exclusive jurisdiction to try and determine, according to law, all complaints for violations of sections twelve hundred and twenty- one, nineteen hundred and twelve and nineteen hundred and thirteen of the penal law. § 57. [Am.'d, 1909.] Removing case to grand jury. Upon filing with the magistrate, before whom is pending a charge for any of the crimes specified in section fifty-six, a certificate of the county judge of the county, or of any justice of the supreme court, that it is reasonable that such charge be prosecuted by indictment, and fixing the sum in which the defendant shall give bail to appear before the grand jury; and upon the defendant giving bail, as specified in the certifi- cate, all proceedings before the magistrate shall be stayed; and he shall, within five days thereafter, make a return to the district attorney of the county of all proceedings had before him upon the charge, together with such certificate and the undertaking 568 CODE OF CEIMINAL PEOCEDURE. given by the defendant thereon; and the district attorney shall present such charge to the grand jury; provided, however, that no such certificate shall he given except upon at least three days' notice to the complainant or to the district attorney of the county of the time and place for the application therefor. § 58. Iiimitation. When a person is brought before a magistrate charged with the commission of any of the crime-5 mentioned in section fifty-six, and asks that his case be presented to the grand jury, the proceedings shall be adjourned for not less than five nor more than ten days, and if on or before the adjourned day the certificate mentioned in section fifty- seven is not filed with the magistrate before whom the charge is pending, and bail given by the defendant as therein prescribed, the magistrate shall proceed with the trial, and when the defendant is brought before the magistrate, it shall be the duty of the magistrate to inform him of his rights under section fifty-seven and this section. § 59. Trial and punishment of certain crimes. A court of special sessions having jurisdiction in the place where any of tlie crimes specified in section fifty-six is committed has jurisdiction to try and determine a com- plaint for such crime, and to impose the punishment prescribed upon conviction, unless the defendant obtains the certificate and gives the bail mentioned in section fifty-seven. § 60. Special sessions in Brooklyn. Subject to the power of removal provided for by sections fifty-seven and fifty-eight of this code, the courts of special sessions in the city of Brooklyn shall, in the first instance, have jurisdiction, except in case of public officers and conspiracy, to try and determine all complaints made before them, or before a police magistrate, or justice of the peace, for misdemeanor committed in said city, where the term of imprisonment does not exceed one year, with or without fine, and to impose the same punishment as is authorized by statute in like cases to be inflicted by the county court of the county of Kings. Where any jury is required for the trial of any crime or misdemeanor in said courts of special sessions in the city of Brooklyn, the said court shall have power to summons as many jurors as the court may deem necessary for the trial of such action or misdemeanor. The said court of special sessions in the city of Brooklyn shall have power to take bail in a reasonable amount for all misdemeanors and shall have power to take undertakings in bail, either with or without the defendant thereon in the discretion of the said courts. All fines imposed by the said courts of special sessions in the city of Brooklyn, or by police magistrates in said city, upon defendants con- victed in said courts or by such magistrates, of crimes, misdemeanors or violations of any city ordinance of the city of Brooklyn, which are paid by such defendants so con- victed, to the sheriflF of the county of Kings or to the keeper of the penitentiary of said city, shall be paid monthly by the said sheriff or said keeper, to the respective clerks of the courts in which the said fines were imposed; provided, however, that the said sheriff or keeper of the penitentiary of Kings county may, in his discretion, pay all of such fines so paid to them, or either of them, directly to the city treasurer of the city of Brooklyn. In an examination held in any criminal proceeding by a police magistrate in the city of Brooklyn, the testimony of each witness may, in the discretion of the magistrate, be taken as a deposition by the oflficial stenographer of the court in which said magistrate holds such examination. Such minutes of the testimony, when so taken and when certified by the stenographer and by the magistrate who held such examination, shall, both with reference to such examination, and in all procedure in connection with such examination, provided for by any section of this code, not incon- sistent herewith, be regarded as actually taken down in writing by such magistrate and subscribed by the witness or witnesses at such examination. COUKTS HAVING OKIGINAL JUEISDICTION. 569 § 61. Special sessions in Osirego. The court of special sessions in the city of Oswego, where held by the recorders has also jurisdiction over all cases of offences, crimes against public decency, selling unwholesome provisions, cheats, breaches of the peace, disobeying the commands of officers to render assistance in criminal cases, obstructing officers in the discharge of their duties, adulterating distilled spirits, not delivering marked property, defacing marks or putting false marks on floating timber, all violations against the laws and ordinances of or applicable to the city, when such violation is a misdemeanor, and all attempts to commit any crimes herein named or referred to when such attempt is a misdemeanor. § 62. By whom held. Unless provision is otherwise made by law, a court of special sessions must be held by one justice of the peace of the town or city in which the same is held, and sections two hundred and ninety- three, two hundred and ninety-four, two hundred and ninety- five, three hundred and ten, three hundred and thirty-two, three hundred and thirty- three, three hundred and thirty-four, three hundred and thirty-five, three hundred and thirty-six, three hundred and thirty-seven, three hundred and thirty-eight, three hun- dred and thirty-nine, three hundred and forty, three hundred and forty-one, three hundred and forty-two and three hundred and fifty-nine to four hundred and fifty, both inclusive, shall apply as far as may be to proceedings in all courts of special sessions or police courts. § 63. Becarder of a city to hold conrt. A recorder of a city has power to hold a court of special sessions therein. CHAPTER II. THE SPECIAL SESSIONS IN THE CITY AND COUNTY OF NEW TOBK. Section 64. Jurisdiction. 64a. Exclusive jurisdiction. 65. Seal. § 64. Jurisdiction. The court of special sessions in the city of New York, within their respective divi- sions, have jurisdiction: 1. Such is conferred on them by the Greater New York charter and other existing statutes. 2. To send process and other mandates in any matter of which they have jurisdic- tion into any county of the state, for service or execution, in like manner and with the same force and effect as similar process or mandates of the court of general sessions of the city and county of New York, and of county courts in counties other than New York, as provided by the code; and particularly, to compel the attendance of witnesses to order the conditional examination of witnesses, to issue commissions for the examina- tion of witnesses without the state, to inquire into the insanity of a defendant and to dismiss the prosecution of an action in like manner as the prosecution of actions by indictment may be dismissed, conformably to the provisions of title twelve of part four of this code. § 64a. [Added, 1909.] ExclnsiTC jurisdiction. Court of special sessions shall have exclusive jurisdiction to try and determine, according to law, all complaints for violations of section twelve hundred and twenty- one, nineteen hundred and twelve and nineteen hundred and thirteen of the penal law. 5^0 CODE OF CEIMIlsrAL PKOCEDUKE. § 65. Seal. The seal heretofore provided for the courts of special sessions in said city on which is engraved the arms of the state and the words " court of special sessions of the city of New York " with the number of the division of the court, shall continue to be the seal of the court, and all process issued by said court shall be sealed with the said seal and signed by the clerk of said court. [Amended by L. 1904, chap. 563.] CHAPTER III. THE SPECIAL SESSIONS IN THE CITY OF ALBANT. Section 68. Jurisdiction. 68a. Exclusive jurisdiction. 69. Recognizances returnable, where. 70. When persons held to trial. 71. Officers to attend. 72. Clerk. 73. Court, when and where held. § 68. Jurisdiction. The court of special sessions in the city of Albany has jurisdiction: 1. To try and determine all cases of petit larceny charged as a first offence, and all misdemeanors, not being infamous crimes, committed within the city, when a person accused of such crime or misdemeanor demands to he tried before such court of special sessions held by the recorder of said city, instead of before a police justice; 2. To take recognizances to appear before the court at a succeeding term from per- sons charged with a crime or misdemeanor, or triable therein. 3. To impose and enforce sentence of fine or imprisonment, or both, in the discretion of the court, and all cases within its jurisdiction, upon conviction to the same extent as the county court of the county of Albany could do in like cases. 4. To punish a contempt of court in the same manner and to the same extent as the supreme court could do in like cases. 5. In cases where a jury trial is remanded by a defendant, to draw from the jury box containing the names of jurors who reside in the city of Albany, such number of names as the recorder or county judge may direct, and to require the sheriff of the county to summons the persons so drawn to appear at the time designated for trial, to impanel a jury of twelve men, to require the attendance of additional jurors and to punish a juror or witness neglecting to appear, in the same manner and to the same extent as the supreme court could do in like cases. 6. On the motion of the district attorney, to issue a warrant for the arrest of a per- son who neglects to appear agreeably to the requirements of a recognizance to appear thereat, commanding the officer executing the same to bring the party forthwith before the court, if in session, otherwise to commit him to the common jail of the county, there to remain until delivered by due course of law. § 6S-a. [Added, 1909.] Esclusive jurisdiction. Courts of special sessions shall have exclusive jurisdiction to try and determine, according to law, all complaints for violations of sections twelve hundred and twenty- one, nineteen hundred and twelve and nineteen hundred and thirteen of the penal law. COUKTS HAVING OEIGINAL JUKISDICTION. 571 § 69. Recognizances returnalile, trbere. Upon charges for offences triable by this court, the police magistrate or any other magistrate in the city hearing the same, shall, if ordered, take recognizances in the cases provided by law returnable at the court of special sessions; and all such recog- nizances as shall have been so taken shall be returned to and filed with the district attorney of the county of Albany. If no such recognizance be offered, the magistrate or magistrates shall commit the defendant to the common jail of the county of Albany until he shall be thence delivered in due course of law, and the trial of such person shall be had before the court of special sessions, except that where a police justice or other magistrate of the city has jurisdiction, the defendant may elect to be tried before such police justice or other magistrate. § 70. When persons held for trial. Whenever a person is brought before a police justice or other magistrate of the city, charged with any of the following crimes, viz. : Petit larceny charged as a first offense, offenses against the laws relating to excise and the regulation of taverns, inns and hotels, offences being misdemeanors against the laws relating to gaming, assaults upon, and interference with a public officer in the discharge of his duty, and it shall appear to the magistrate that the crime has been committed and that there is sufficient cause to believe the defendant guilty thereof the magistrate must order him to be held to answer the charge before the court of special sessions. § 71. Officers to attend. The court of special sessions in the city of Albany must be held by the recorder of the city, with or without one or more of the justices of the peace to be associated with him. In case of the absence or inability of the recorder to act, the county judge of the county of Albany must act in his place. If the recorder and county judge are both unable, by reason of absence or other cause, to hold the court, the clerk must adjourn the court to the next following Tuesday, and continue such adjournments until the recorder or county judge attends. Not more than two officers shall be designated or appointed by the sheriff or other authority to attend the court of special sessions of the city of Albany, unless the court shall, by an order entered in its minutes, require the attend- ance of a greater number. § 72. Clerk. The county clerk of Albany county is clerk of the court of special sessions of the city of Albany, and must attend the same in person or by deputy. § 73. Court, -when and where held. The court of special sessions of the city of Albany must be held at the city hall in the city of Albany on Tuesday of each week, and may be held and continued for such length of time as it deems proper. 572 CODE OF CEIMINAL PKOCEDUKE. CHAPTER IV. THE POLICE COUKTS. Section 74. Jurisdiction. 75. Election of justices. 76. Justice to take and file oath of oflBce, etc. 77. Justice, how to hold office. 78. Compensation of justice. § 74. Jurisdiction. Police justices have such jurisdiction, and such only, as is specially conferred upon them by statute. The courts held by police justices are called police courts, and courts of special sessions are also called police courts, and are so designated in different parts of the code. §§ 75, 76, 77. [Repealed. Chap. 414, Laws of 1897.] § 78. Compensation of justice. A police justice cannot retain to his own use any costs or fees, but may receive for his service an annual salary, to be fixed in villages by the board of trustees, and in cities by the common council, except where the same is otherwise fixed by law; and such salary shall not be increased or decreased during his term of office. THE PREVENTION OF CEIME. 573 PART II. Op the Pbevention of Crime. TITLE I.— Of Lawful Eesistance. TITLE II. — Of the Intervention of the Officers of Justice. TITLE I. OF LAWFUL EESISTANCE. Chapteb I. General Provisions respecting lawful resistance. II. Resistance by the party about to be injured. III. Resistance by other parties. CHAPTER I. GENERAL PROVISIONS RESPECTING LAWFUL RESISTANCE. Section 791 Lawful resistance; by whom made § 79. Lavrtnl resistance; by irhoiu made. Lawful resistance to the commission of a crime may be made: 1. By the party about to be injured; 2. By other parties. CHAPTER II. RESISTANCE BT THE PARTY ABOUT TO BE INJURES). Section 80. In what cases; to what extent. § 80. In Trbat cases; to ivhat extent. Resistance sufficient to prevent the crime may be made by the party about to be injured : 1. To prevent a crime against his person ; 2. To prevent an illegal attempt by force to take or injure property in his lawful possession. CHAPTER III. RESISTANCE BY OTHER PARTIES. Section 81. In what cases. § 81. In what cases. Any other person, in aid or defense of the person about to be injured, may make resistance sufficient fo prevent the injury. 574 CODE OF CEIMINAL PEOCEDUEE. TITLE II. OP THE INTEKVENTION OF THE OFFICERS OF JTTSTICE. Chapter I. Intervention of public officers in general. II. Security to keep the peace. III. Police in cities and villages, and their attendance at exposed places. IV. Prevention and suppression of riots. CHAPTER I. intbsbvention of public officers in genekai,. Section 82. In what cases. 83. Persons acting in their aid, justified. § 82. In irhat cases. Crimes may be prevented by the intervention of the officers of justice: 1. By requiring security to keep the peace; 2. By forming a police in cities and villages, and by requiring their attendance in exposed places; 3. By suppressing riots. § 83. Persons acting in their aid, justified. When the officers of justice are authorized to act in the prevention of crime, ot&er persons, who by their command act in their aid, are justified in so doing. CHAPTER II. SECURITY TO KEEP THE PEACE. Section 84. Information of threatened crime. 85. Examination of complainant and witnesses. 86. Warrant of arrest. 87. Proceedings, on complaint being controverted. 88. Persons complained of, when to be discharged. 89. Security to keep the peace, when required. 90. Effect of giving or refusing to give security. 91. Person committed for not giving security, how discharged. 92. Undertaking to be transmitted to county court. 93. Security, when required, for assault, etc., in presence of a court or magis- trate. 94. Appearance of party bound, upon his undertaking. 95. Person bound may be discharged, if complainant does not appear. 96. Proceedings in sessions, on appearance of both parties. 97. Undertaking, when broken. 98. Undertaking, when and how to be prosecuted. 98a. Security to keep the peace by convicts. 99. Security of the peace not required except according to this chapter. § 84. Information of threatened crime. An information may be laid before any magistrate that a person has threatened to commit a crime against the person or property of another. THE PKEVENTIOI^ OF CEIME. 575 § 85. Examination of complainant and iritnesses. When the information is laid before a magistrate, he must examine on oath the com- plainant and any witnesses he may produce, and must reduce their examination to writing, and cause them to be subscribed by the parties making them. § 86. Warrant of arrest. If it appears from such examination that here is just reason to fear the commission of the crime threatened, by the person complained of, the magistrate must issue a war- rant, directed generally to the sheriff of the county, or any constable, marshal or police- man of the city or town, reciting the substance of the information, and commanding the officer forthwith to arrest the person complained of, and bring him before the magistrate. § 87. Proceedings, on complaint being controverted. When the person complained of is brought before the magistrate, if the charge be controverted, the magistrate must take testimony in relation thereto. The evidence must be reduced to writing, and subscribed by the witnesses. § 88. Person complained of, \rlien to be discharged. If it appear that there is no just reason to fear the commission of the crime alleged to have been threatened, the person complained of must be discharged. g 89. Security to keep the peace; irhen required. If, however, there be just reason to fear the commission of the crime, the person complained of may be required to enter into an undertaking, in such sum, not exceed- ing one thousand dollars, as the magistrate may direct, with one or more sufficient sureties, to abide the order of the next county court of the county, held for the trial of indictment, and in the meantime to keep the peace toward the people of this state, and particularly towaid the complainant. § 90. EfBect of giving or refusing security. If the undertaking required by the last section be given, the party complained of must be discharged. If it is not given, the magistrate must commit him to prison, specifying in the warrant, the cause of commitment, the amount of security required, and the omision to give the same. § 91. Person committed, how discharged. If the person complained of be committed for not giving security, he may be dis- charged by any two justices of the peace of the county, or police or special justices of the city, upon giving the security. § 92. Undertaking to be transmitted to county court. An undertaking given as provided in section eighty-nine, must be transmitted by the magistrate to the next term of the county court of the county. § 93. Security for assault, in presence of court, etc. A person who, in the presence of a court or magistrate, assaults or threatens to assault another, or to commit a crime against his person or property, or who contends with another in angry words, may be thereupon ordered by the court or magistrate, to give security as provided in section eighty-nine, or if he refuses to do so, may be com- mitted as provided in section ninety. 576 CODE OF CKIMi:tfAL PKOCEDUEE, § 94. Appearance of party bound, etc. A person who has entered into an undertaking to keep the peace, must appear on the first day of the next term of the county court of the county. If he do not, the court may forfeit his undertaking, and order it to be prosecuted, unless his default be excused. § 95. Discbarge, if complainant does not appear. If the complainant do not appear, the person complained of may be discharged, unless good cause to the contrary be shown. § 96. Proceedings in sessions, on appearance of botb parties. If both parties appear, the court may hear their proofs and allegations, and may either discharge the undertaking, or require a new one, for a time not exceeding one year. § 97. Undertaking, wben broken. An undertaking to keep the peace is broken, on the failure of the person complained of to appear at the county court, as provided in section nijiety-four, or upon his being convicted of any crimes involving a breach of the peace. § 98. Undertaking, xrben and hov prosecuted. Upon the district attorney producing evidence of such conviction to the county court to which the undertaking is returned, that court must order the undertaking to be prosecuted; and the district attorney must thereupon commence an action upon it in the name of the people of the state. § 98-a. [Added, 1909.] Security to keep the peace by convicts. Every court of criminal jurisdiction, before which any person shall be convicted of any criminal offence, not punishable with death or imprisonment in a state prison, shall have power, in addition to such sentence as may be prescribed or authorized by law, to require such person to give security to keep the peace, or to be of good behavior, or both, for any term not exceeding two years, or to stand committed until such security be given. But this section shall not extend to convictions for writing or publishing any libel; nor shall any such security be hereafter required by any court, upon any complaint, prosecution or conviction, for any such writing or publishing. No recog- nizance given under this section, shall be deemed to be broken, unless the principal therein be convicted of some offence amounting in judgment to law, to a breach of such recognizance. The same proceedings for the collection of such recognizance when for- feited, shall be had as are prescribed in the preceding sections of this chapter, in rela- tion to recognizances to keep the peace. g 99. Security for the peace not required except according to this chapter. Security to keep the peace or be of good behavior, cannot be required, except as prescribed in this chapter. CHAPTER III. POLICE IN CITIES AND VILLAOBS, AND THEIR ATTENDANCE AT EXPOSED PLACES. Section 100. Organization and regulation of the police. 101. Force to preserve the peace, at public meetings when and how ordered. g 100. Organization and regulation of the police. The orgainization and regulation of the police in the cities and villages of this state are governed by special statutes. THE PREVEKTIOX OF CEIME. 577 § 101. Foroe to preserve the peace at public meetings, when and ho'Mr ordered. The mayor or other officer having the direction of the police in a city or village, must order a foroe, sufficient to preserve the peace, to attend any public meeting, when he is satisfied that a breach of the peace is to be apprehended. CHAPTER IV. PBEVENTION AND SUPPRESSION OF BIOTS. Section 102. Powers of sheriff or other officer, in overcoming resistance to process. 103. His duty to certify to court the names of resisters and their abettors. 104. Duty of a person commanded to aid the officer. 105. When governor to order out a military force, to aid in executing process. 106. Magistrates and officers to command rioters to disperse. 107. To arrest rioters, if they do not disperse. 108. Consequences of refusal to aid the magistrates or officers. 109. Consequences of neglect or refusal of a magistrate or officer to act. 110. Proceedings, if rioters do not disperse. 111. Officers who may order out the military. 112. Commanding officers and troops to obey the order. 113. Armed force to obey orders. 114. Conduct of the troops. 115. Governor may, in certain cases, proclaim a county in a state of insur- rection. 116. May call out the militia. 117. May revoke the proclamation. § 102. Potvers of sheriff or other officer in overcoming resistance to process. When a sheriff or other public officer, authorized to execute process, has reason to apprehend that resistance is about to be made to the execution of the process, he may command as many male inhabitants of his county as he thinks proper, to assist him in overcoming the resistance, and, if necessary, in seizing, arresting and confining the resisters and their aiders and abettors, to be punished according to law. (Amended by L. 1916, ch. 353, in effect May 1. 1916.) § 103. His duty to certify to court the names of resisters and their abettors. The officer must certify to the court from which the process issued the names of the resisters and their aiders and abettors, to the end that they may be proceeded against for contempt. § 104. Duty of a person commanded to aid the officer. Every person commanded by a public officer to assist him in the execution of process, as provided in section one hundred and two, who, without lawful cause, refuses or neglects to obey the command, is guilty of a misdemeanor. § 105. \(rhen governor to order out a military force to aid in executing process. (Repealed by L. 1916, ch. 363, in effect May 1, 1916.) 37 578 CODE or CKIMINAL PKOCEDUEE. § 106. Magistrates and officers to command rioters to disperse. When persons, to the number of five or more, armed with dangerous weapons, or to the number of ten or more, whether armed or not, are unlawfully or riotously assembled in a city, village or town, the sheriff of the county and his under sheriff and deputies, the mayor and aldermen of the city, or the supervisor of the town, or president or chief executive of the village, and the justices of the peace or the police justices of the city, village or town, or such of them as can forthwith be collected, must go among the persons assembled and command them, in the name of the people of the state, immediately to disperse. § 107. To arrest rioters, if they do not disperse. If the persons assembled do not immediately disperse, the magistrates and officers must arrest them, or cause them to be arrested, that they may be punished according to law; and for that purpose, may command the aid of all persons present or within the county. § 108. Consequences of refusal to aid the magistrates or officers. If a person so commanded to aid the magistrates or officers, neglects to do so, he is deemed one of the rioters, and is punishable accordingly. § 109. Consequences of neglect or refusal of a magistrate or officer to act. If a. magistrate or officer having notice of an unlawful or riotous assembly, men- tioned in section one hundred and six, neglects to proceed to the place of assembly, or as near thereto as he can with safety, and to exercise the authority with which he is invested for suppressing the same and arresting the offenders, he is guilty of a mis- demeanor. § 110. Proceedings, if rioters do not disperse. If the persons assembled, and commanded to disperse, do not immediately disperse, any two of the magistrates or officers mentioned in section one hundred and six, may command the aid of a sufficient number of persons, and may proceed in such manner as in their judgment is necessary, to disperse the assembly and arrest the offenders. § 111. Officers \rho may order out the military. (Repealed by L. 1916, ch. 353, in effect May 1, 1916.) § 112. Commanding officer and troops to ohey the order. (Repealed by L. 1916, ch. 353, in effect May 1, 1916.) § 113. Armed force to obey orders. (Repealed by L. 1916, ch. 353, in effect May 1, 1916.) § 114. Conduct of the troops. (Repealed by L. 1916, ch. 353, in effect May 1, 1916.) § 115. Governor may, in certain cases, proclaim a county in a state of insurrection. When the governor is satisfied that the execution of civil or criminal process has been forcibly resisted in any county, by bodies of men, or that combinations to resist the execution of process by force exist in any county, and that the power of the county has been exerted, and has not been sufficient to enable the officer having the process to execute it, he may, on the application of the officer, or of the district attorney or county THE PKEVENTIO:Nr OF CKIME. 570 judge of the county, by proclamation to be published in the state paper, and in such papers in the county as he may direct, declare the county to be in a state of insurrection. § 116. After proclamation. After the proclamation mentioned in the last section, the governor may order into the service of the state such number and description of volunteer or uniform com- panies, or other militia of the state, as he deems necessary, to serve for such term, and under the command of such officer or officers as he may direct. § 117. May revoke the proclamation. The governor, when he thinks proper, may revoke the proclamation authorized by section one hundred and fifteen, or declare that it shall cease, at the time and in the manner directed by him. 580 CODE OF CEIMmAL PEOCEDUKE. PART III. Op JtTDiciAL Peoceedings foe the Removai, of Public Officers, bt Impeachment, OB Otheewise. TITLE I. — Of Impeachments. TITLE II. — Of the Removal of Justices of the Peace, Police Justices, and Justices of Justices' Courts and their Clerks. TITLE II. OF the removal of justices of the peace, police justices, and justices op justices* COURTS, AND THEIR CLERKS. § 132. [Am'd. 1909.] Jnstices of the peace, police justices, justices of justices' courts and tbeir clerks, removable by tbe appellate division of tbe supreme court. Justices of the peace and judges, and justices of inferior courts, not of record, and their clerks, may he removed, as provided hy the constitution, by the appellate divisioa of the supreme court. The appellate division shall have pov^er to order the proofs upon any proceedings hereunder to be taken before a referee to be appointed by such appellate division and to certify the reasonable expenses of such referee, which amount, so certified, is hereby declared to be a charge against the city, town or village within such justices of the peace, judge, or justice of inferior court, not of record, or clerk, exercises the duties of his office. Such court may also in its discretion require the person or persons instituting proceedings for the removal of either of the officials above named to give security, to be approved by such court, for the expenses incident to the hearing and determination thereof, in case the charges against such official are not sustained. PROCEEDINGS IN CEIMINAL ACTIONS. 581 PART IV. Of the Peoceedings in Ceiminal Actions Peosecuted by Indictment. TITLE I. — Of the local jurisdiction of public oilenses. II- — Of the time of commencing criminal actions. Ill- — Of the information and proceedings thereon to the commitment inclusive. IV- — Of the proceedings after commitment, and before indictment. V- — Of the indictment. VI. — Of the proceedings on the indictment before trial. VII.— Of the trial. VIII. — Of the proceedings after trial before judgment. IX. — Of the judgment and execution. X. — Greneral provisions relating to punishment of crime. XI. — Of appeals. XII. — Of miscellaneous proceedings. TITLE I. OF THE LOCAL JUEISDICTION OF PUBLIC OFFENSES. SliCTlON 133. Where a person leaves this state to elude its laws. 134. When a crime is committed partly in one county and partly in another. 135. When a crime is committed on the boundary of two or more counties or within five hundred yards thereof. 136. Jurisdiction of crime on board a vessel. 137. Of crime committed in the state on board of any railway train, etc. 138. Indictment for libel. 139. Conviction on acquittal in another state, a bar, where the jurisdiction is concurrent. 140. Conviction or acquittal in another county, a bar, where the jurisdiction is concurrent. § 133. 'When a person leaves this state to elude its lairs. A person who leaves this state, with intent to elude any law thereof against duelling or prize-fighting, or challenges thereto, or to do any act forbidden by such a law, or, who being a resident of this state, does an act out of it, which would be punishable as a violation of such a law, may be indicted and tried in any county of this state. § 134. When a crime is committed partly in one county and partly in another. When a crime is committed, partly in one county and partly in another, or the acts or effects thereof, constituting or requisite to the consummation of the offense, occur in two or more counties, the jurisdiction is in either bounty. § 135. When u, crime is committed on the boundary of tiro or more coun- ties, or xrithin five hundred yards thereof. When a crime is committed on the boundary of two or more counties, or within five hundred yards thereof the jurisdiction is in either county. 582 CODE OF CKIMmAL PEOCEDUEE. § 136. Jurisdiction of crime on board a vessel. When a crime is committed in this state on board a vessel navigating a river, lake or canal, or lying therein in the course of her voyage, or in respect to any portion of |he cargo or lading of such boat or vessel, the jurisdiction is in any county through which, or any part of which, such river or canal passes, or in which such lake is situated, or on which it borders, or in the county where such voyage terminates, or would terminate if completed. § 137. Of crime committed in the state on board of any railiray train, etc. When a crime is committed in this state, in or on board of any railway engine, train or car, making a passage or trip on or over any railway in this state, or in respect to any portion of the lading or freightage or any such railway train or engine car, the jurisdiction is in any county through which, or any part of which, the railway train or car passes, or has passed in the course of the same passage or trip, or in any county where such passage or trip terminates, or would terminate, if completed. § 138. Indictment for libel. When a crime of libel is committed by publication in any paper in this state, against a person residing in the state, the jurisdiction is in either the county where the paper is published, or in the county where the party libeled resides. But the defendant may have' the place of trial changed to the county where the libel is printed, on executing a bond to the complainant in the penal sum of not less than $250, nor more than $1,000, conditioned, in case the defendant is convicted, for the payment of the complainant's reas(5hable and necessary traveling expenses in going to and from his place of residence and the place of trial, and his necessary expenses in attendance thereon, which bond must be signed by two sufficient sureties, to be approved by the judge of a court of record exercising criminal jurisdiction. Whenever the crime of libel is committed against a person not a resident of this state, the defendant must be indicted and the trial thereof had in the county where the libel is printed and published. But if the paper does not, upon its face, purport to be printed or published in a particular county of this state, the defendant may be in- dicted and the trial thereof had in any county where the paper is circulated. In no case, however, can the defendant be indicted for the printing or publication of one libel in more than one county of this state. § 139. Conviction or acquittal in another state, a bar, ivhere the juris- diction is concurrent. When an act charged as a crime is within the jurisdiction of another state, terri- tory or country, as well as within the jurisdiction of this state, a conviction or acquit- tal thereof in the former, is a bar to a prosecution or indictment therefor in this state. § 140. Convictions or acquittal in another county a bar, -where the juris- diction is concurrent. When a crime is committed within the jurisdiction of two or more counties of this state, a conviction or acquittal thereof in one county is a bar to a prosecution or indict- ment thereof in another. PKOCEEDINGS I^^ CKIMINAL ACTIONS. 583 TITLE III. OF THE INFORMATION ON PEOCBMJINGS THEEEON TO THE COMMITMENT INCLCSIVE. CHAPTER I.— The information. II. — The warrant of arrest. III. — ^Arrest by an officer under a warrant. IV. — Arrest by an officer without a warrant. V. — Arrest by a private person. VI. — Retailing, after an escape or rescue. VII. — Examination of the case and discharge Of the defendant, or holding him to answer. CHAPTER I. THE INFOBMATION. SECTION 145. Information, defined. 146. Magistrate, defined. 147. Who are magistrates. § 145. Information, defined. The information is the allegation made to a. magistrate, that a person has been guilty of some designated crime. § 146. Magistrate, defined. A magistrate is an officer, having power to issue a warrant for the arrest of a person charged with a crime. § 147. [Am'd. 1892, 1909.] Who are magistrates. The following persons are magistrates: 1. The justices of the supreme court. 2. The judges of any city court. 3. The county judges and special county judges. 4. The city judge of the city of New York, and the judges of the court of general sessions in the city and county of Xew York. 5. The justices of the peace. 6. The police and other special justices appointed or elected in a city, village or town. 7. The mayors and recorders of cities. But in the city of New York, the only magis- trates authorized to commit children to institutions are justices of the supreme court, the recorder, the city judge of the city of New York, and judges authorized to hold the court of general sessions, and the police justices. 8. The judges of the city court of Buffalo. 584 CODE OF CKIMINAL PEOCEBUEE. CHAPTER II. THE WARRANT OF ABREST. Seotiow 148. Examination of the prosecutor and his witnesses, upon the information. 149. Depositions, what to contain. 150. In what case warrant of arrest may be issued. 151. Form of the warrant. 162. Name or description of the defendant, in the warrant and statement of the ofience. 163. Warrant to be directed to and executed by a peace officer. 154. Who are peace officers. 155. Warrant issued by certain judges. 158. Id.; by other magistrates. 157. Indorsement on the warrant, for service in another county, how and upon what proof to be made. 158. Defendant, arrested for felony. 159. Defendant, arrested for a misdemeanor. 160. Proceedings on taking bail from the defendant, in such case. 161. Proceedings, where he is admitted to bail in such case, but bail is not given. 162. Prisoner carried from county to county. 163. Power and privilege of officer. 164. When magistrate issuing the warrant is unable to act. 165. Defendant in all cases to be taken before a magistrate, without delay. 166. Defendant before another magistrate than the one who issued the war- rant. § 148. Examination of the prosecutor, etc. When an information is laid before a magistrate, of the commission of a crime, he must e-xamine on oath the informant or prosecutor, and any witnesses he maj" pro- duce, and take their deposititons in writing, and cause them to be subscribed by the parties making them. § 149. Depositions, irhat to contain. The depositions must set forth facts stated by the prosecutor and his witnesses, tending to establish the commission of the crime and the guilt of the defendant. § 150. In what case a summons or warrant of arrest may be issued. 1. If the magistrate be satisfied, from such depositions, that the crime complained of has been committed, and the crime charged is one of which a court of special sessions has exclusive jurisdiction or is one of the offenses enumerated in section fifty-six, and the person charged with the commission of the crime is a citizen of the state and a resident of the city or town where the information is laid, or if the charge be against a child accused of an offense of the grade of or under section twenty-one hundred and eighty-six of the penal law permitted to be tried as a misdemeanor or an offense for which such child can be found guilty of juvenile delinquency, and in any other case in which the magistrate has power to commit children as provided by law, the magis- PROCEEDINGS m CRIMINAL ACTIONS. 585 trate may, in his discretion, instead of issuing a warrant as hereinafter provided,; issue a summons which shall be substantially in the following form: " court, county of city or town of In the name of the people of the state of New York: To Complaint having been made this day by that you ( here briefly state the nature of offense in regard to which complaint is made), you ai-e hereby summoned to appear before me (here insert title of magistrate issuing sum- mons ) , at ( location of court) on the day of , 19 . . , at o'clock .... M., to the end that an investigation may be made of said complaint; and upon your failure to appear at the time and place herein mentioned, you are liable to a fine of not exceeding twenty-five dollars. Dated at the day of (Here insert official title of magistrate)." Upon said summons shall be indorsed the name of the complainant and of the person summoned and also a brief description of the offense complained of. A record shall be kept of the issuance and disposition of each summons in the same manner as in proceedings under which a warrant is issued. Such summons may be served by the complainant, or by a peace officer, or by any other person designated by the magistrate. Upon the return of the summons the magistrate shall inquire and investigate^ into the subject-matter of the complaint in the same manner as if defendant were brought before the magistrate upon a warrant of arrest. If the person summoned does not appear, such failure to appear shall constitute a contempt, which the magistrate is empowered to punish by a fine of not exceeding twenty-five dollars. 2. If the magistrate be satisfied from such depositions that the crime complained of lias been committed, and that there is reasonable ground to believe that the defendant has committed it, and if the case is one that does not come within the provisions of subdivision one of this section, he must issue a warrant of arrest. If a summons shall hav« been issued as heretofore provided, and the person summoned shall have failed to appear or shall have appeared and the magistrate determines that there is reasonable ground therefor, a, warrant of arrest may be issued. (Amended by L. 1917, ch. 686, in effect Sept. 1, 1917.) § 151. Form of tbe irarrant. A warrant of arrest is an order in writing in the name of the people, signed by a magistrate, commanding the arrest of the defendant, and may be substantially in tlie following form, the blanks being properly filled: " County of In the name of the people of the State of New York, to any peace officer in the Information, upon oath, having been this day laid before me that the crime of has been committed and accusing thereof. You are therefore commanded forthwith to arrest the above-named and bring him before at Dated at this day of , 19 . . . Justice of the Peace." 586 CODE OF CEIMINAL PROCEDUKE. The warrant must direct that the defendant be brought before the magistrate issuing the warrant, or if the offense was committed in another town, and is one of which a court of special sessions has jurisdiction to try, or which a magistrate has jurisdiction to hear and determine, he must direct that the defendant be brought before a magistrate of the town in which the offense was committed. § 152. Name or description o£ the defendant in the 'warrant and statement of the offense. The warrant must specify the name of the defendant, or if it be unknown to the magistrate, the defendant may be designated therein by any name. It must also state an offense in respect to which the magistrate has authority to issue the warrant, and the time of issuing it, and the city, town or village where it is issued, and be signed by the magistrate with his name of office. § 153. Warrant to be directed to and executed by a peace officer. The warrant must be directed to, and executed by, a peace officer. § 154. \(^ho are peace officers. A peace officer is a sheriff of a county, or his under sheriff or deputy, or a constable, marshal, police constable or policeman of a city, town or village. § 155. [Am'd, 1893.] Warrant by certain judges. If the warrant be issued by a judge of the supreme court, recorder, city judge or judge of a court of general sessions in the city and county of New York or by a county judge, or by the recorder of a city where jurisdiction is conferred by law upon such recorder, or by a, judge of the city court, it may be directed generally to any peace officer in the state, and may be executed by any of those officers to whom it may be delivered. § 156. Id.; by other magistrates. If it is issued by any other magistrate, it may be directed generally to any peace officer in the county in which it is issued, and may be executed in that county; or if the defendant be in another county, it may be executed therein, upon the written direction of a magistrate of such other county indorsed upon the warrant, signed by him with his name of office and dated at the cit}', town or village where it is made, to the following effect: "This warrant may be executed in the county of Monroe" [or as the case may be]. § 157. Indorsement on the -warrant, for service in another county, how and upon -what proof to be made. The indorsement mentioned in the last section cannot, however, be made, unless upon the oath of a credible witness, in writing, indorsed on or annexed to the warrant, proving the handwriting of the magistrate by whom it was issued. Upon this proof, the magistrate indorsing the warrant is exempted from liability to a civil or criminal action, though it afterward appear that the warrant was illegally or improperly issued. § 158. Defendant, arrested for felony. If the crime charged in the warrant be a felony the officer making the arrest must take the defendant before the magistrate who issued the warrant, or some other magis- trate in the same coiinty, as provided in section 164. § 159. Defendant, arrested for a misdemeanor. If the crime charged in the warrant be a misdemeanor, and the defendant be arrested in another county, the officer must, upon being required by the defendant, take him PKOCEEDIJSTGS IK CEIMINAL ACTIONS. 587 before a magistrate in that county, who must admit the defendant to bail, for his appearance before the magistrate named in the warrant, and take bail from him accordingly. § 160. Proceedings on taking bail from tlie defendant, in sncli case. On taking bail, the magistrate must certify that fact on the warrant, and deliver the warrant and undertaking of bail to the officer having charge of the defendant. The officer must then discharge the defendant from arrest, and, without delay, deliver the warrant and undertaking to the magistrate before whom the defendant is required to appear. § 161. [Am'd, 1893.] Proceedings, etc., but bail is not given. If, on the admission of the defendant to bail, as provided in section one hundred and fifty-nine, bail be not forthwith given the officer must take the defendant before a magistrate as directed by the warrant, or some other magistrate in the same town or county, as provided in section one hundred and sixty-four. § 162. Prisoner carried from county to county. An officer who has arrested a defendant on a criminal charge, in any coimty, may carry such prisoner through such parts of any county or counties, as shall be in the ordinary route of travel from the place where the prisoner shall have been arrested, to the place where Be is to be conveyed and delivered under the process, by which the arrest shall have been made, and such conveyance shall not be deemed an escape. § 163. Power and privilege of officer. While passing through such other county or counties, the officers having the prisoner in their charge shall not be liable to arrest on civil process; and they shall have the like power to require any citizen to aid in securing such prisoner, and to retake him if he escapes, as if they were in their own county; and a refusal or neglect to render such aid shall be an offense, in the same manner, as if they were officers of. the county where such aid shall be required. § 164. [Am'd, 1893.] 'When magistrate issuing warrant unable to act. When, by the preceding sections of this chapter, the defendant is required to be taken before the magistrate who issued the warrant, or before a magistrate of the town in which the offense was committed, he may, if that magistrate be absent or unable to act, be taken before the nearest or most accessible magistrate in the town in which the magistrate before whom the warrant is returnable resides, if there be such a magistrate accessible and qualified to act, and otherwise, before the nearest or most accessible magistrate in the same county. The officer must, at the same time, deliver to the magistrate the warrant, with his return indorsed and subscribed by him. § 165. [Am'd, 1887.] Defendant, upon arrest, to be taken before magis- trate. The defendant must in all cases be taken before the magistrate without unnecessary delay, and he may give bail at any hour of the day or night. 6 166. Defendant before another magistrate than the one who issued the warrant. If the defendant be taken before a magistrate other than the one who issued the warrant, the depositions on which the warrant was granted must be sent to that magis- trate, or if they cannot be procured, the prosecutor and his witnesses must be sum- moned to give their testimony anew. 588 CODE OF CKIMINAL PEOCEDUKE. CHAPTER III. ABBEST BY AN OFFICEE UNDEB A WABBANT. Section 167. Arrest defined. 168. By whom an arrest may be made. , 169. Every person bound to aid a;i officer in an arrest. 170. When the arrest may be made. 171. How an arrest is made. 172. No further restraint allowed, than is necessary. 173. Officer must state his authority, and show warrant, if required. 174. If defendant flee or resist, officer may use all necessary means to effect arrest. 175. When officer may break open a door or window. 176. Outer or inner door § 167. Arrest defined. Arrest is the taking of a person into custody that he may be held to answer for a crime. § 168. By -nrbom an arrest may be made. An arrest may be, 1. By a peace officer, under a warrant; 2. By a peace officer, without a warrant ; or 3. By a private person. § 169. Every person bound to aid an officer in an arrest. Every person must aid an officer in the execution of a warrant, if the officer require his aid and be present and acting in its execution. § 170. When the arrest may be made. If the crime charged be a felony, the arrest may be made on any day, and at any time of the day or during any night. If it be a misdemeanor, the arrest cannot be made on Sunday, or at night, unless by direction of the magistrate indorsed upon the warrant. § 171. Hov an arrest is made. An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer. § 172. No further restraint allonred, than is necessary. The defendant is not to be subjected to any more restraint than is necessary for his arrest and detention. § 173. Officer must state his authority, and show warrant, if required. The defendant must be informed by the officer that he acts under the authority of the warrant, and he must also show the warrant, if required. § 174. If the defendant flee or resist, officer may use all necessary means to efPect arrest. If, after notice of intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest. PROCEEDINGS IN" CEIMIK'AL ACTIONS. 589 § 175. When officer may break open a door or window. The officer may break open an outer or inner door or window of any building, to execute the warrant, if, after notice of his authority and purpose, he be refused admittance. § 176. Outer or inner door. An officer may break open an outer or inner door or window of any building, for the purpose of liberating a person, who, having entered for the purpose of making an arrest, is detained therein, or when necessary for his own liberation. CHAPTER IV. AEBEST BY AIT OFFICEB, WITHOUT A. WAEEANT. Section 177. In what cases allowed. 178. May break open a door or window, if admittance refused. 179. May arrest at night, on reasonable suspicion of felony. 180. Must state his authority, and cause of arrest, except where party ia committing felony or is pursued after escape. 181. May take before a magistrate, a person arrested by a by-stander for breach of the peace. 182. Magistrate may commit by verbal or written order, for offenses committed in his presence. § 177. In t^Iiat cases allowed. A peace officer may, without a warrant, arrest a person: 1. For a crime, committed or attempted in his presence; 2. When the person arrested has committed a, felony, although not in his presence; 3. When a felony has in fact been committed, and he has reasonable cause for believing the person to be arrested to have committed it. § 178. May break open a door or ^rindoir, if admittance refused. To make an arrest, as provided in the last section, the officer may break open an outer or inner door or window of a building, if, after notice of his office and purpose, he is refused admittance. § 179. May arrest at night, on reasonable suspicion of felony. He may also, at night, without a warrant, arrest any person whom he has reasonable cause for believing to have committed a felony, and is justified in making the arrest, though it afterward appear that a felony had been committed but that the person arrested did not commit it. § 180. Must state his authority, and cause of arrest, except where party is committing felony or is pursued after escape. When arresting a person without a warrant the officer must inform him of the authority of the officer and the cause of the arrest, except when the person arrested is in the actual commission of a crime, or is pursued immediately after an escape. § 181. May take before a magistrate, a person arrested by a bystander for breach of the peace. A peace officer may take before a magistrate, a person, who, being engaged in a breach of the peace, is arrested by a bystander and delivered to him. 590 CODE OF CKIMIISTAL PEOCEDUKE. § 182. Magistrate may commit by verbal or irritten order, for offenses committed in Ms presence. When a crime is committed in the presence of a magistrate, he may, by a verbal or written order, command any person to arrest the offender, and may thereupon proceed as if the offender had been brought before him on a warrant of arrest. CHAPTER V. AEEEST OP A PEIVATE PKESON. Section 183. In what cases allowed. 184. Must inform the party of the cause of arrest, except when actually com- mitting the offense, or on pursuit after escape. 186. Must immediately take prisoner before a magistrate, or deliver him to a peace officer. § 183. In urbat cases alloired. A private person may arrest another, 1. For a crime, committed or attempted in his presence; 2. When the person arrested has committed a felony, although not in his presence. § 184. Mast inform the party of cause of arrest, except irben actually committing the offense or on pursnit after escape. A private person before making an arrest, must Inform the person to be arrested of the cause thereof, and require him to submit, except when he is in the actual commis- sion of the crime, or when he is arrested on pursuit immediately after its commission. § 185. Must immediately take prisoner before a magistrate, or deliver him to a peace officer. A private persoK, who has arrested another for the commission of a crime, must, without unnecessary delay, take him before a magistrate, or deliver him to a peace oflScer. CHAPTER VI. BETAKING, AFTER AN ESCAPE OB EESCtJE, Section 186. May be at any time, or in any place in the state. 187. May break open a door or window, if admittance refused. § 186. May be at any time, or in any place in the state. If a person arrested escape or be rescued, the person from whose custody he escaped, or was rescued, may immediately pursue and retake him, at any time, and in any place in the state. § 187. May break open a door or window, if admittance refused. To retake the person escaping or rescued, the person pursuing may, after notice of his intention and refusal of admittance, break open an outer or inner door or window of a building. PKOCEEDINGS IN CEIMINAL ACTIONS. 591 CHAPTER. VII. EXAMINATION OF THE CASE AND DISCHABGB OP TUE DEPENDANT, OB HOMING HIM TO ANSWEE. Section 188. Magistrate to inform defendant of the charge, and his right to counsel. 189. Time to send, and sending for counsel. 190. On appearance of counsel, or waiting for him a reasonable time exam- ination to proceed. 191. When to be completed; adjournment. 192. On adjournment, defendant to be committed, or discharged on deposit of money. 193. Form of commitment. 194. Depositions, to be read on examination, and witnesses examined. 195. Kxamination of witnesses to be in presence of defendant, and witnesses to be cross-examined in his behalf. 196. Defendant to be informed of his right to make a statement. 197. Waiver of Ms right, and its eflfect. 198. Statement, how taken. 199. Same. 200. How reduced to writing, and authenticated. 201. After statement or waiver, defendant's witnesses to be examined. ' 202. Witnesses to be kept apart. 203. Who may be present at examination. 204. Testimony, how taken and authenticated. 205. Depositions and statement how and by whom kept. 206. Defendant entitled to copies of depositions and statement. 207. Defendant, when and how to be discharged. 208. When and how to be committed. 209. Order for commitment. 210. Certificate of bail being taken. 211. Defendant to choose how he shall be tried. 212. Order for bail, on commitment. 213. Form of commitment. 214. Same. 215. Undertaking of witnesses to appear, when and how taken. 216. Security for appearance of witnesses, when and how required. 217. Witnesses under sixteen. 218. Witnesses to be committed, on refusal to give security for appearance. 219. Witness, unable to give security, may be conditionally examined. 220. Justices' criminal docket. 221. Magistrate to return depositions, statement and undertakings of wit- nesses, to the court. 221a. Recognizances and other papers to be filed. 221b. Taking of examination, depositions and statements by official steno- graphers. § 188. Magistrate to inform defendant of the charge, and his right to counsel. When the defendant is brought before a magistrate upon an arrest either with or without warrant on a charge of having committed a crime, the magistrate must imme- 592 CODE OF CEIMHSTAL PKOCEDUEE. diately inform him of the charge against him, and of his right to the aid of counsel iu every stage of the proceedings, and before any further proceedings are had. § 189. Time to send, and sending for counsel. He must also allow the defendant a reasonable time to send for counsel, and adjourn the examination for that purpose ; and must, upon the request of the defendant, require a peace oflScer to take a message to such counsel in the town or city, as the defendant may name. The officer must, without delay and without fee, perform that duty. § 190. On appearance of counsel, or -waiting for him h, reasonable time, examination to proceed. The magistrate, immediately after the appearance of counsel, or if none appear and the defendant require the aid of counsel, must, after waiting a reasonable time therefor, proceed to examine the case, unless the defendant waives examination and elects to give bail, in which case the magistrate must admit the defendant to bail if the crime is bailable, as provided in section 210; and in that case witnesses in attendance or shown to be material for the people may be required to appear and testify, or to be examined conditionally as prescribed in sections 215, 216, 217, 218, 219, 220. § 191. Wben to be completed; adjournment. The examination must be completed at one session, unless the magistrate, for good cause shown, adjourn it. The adjournment cannot be for more than two days at each time, unless by consent or on motion of the defendant. § 192. On adjournment, defendant to be committed, or discbarged on de- posit of money. If an adjournment be had for any cause, the magistrate must commit the defendant for examination, or discharge him from custody, upon his giving bail to appear during the examination, or upon the deposit of money as provided in this Code, to make sure of his appearance at the time to which the examination is adjourned. § 193. [Am'd, 1890.] Form of commitment for examination. The commitment for examination must be to the following effect: " State of New York, ) "County of j**"' " In the name of the people of the state of New York. " To the sheriff of the county of " (or in the city and county of New York "to the keeper of the city prison of the city and county of New York"). " A. B. having been brought before me under a warrant of arrest upon the charge of (stating briefly the nature of the crime) is committed for examination to the sheriff of the county of " or in the city or county of New York " to the keeper of the city prison of the city of New York." " Dated at the city of (or as the case may be,) this day of " C. D., " Justice of the Peace " ( or as the case may be ) . § 194. Depositions, to be read on examination, and witnesses examined. At the examination, the magistrate must, in the first place, read to the defendant the depositions of the witnesses examined on the taking of the information, and if the defendant request it, or elects to have the examination, must summon for cross- PKOCEEDINGS m CKIMINAL ACTIONS. 593 examination the witnesses so examined, if they be in the county. He must also issue subpoenas for additional witnesses required by the prosecutor or the defendant^ § 195. Examination of vritnesses to be in presence of defendant, and iirit> nesses to be cross-examined in his behalf. The witnesses must be examined in the presence of the defendant, and may be cross- examined in his behalf. § 196. Defendant to be informed of his right to make a statement. When the examination of the witnesses on the part of the people is closed, the magistrate must inform the defendant, that it is his right to make a statement in relation to the charge against liim (stating to him the nature thereof) ; that the state- ment is designed to enable him, if he see fit, to answer the charge and to explain the fact alleged against him; that he is at liberty to waive making a statement; and that his waiver cannot be used against him on the trial. § 197. Waiver of his right and its effect. If the defendant waive his right to make a statement, the magistrate must make a note thereof, immediately following the depositions of the witnesses against the defendant. § 198. Statement, how taken. If the defendant choose to make a statement, the magistrate must proceed to take it in writing, without oath, and must put to the defendant the following questions only : What is your name and age? Where were you born? Where do you reside, and how long have you resided there? What is your business or profession? Give any explanation you may think proper, of the circumstances appearing in the testimony against you, and state any facts which you think will tend to your exculpation. § 199. Statement to be read. The answer of the defendant to each of the questions must be distinctly read to him as it is taken down. He may thereupon correct or add to his answer, and it must be corrected until it is made conformable to what he declares to be the truth. § 200. How reduced to -writing, and authenticated. The statement must be reduced to writing by the magistrate, or under his direction, and authenticated in the following manner : 1. The authentication must set forth in detail that the defendant was informed of his rights as provided in section 196, and that, after being so informed, he made the statement; 2. It must contain the questions put to him, and his answers thereto, as provided in sections 198 and 199; 3. It may be signed by the defendant, or he may refuse to sign it; but if he refuse to sign, his reason therefor must be stated as he gives it ; 4. It must be signed and certified by the magistrate. S 201. After statement of waiver, defendant's witnesses to be examined. After the waiver of the defendant to make a statement, or after he has made it, his witnesses, if he produce any, must be sworn and examined. 38 594 CODE OF CEIMINAL PKOCEDUKE. § 202. Witnesses to be kept apart. The witnesses produced on the part either of the people or of the defendant cannot be present at the examination of the defendant; and while a witness is under examina- tion, the magistrate may exclude all witnesses who have not been examined. He may also cause the witnesses to be kept separate, and to be prevented from conversing with each other, until they are all examined. § 203. [Am'd, 1888.] Who may be present at examination. The magistrate may also exclude from the examination every person except the clerk of the magistrate, the prosecutor and his counsel, the attorney-general, the district attorney of the county, the defendant and his counsel and the officer having the defendant in custody. § 204. Testimony, h.ovr taken and authenticated. The testimony given by each witness must be reduced to writing, as a deposition, by the magistrate or under his direction, and authenticated in the following manner : 1. The authentication must state the name and age of the witness, his place of residence, and his business or profession; 2. It must, unless deposition by question and answer be waived by the defendant and the witness, contain the questions put to the witness, and his answers thereto; each answer being distinctly read to him as it is taken down, and being corrected or added to until it is made conformable to what he declares to be the truth ; 3. If a question put be objected to on either side, and overruled, or the witness decline answering it, that fact, with the ground on which the question was overruled or the answer declined, must be stated ; 4. The deposition must be signed by the witness, or, if he refuse to sign it, his reason for refusing must be stated in writing as he gives it ; 5. It must be signed and certified by the magistrate. 6. [Added, 1896.] The foregoing provisions shall apply to preliminary examina- tions in the city and county of New York only when either the defendant or the district attorney, or the representative of the district attorney shall so elect. § 205. [Am'd, 1888.] Deposition, and statement; how and by whom kept. The magistrate or his clerk must keep the depositions taken on the information or on the examination, and the statement of the defendant, if any, until they are returned to the proper court; and must not permit them to be inspected by any person, except a judge of a court having jurisdiction of the offense, the attorney-general, the district attorney of the county, the defendant and his counsel and the complainant and his counsel. § 206. Defendant entitled to copies of depositions and statement. If the defendant be held to answer the charge, the magistrate or his clerk having the custody of the depositions taken on the information or examination, and of the state- ment of the defendant, must, on payment of his fees at the rate of five cents for every (hundred words, and within two days after demand, furnish to the defendant, or his counsel-, a copy of the depositions and statement, or permit either of them to take a copy. § 207. Defendant, when and how to be discharged. After hearing the proofs, and the statement of the defendant, if he have made one, if it appear, either that a crime has not been committed, or that there is no sufficient cause to believe the defendant guilty thereof, the magistrate must order the defendant to be discharged, by an indorsement on the depositions and statement, signed by him, PKOCEEDINGS IX CKIMIN^AL ACTIONS. 595 to the following eflfect: "There being no sufficient cause to believe the within named A. B. guilty of the offense within mentioned, I order him to be discharged." § 208. When and iio-w to be committed. If, however, it appear from the examination that a crime has been committed, and that there is sufficient cause to believe the defendant guilty thereof, the magistrate must, in like manner, indorse on the depositions and statement, an order, signed by him, to the following effect: "It appearing to me by the within depositions (and state- ment, if any) that the crime therein mentioned [or any other crime, according to the fact, stating generally the nature thereof] has been committed, and that there is sufficient cause to believe the within named A. B. guilty thereof, 1 order that he be held to answer the same." ' § 209. Order for commitment. If the crime be not bailable, the following words, or words to the same effect, must be added to the indorsement: "and that he be committed to the sheriff of the county of , " [or in the city and county of New York " to the keeper of the city prison of the city of New York. "]. § 210. Certificate of bail being taken. If the crime be bailable, and bail be taken by the magistrate, the following words, or words to the same effect, must be added to the indorsement mentioned in section 208: "and I have admitted him to bail to answer, by the undertaking hereto annexed." § 211. [Am'd, 1897.] Defendant to choose how he shall be tried. If the crime with which the defendant is charged be one triable, as provided in sub- division thirty-seven of section fifty-six, by a court of special sessions of the county in which the same was committed, the magistrate, before holding the defendant to answer, must inform him of his right to be tried by a court of special sessions, and must ask him how he will be tried. If the defendant shall not require to be tried by a court of special sessions, he can only be held to answer to a court having authority to inquire by the intervention of a grand jury in offenses triable in the county. § 212. Order for bail, on commitment. If the crime be bailable, and the defendant be admitted to bail, but bail have not been taken, the following words, or words to the same effect, must be added to the indorsement mentioned in section 208, " and that he be admitted to bail in the sum of dollars, and he be committed to the sheriff of the county of " [or in the city and county of New York, "to the keeper of the city prison of the city of New York " ] until he give such bail. § 213. Form of commitment. If the magistrate order the defendant to be committed as provided in section 20!) and 212, he must make out a commitment, signed by him, with his name of office, and deliver it, with the defendant, to the officer to whom he is committed or, if that officer be not present, to a peace officer, who must immediately deliver the defendant into the proper custody, together with the commitment. § 214. Form of commitment. The commitment must be to the following effect: " County of Albany [or as the case may be] . " In the name of the people of the state of New York: 'to the sheriff of the county of Albany ' [or in the city and county of New York, ' to the keeper of the city prison of the city of New York '] : 596 CODE OF CEIMIl^AL PEOCEDUEE. "An order having been this day made by me, that A. B. be held to answer to tha court of upon a charge of [stating briefly the nature of the crime], you are commanded to receive him into your custody and detain him, until he be legally discharged. " Dated at the city of Albany [or as the ease may be], this day of , 19... " C. D., Justice of the Peace [or as the case may be]." § 215. IJndeTtakiiig of Tritnesses to appear, when and how taken. On holding the defendant to answer, the magistrate may take from each of the material witnesses examined before him on the part of the people, a, written under- taking, to the effect that he will appear and testify at the court to which the deposi- " tions and statement are to be sent, or that he will forfeit the sum of $100. § 216. Security for appearance of iritnesses, Trhen and how^ required. When the magistrate is satisfied, by proof on oath, that there is reason to believe that any such witness is an accomplice in the commission of the crime charged, he may order the witness to enter into a written undertaking, with such sureties, and in such sum as he may deem proper, for his appearance as specified in the last section. § 217. [Am'd, 1909.] Witnesses under sixteen. Children under the age of sixteen years, when witnesses, may be committed as provided by section four hundred and eighty-six and four hundred and eighty-seven of the penal law subject to the order of the trial court. § 218, Witness to be committed on refusal to give security for appearance. If a witness, required to enter into an undertaking to appear and testify, either with or without sureties, refuses compliance with the order for that purpose, the magistrate must commit him to prison until he comply or be legally discharged. § 219. [Am'd, 1887.] Conditional examination of witnesses. A witness may be conditionally examined on behalf of the people in the manner and with the effect provided by title 12, chapter 3 of this Code, for taking examination of witnesses conditionally on behalf of the defendant. A copy of the order and aSi- davit upon which the application is made, together with notice of the time and place where the examination is to be taken, shall be served on the defendant, and his counsel if he have any, at least two days before the time fixed for such examination, and the defendant may be present personally upon such examination to confront the witness produced against him, if the defendant have no counsel the order shall contain a pro- vision assigning counsel to him for the purpose of such examination upon whom a copy of said order, affidavit and notice shall be served. § 220. [Am'd, 1898, 1910.] Justices' criminal docket. Every justice of the peace and every police or other special justice appointed or elected in a city, village or town other than in the city and county of New York, shall forthwith enter correctly at the time thereof, full minutes of all business done before him as such justice and as a court of special sessions in criminal actions and in crim- inal proceedings and including cases of felony, in a book to be furnished to him by the clerk of the city, village or town where he shall reside, and which shall be designated " justices' criminal docket," and shall be at all times open for inspection to the public. Such docket shall be and remain the property of the city, village or town of the residence of such justice, and at the expiration of the term of office of such justice, if in a city shall remain on file in the police office of such justice, or in the oflftce of the PROCEEDINGS m CRIMINAL ACTIONS. 597 police clerk, and if in a village or town shall be forthwith filed by him in the office cf the clerk of such village or town. The minutes in every such docket shall state the names of the witnesses sworn and their places of residence, and if in a city, the street and house number; and every proceeding had before him. It shall be the duty of every justice of the peace and every police or other special justice in villages and towns, at least once a year and upon the last audit day of such village or town, to present his docket to the auditing board of said village or town, which board shall examine the said docket, and enter in the minutes of its proceedings the fact that such docket book has been duly examined, and that the fines therein collected have been turned over to the proper officials of the village or town as required by law. Any justice of the peace or police or other special justice who shall wilfully fail to make and enter in such docket forthwith, the entries by this section required to be made or to exhibit such docket when reasonably required, or present his docket to the auditing board as herein required, shall be guilty of a misdemeanor and shall, upon conviction, in addition to the punishment provided by law for a misdemeanor, forfeit his office. § 221. [Am'd, 1895, 1896, 1904, 1905.] Magistrate to retnrii depositions, et cetera. Whenever a magistrate has discharged a defendant, or has held him to answer, as provided in sections two hundred and seven and two hundred and eight, he must, within five days thereafter, return to the clerk of the supreme court or county court or other court having power to inquire into the offenses by the intervention of a grand jury, the warrant, if any, the depositions, the statement of the defendant, if he have made one, and all undertakings of bail, or for the appearance of witnesses, taken by him. In the city of New York such returns shall be made", in the case of all misde- meanors, except charges of libel to the district attorney of the county wherein the offense charged was committed. Except in a county containing or wholly contained in a city of the first class, any such magistrate, within five days after so discharging or holding a defendant, must also return to the district attorney of the county a state- ment of the name and address of the defendant the crime charged, the name and address of the informant, and the names and addresses of all of the witness subpoenaed or sworn upon the examination, or who have made depositions in support of the in- formation. § 221-a. [Added, 1909.] Recognizances and other papers to be filed. Every recognizance taken by any court, or hy any magistrate, coroner or other officer, to appear and answer at any court, and the complaint, inquisition, affidavits and other papers upon which such recognizance is founded, shall be filed in the office of the clerk of the court at which the party is thereby recognized to appear, within ten days after the same is so taken. § 221-a. [Added, 1912.] Taking of examination, depositions and state- ments hy official stenographer. Upon an examination provided for in this chapter, by or before any police justice or magistrate by whom an official stenographer shall have been appointed, under pro- vision of law therefor, stenographic minutes of the proceedings and of the examina- tion, depositions of witnesses and statement of the defendant, if any, shall be taken by such stenographer, and such minutes, when so taken and when certified by the stenogra- pher and by the justice or magistrate who held such examination, shall be regarded as actually taken down in vrriting by said justice or magistrate and subscribed by the witness or witnesses at such examination and by the defendant, and as fully comply- ing with the requirements of this chapter in reference to the taking and subscribing of such examination, depositions and statement. 598 CODE OF CKIMIifAL PEOOEDUKE. TITLE V. OP THE INDICTMENT. CHAPTER III. AMENDMENT OF THE INDICTMENT.- [Made applicable bj section 62.] Section 293. When amendment allowed. 294. Trial to proceed. 295. Effect of verdict, etc. § 293. When amendment allonred. Upon the trial of an indictment, when a variance between the allegation therein and the proof, in respect to time, or in the name- and description of any place, person or thing, shall appear, the court may, in its judgment, if the defendant cannot be thereby prejudiced in his defeilse on the merits, direct the indictment to be amended, according to the proof, on such terms as to the postponement of the trial, to be had before the same or another jury, as the court may deem reasonable. § 294. Trial to proceed. After such amendment, the trial, whenever the same shall be proceeded with, shall proceed in the same manner and with the same consequences, as if no such variance has occurred. § 295. Effect of verdict, etc. A verdict and judgment, which shall be given after the making of any such amend- ment, shall be of the same force and effect as if the indictment had originally been found in its amended form. CHAPTER IV. AOBAIGNMENT OF THE DEFENDANT. Section 309. Arraignment, how made. 310. If he gave another name, subsequent proceedings to be had by that name. § 309. Arraignment, hov made. The arraignment must be made by the court, or by the clerk or district attorney, under its direction, and consists in stating the charge in the indictment to the defen- dant, and in asking him whether he pleads guilty or not guilty thereto. If the defen- dant demand it, the indictment must be read, or a copy thereof furnished to him before requiring him to plead. § 310. If he gave another name, subsequent proceedings to be had by that name. If when arraigned the defendant allege that another name is his true name, the court must direct an entry thereof in the minutes of the arraignment; and the subsequenO proceedings on the indictment may be had against him, by that name, referring also to the name by which he is indicted. PEOOEEDINGS EST CEIMINAL ACTIOJifS. 599 CHAPTER VII. PLEA. [Made applicable by section 62.] Section 332. The different kinds of pleas. 333. Plea, how put in. 334. Its form. 335. Plea of guilty, how put in. 336. Plea of insanity. 337. Plea may be withdrawn, by permission of the court. 338. What is denied by a plea of not guilty. 339. What may be given in evidence under it. 340. What is deemed a former acquittal. 341. Same. 342. If defendant refuses to answer indictment, plea of not guilty to be entered. § 332. [Am'd, 1897.] Flea of guilty restricted. There are three kinds of pleas to an indictment : 1. A plea of guilty. 2. A plea of not guilty. 3. A plea of a former judgment of conviction or acquittal of the crime charged, which may be pleaded either with or without the plea of not guilty. A conviction shall not be had upon a plea of guilty where the crime charged is or may be punishable by death. § 333. Flea, how put in. Every plea must be oral, and must be entered upon the minutes of the court. § 334. Its form. The plea must be entered in substantially the following form : 1. If the defendant plead guilty to the crime charged in the indictment, " the defen- dant pleads that he is guilty; " 2. If he plead guilty to any lesser crime than that charged 'in the indictment, the defendant pleads guilty to the crime of " [naming it]. 3. If he plead not guilty, "the defendant pleads not guilty." 4. If he plead a former conviction or acquittal: "the defendant pleads, that he has already been convicted [or acquitted as the case may be], of the crime charged in this indictment, by the judgment of the court of [naming it], rendered at [naming the place], on the day of " § 335. Flea of guilty, how put in. A plea of guilty can only be put in by the defendant himself in open court, except upon an indictment against a corporation; in which case, it may be put in by counsel. § 336. Flea of insanity. Whenever a person, in confinement under indictment, desires to offer the plea of insanity, he may present such plea at the time of his arraignment as a specification under the plea of not guilty. 600 CODE OF CKIMINAL PEOCEDUEE. § 337. Plea may be irithdrairn, by permission of the court. The court may, in its discretion, at any time before judgment upon a plea of guilty, permit it to be withdrawn, and a, plea of not guilty substituted. § 338. What is denied by a plea of not guilty. The plea of not guilty is a denial of every material allegation in the indictment. § 339. What may be given in evidence under it. AH matters of fact, tending to establish a defense, other than that specified in the third subdivision of section 332, may be given in evidence under the plea of not guilty. § 340. What is deemed a former acquittal. If the defendant were formally acquitted on the ground of a variance between the indictment and the proof, or the indictment were dismissed upon an objection to its form or substance, without a judgment of acquittal, it is not deemed an acquittal of the same offense. § 341. Same. When, however, the defendant was acquitted on the merits, he is deemed acquitted of the same offense, notwithstanding a defect in form or substance, in the indictment on which he was acquitted. § 342. If defendant refuse to ansirer indictment, plea of not guilty to be entered. If the defendant refuse to answer an indictment, by demurrer or plea, a plea of not guilty must be entered. TITLE VI. OF THE PEOCEEDINGS ON THE INDICTMENT BEPOKE TBIAL. CHAPTiaB I. — The mode of trial. II. — Formation of the trial jury. III. — Challenging the jury. CHAPTER III. CHAIXBNGING THE JUET. [Made applicable by section 62.] Section 359. Definition and division of challenges. 360. When there are several defendants, they must unite in their challenges. 361. Challenge to the panel, defined. 362. Upon what founded. 363. When and how taken. 364. If sufficiency of the facts be denied, adverse party may accept. Exception, how made and tried. 365. If exception overruled, court may allow denial of challenge. If allowed, may permit challenge to be amended. PEOCEEDINGS IN CEIMINAL ACTIONS. 601 Section 366. Denial to challenge, how made, and denial thereof. 367. Who may be examined on trial of challenge. 368. If challenge allowed, jury to be discharged. If disallowed, jury to be impaneled. 369. Defendant to be informed of his right to challenge an individual juror. 370. Kinds of challenge to individual juror. 371. Challenge, when taken. 372. Peremeptory challenge. 373. Number of peremptory challenges to which defendant is entitled. 374. Definition and kinds of challenge for cause. 375. Gteneral causes of challenge. 376. Particular causes of challenge. 377. Ground of challenge for implied bias. 378. Grounds of challenge for actual bias. 379. Exemption, not a ground of challenge. 380. Causes of challenge, how stated. 381. Exceptions to challenge and denial thereof. 382. Challenge, how tried, if denied. 383. Juror challenged may be examined as a witness. 384. Rules of evidence on trial of challenge. 385. Challenges, first by people and then by the defendant. 386. Order of challenges. 387. Jury to be sworn, etc. § 359. Definition and division of challenges. A challenge is an objection made to trial jurors, and is of two kinds: 1. To the panel; 2. To an individual juror, § 360. When there are several defendants, they must unite in their challenge. When several defendants are tried together they cannot sever their challenges, but must join therein. § 361. Challenge to the panel, defined. A challenge to the panel is an objection made to all the trial jurors returned, and may be taken as well to the panel returned for the term, as to an additional panel ordered to complete the jury. § 362. [Am'd, 1909.] Ground for challenge to panel. A challenge to the panel can be founded only on a material departure, to the prejudice of the defendant, from the forms prescribed by the code of civil procedure and the judiciary law, in respect to the drawing and return of the jury, or on ths intentional omission of the sheriff to summon one or more of the jurors drawn. § 363. When and how taken. A challenge to the panel must be taken before a juror is sworn, and must be in writ- • ing, specifying distinctly the facta constituting the ground of challenge. § 364. If snffioieney of the facts be denied, adverse party may except; exception how made and tried. If the sufficiency of the facts alleged as a ground of challenge be denied, the adverse party may except to the challenge. The exception need not be in writing, but must be 602 CODE OF CKIMIA^AL PKOCEDURE. entered upon the minutes of the court; and thereupon the court must proceed to try the sufficiency of the challenge, assuming the facts alleged therein to be true. § 365. If exception overmled, court may alloTV denial of challenge; if alloired, may permit challenge to be amended. If, on the exception, the court deem the challenge sufficient, it may, if justice re- quire it, permit the party excepting, to withdraw his exception, and to deny the facts alleged in the challenge. If the exception be allowed, the court may, in like manner, permit an amendment of the challenge. § 366. Denial of challenge, Txavr made, and trial thereof. If the challenge be denied, the denial may, in like manner, be oral, and must be entered upon the minutes of the court; and the court must proceed to try the question of fact. § 367. Who may be examined on trial of challenge. Upon the trial of the challenge, the officers, whether judicial or ministerial, whose irregularity is complained of, as well as any other persons, may be examined to prove or disprove the facts alleged as the ground of the challenge. § 368. If challenge alloxred, jury to be discharged; if disalloved, jury to be impaneled. If, either upon the exception of the challenge, or a. denial of the facts, the challenge be allowed, the court must discharge the jury, so far as the trial of the indictment in question is concerned. If the challenge be disallowed, the court must direct the jury to be impaneled. § 369. Defendant to be informed of his right to challenge an individual juror. Before a juror is called, the defendant must be informed by the court, or under its direction, that if he intend to challenge an individual juror, he must do so when the juror appears, and before he is sworn. § 370. Kinds of challenge to individual juror. A challenge to an individual juror may be taken either by the people or by the defen- dant, and is either 1. Peremptory, or 2. For cause. § 371. Challenge, -when tahen. A challenge must be taken when the juror appears, and before he is sworn; but the court may, in its discretion, for good cause, set aside a juror at any time before evidence is given in the action. § 372. Peremptory challenge. A peremptory challenge is an objection to a juror, for which no reason need be given, but upon which the court must exclude him. § 373. Number of peremptory challenges to irhich defendant is entitled. Peremptory challenges must be taken in a number as follows: L If the crime charged be punishable with death, thirty; 2. If punishable with imprisonment for life, or for a term of ten years or more, twenty; 3.' In all other cases, five. PKOCEEDINGS IN CEIMINAL ACTIONS. 603 § 374. Definition and kinds of challenge for cause. A challenge for cause is an objection to a particular juror, and is either 1. General, that the juror is disqualified from serving in any case; or 2. Particular, that he is disqualified from serving in the case on trial- § 375. [Am'd, 1909.] General causes of challenge. General causes of challenge are, 1. A conviction for a felony; 2. A want of any of the qualifications prescribed by the judiciary law, to render a person a competent juror. § 376. Particular causes of challenge. Particular causes of challenge are of two kinds: 1. For such a bias, as, when the existence of the facts is ascertained, does in judg- ment of law disqualify the juror, and which is known in this Code as implied bias; 2. For the existence of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion, that such juror cannot try the issue impartially and without prejudice to the substan- tial rights of the party challenging, and which is known in this Code as actual bias. But the previous expression or formation of an opinion or impression in reference to the guilt or innocence of the defendant, or a present opinion or impression in reference thereto, is not a sufiBcient ground of challenge for actual bias, to any person otherwise legally qualified, if he declare on oath, that he believes that such opinion or impression will not influence his verdict, and that he can render an impartial verdict according to the evidence, and the court is satisfied, that he does not entertain such a present opinion or impression as would influence his verdict. § 377. Grounds of challenge for, implied. A challenge for implied bias may be taken for all or any of the following causes, and for no other: 1. Consanguinity or affinity within the ninth degree, to the person alleged to be in- jured by the crime charged, or on whose complaint the prosecution was instituted, or to the defendant; 2. Bearing to him the relation of guardian or ward, attorney or client, or client of the attorney or counsel for the people or defendant, master or servant, or landlord or tenant, or being a member of the family of the defendant, or of the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or in his employment on wages; 3. Being a party adverse to the defendant in a civil action or having complained against, or been accused by him in a criminal prosecution; 4. Having served on the grand jury which found the indictment, or on a coroner's jury which inquired into the death of a person whose death is the subject of the indictment ; 5. Having served on a trial jury, which has tried another person for the crime charged in the indictment; 6. Having been one of a jury formerly sworn to try the same indictment, and whose verdict was set aside or which was discharged without a verdict, after the cause was submitted to it; 7. Having served as a juror, in a civil action brought against the defendant, for the act charged as a crime ; 8. If the crime charged be punishable with death, the entertaining of such conscien- tious opinion as would predlude his finding the defendant guilty; in which case he shall neither be permitted nor compelled to serve as a juror. 604 CODE OF CEIMIjSTAL PROCEDUEE. § 378. Grounds of challenge for actual bias. A challenge for actual bias may be taken for the cause mentioned in the second subdivision of section 376, and for no other cause. § 379. Esemption, not » ground for challenge. An exemption from service on a jury is not a cause of challenge, but the privilege of the person exempted. § 380. Causes of challenge, how stated. In a challenge for implied bias, one or more of the causes stated in section 377 must be alleged. In a challenge for actual bias, the cause stated in the second subdivision of section 376 must be alleged. In either case, the challenge may be oral, but must be entered upon the minutes of the court. § 381. Exceptions to challenge and denial thereof. The adverse party may except to the challenge, in the same manner as to a challenge to the panel; and the same proceedings must be had thereon, as prescribed in section 364, except that, if the challenge be allowed, the juror must be excluded. The adverse party may also orally deny the facts alleged as the ground of challenge. § 382. Challenge how tried, if denied. If the facts be denied, the challenge must be tried by the court, which must either allow or disallow the same and direct an entry accordingly on the minutes. If the challenge be allowed, the juror must be discharged. § 383. Juror challenged may be examined as a ivitness. Upon the trial of a challenge to an individual juror, the juror challenged may be examined as a witness, to prove or disprove the challenge; and is bound to answer every question pertinent to the inquiry therein. § 384. Rules of evidence on trial of challenge. Other witnesses may be examined on either side; and the rules of evidence applicable to the trial of other issues, govern the admission or exclusion of testimony, on the trial of the challenge. § 385. Challenges first by people and then by the defendant. Challenges to an individual juror must be taken first by the people and then by the defendant. § 386. Order of challenges. Challenges to either party must be taken: 1. To the panel; 2. To an individual juror, for a general disqualification; 3. To an individual juror, for implied bias; 4. To an individual juror, for actual bias; 5. Peremptory. § 387. Jury to be sworn. The first twelve persons who appear, as their names are drawn and called, who are proved as indifferent between the parties, and are not discharged or excused, must be eworn, and constitute the jury to try the issue. PROCEEDINGS IN CEIMINAL ACTIONS. 605 TITLE VII. or THE TRIAL. Chapteb I. — The trial. II. — Conduct of the jury, after the cause is submitted to them. III.— The verdict. CHAPTER I. THE TBIAI,. [See section 62.] Section 388. In what order trial to proceed. 389. Defendant presumed innocent, until contrary proved. In case of reason- able doubt, entitled to acquittal. 390. When reasonable doubt of which degree he is guilty, he must be con- victed of the lowest. 391. Separate trial of defendants jointly indicted. 392. Rules of evidence in civil cases applicable in criminal cases, except where otherwise provided in this Code. 393. Defendant as witness. 393a. Persons jointly indicted, competent witnesses for each other. 394. Compensation of witness. 395. Confession of defendant, when evidence, and its effect. 396. 397. Evidence on trial for treason. 398. Evidence on trial for conspiracy. 398a. Evidence on trial for abortion. 399. Conviction cannot be had on testimony of accomplice, unless corroborated. 400. If testimony show higher crime than that charged, court may discharge jury, and hold defendant to answer a new indictment. 401. If new indictment not found, defendant to be tried on the original in- dictment. 402. Court may discharge jury, where it has not jurisdiction of the oflFense, or the facts do not constitute an offense. 403. Proceedings if jury discharged for want of jurisdiction of the offense, when committed out of the state. 404. Proceedings in such case, when offense committed in the state. 405. Same. 406. Same. 407. Same. 408. Proceedings, if jury discharged because the facts do not constitute an offense. 409. Same. 410. When evidence on either side is closed, court may advise acquittal. Effect of the advice. 411. View of premises, when ordered, and how conducted. 412. Duty of officer as to jury. 413. Knowledge of juror, to be declared in court, and juror to be sworn as witness. 606 CODE OF CRIMINAL PROCEDUEE. Section 414. Jurors may be permitted to separate during the trial. If kept together, oath of the officers. 415. Jurors not to converse together on the subject of the trial, nor form an opinion until the cause is submitted. 416. Proceedings where juror becomes unable to perform his duty before con- clusion of trial. 417. Court to decide questions of law arising during trial. 418. On indictment for libel, jury to determine law and fact. 419. In all other cases, court to decide questions of law, subject to right of defendant to except. 420. Charge to jury. 421. Jury may decide in court, or retire in the custody of officers; oath of the officers. 422. When defendant on bail appears for trial, he may be committed. § 388. In vrhat order trial to proceed. The jury having been impaneled and sworn, the trial must proceed in the following order : 1. District attorney, or other counsel for the people, must open the case, and offer the evidence in support of the indictment. 2. The defendant or his counsel may then open his defense, and offer his evidence in support thereof; 3. The parties may then, respectively, offer rebutting testimony, but the court for good reason, in furtherance of justice, may permit them to offer evidence upon their original case; 4. When the evidence is concluded, unless the case is submitted to the jury on either side, or on both sides, without argument, the defendant or his counsel must commence, and the counsel for the people conclude the argument to the jury; 5. The court must then charge the jury. § 3S9. Defendant presumed innocent, until contrary proved; in cage of reasonable doubt, entitled to acquittal. A defendant in a criminal action is presumed to be innocent, until the contrary be proved; and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal. § 390. When reasonable doubt of 'which degree he is guilty, he must be convicted of the lovrest. When it appears that a defendant has committed a crime, and there is reasonable ground of doubt, in which of two or more degrees he is guilty, he can be convicted of the lowest of those degrees only. § 391. Separate trial of defendants jointly indicted. When two or more defendants are jointly indicted for a felony, any defendant requir- ing it, must be tried separately. In other cases, defendants, jointly indicted, may be tried separately or jointly, in the discretion of the court. § 392. [Am'd, 1892.] Rules of evidnce in civil cases applicable in criminal cases, except -where otherwise provided in this Code. The rules of evidence in civil cases are applicable also to criminal cases, except as otherwise provided in this Code. Whenever in any criminal proceedsinas a child actu- magistrate, upon the like notice, in writing, requiring him to do so, must transmit the ally or apparently under the age of twelve years offered as a witness does not in the PKOCEEDINGS IN CEIMINAL ACTIONS. 607 opinion of the court or magistrate understand the nature of an oath, the evidence of such child may be received though not given under oath if, in the opinion of the court or magistrate, such child is possessed of sufficient intelligence to justify the re- ception of the evidence. But no person shall be held or convicted of an offense upon such testimony unsupported by other evidence. § 393. Defendant as tritness. The defendant in all cases may testify as a witness in his ovrn behalf, but his neglect or refusal to testify does not create any presumption against him. § 393-a. [Added, 1909.] Persons jointly indicted, competent inritnesses for eacb other. All person jointly indicted shall, upon the trial of either, be competent witnesses for each other the same as if not included in the same indictment. § 394. Compensation of tritness. The rules as to the compensation of witnesses attending trials in criminal cases, pre- scribed by special statutes, are continued as there defined. § 395. Confession of defendant, iirhen evidence, and its effect. A confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney, that he shall not be prosecuted therefor; but is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed. § 396. Evidence on trial for treason. Upon a trial for treason the defendant cannot be convicted, except upon the testi- mony of two witnesses to the same overt act, or of one witness to one overt act, and another witness to a different overt act of the same treason. But if two or more dis- tinct treasons, of different kinds, be alleged in the indictment, two witnesses to prove different treasons are not sufficient to warrant a conviction. § 307. Same. Upon a trial for treason, evidence cannot be admitted, of an overt act not expressly charged in the indictment; nor can the defendant be convicted, unless one or more overt acts be expressly alleged therein. § 398. Evidence on trial for conspiracy. Upon a trial for conspiracy, in a case where an overt act is necessary to constitute the crime, the defendant cannot be convicted, unless one or more overt acts be expressly alleged in the indictment, nor unless one or more of the acts alleged be proved; but any other overt act, not alleged in the indictment, may be given in evidence. § 398-a. [Added, 1909.] Evidence on trial for abortion. In all prosecutions under and in pursuance of article six of the penal law, the dying declarations of the woman whose death is produced by any of the means set forth in said article, shall be admitted in evidence subject to the same restrictions as in cases of homicide. § 399. Conviction cannot he bad on testimony of accomplice, nnless cor- roborated. A conviction cannot be had upon the testimony of an accomplice, unless he be cor- roborated by such other evidence as tends to connect the defendant with the commis- sion of the crime. 608 CODE OF CEIMINAL PEOCEDUEE. § 400. If testimony show higher offense than that charged, court may dis- charge jury, and hold defendant to answer a nexr indictment. If it appear by the testimony, that the facts proved constitute a crime of a higher nature than that charged in the indictment, the court may direct the jury to be dis- charged, and all proceedings on the indictment to be suspended, and may order the defendant to be committed, or continued on or admitted to bail, to answer any new indictment which may be found against him for the higher offense. g 401. If new indictment not found, defendant to he tried on the original indictment. If an indictment for the higher crime be dismissed by the grand jury, or be not found at or before the next term, the court must again proceed to try the defendant on the original indictment. § 402. Court may discharge jury, where it has not jurisdiction of the offense, or the facts do not constitute an offense. The court may also direct the jury to be discharged, where it appears that it has not jurisdiction of the crime, or that the facts, as charged in the indictment, do not constitute a crime. § 403. Proceedings, if jury discharge for want of jurisdiction of the offense, w^hen committed out of the state. If the jury be discharged, because the court has not jurisdiction of the crime charged in the indictment, and it appears that it was committed out of the jurisdiction of the state, the court may order the defendant to be discharged, or to be detained for a reasonable time specified in the order, until a communication can be sent by the district attorney to the chief executive officer of the state, territory or district where the crime was committed. § 404. Proceedings in such case, when offense committed in the state. If the crime were committed within the exclusive jurisdiction of another county of this state, the court must direct the defendant to be committed for such time as it deems reasonable, to await a warrant from the proper county for his arrest; or if the crime be a misdemeanor only, it may admit him to bail, in an undertaking, with suffi- cient sureties, that he will, within such time as the court may appoint, appear in such court to await a warrant from the proper county for his arrest. § 405. Same. In the case provided for in the last section, the clerk must forthwith give notice to the district attorney of the proper county, that the defendant has been so committed or held to bail. § 406. Same. If the defendant be not arrested, as provided in section 404, on a warrant from the proper county, he must be discharged from custody, or his bail in the action be exonerated, or money deposited instead of bail refunded, as the case may be; and the sureties in the undertaking mentioned in that section must be discharged. § 407. Same. If the defendant be arrested, the same proceedings must be had thereupon, as upon the arrest of a defendant in another county, on a warrant of arrest issued by a magistrate. PEOCEEDINGS IN" CEIMIISTAL ACTIONS. 609 § 408. Proceedings, if jury discharged because the facts do not consti- tute an offense. I£ the jury be discharged, because the facts as charged do not constitute a crime, the court must order the defendant, if in custody, to be discharged therefrom, or if admitted to bail, that his bail be exonerated, or if he have deposited money instead of bail, that the money deposited be refunded to him, unless in its opinion a new indict- ment can be framed, upon which the defendant can be legallly convicted; in which case, it may direct that the case be resubmitted to the same or another grand jury. § 409. Same. If the court direct that the case be submitted anew, the same proceedings must be had thereon as are prescribed in sections 318 and 319. § 410. 'When evidence on either side is closed, court may advise acq.nittal, effect of the advice. If, at any time after the evidence on either side is closed, the court deem it insuffi- cient to warrant a conviction, it may advise the jury to acquit the defendant and they must allow the advice. § 411. Vieiv of premises, ivhen ordered, and how conducted. When, in the opinion of the court, it is proper that the jury should view the place in which the crime is charged to have been committed, or in which any material fact occurred, it may order the jury to be conducted, in a body, under charge of proper officers, to the place, which must be shown to them by a judge of the court, or by a person appointed by the court for that purpose. § 412. Duty of officer as to jury. The officers, mentioned in the last section, must be sworn to suffer no person to speak to or communicate with the jury, nor to do so themselves, on any subject connected with the trial, and to return them into court without unnecessary delay, or at a specified time. § 413. KnoTrledge of juror, to be declared in court, and juror to be sivorn as -nritness. If a juror have any personal knowledge, respecting a fact in controversy in a cause, he must declare it in open court, during the trial. If, during the retirement of the jury, a juror declare a fact, which could be evidence in the cause, as of his own knowledge, the jury must return into court. In either of these cases, the juror mak- ing the statement must be sworn as a witness, and examined in the presence of the parties. § 414. Jurors may be permitted to separate during the trial; if kept together, oath of the officers. The jurors sworn to try an indictment may, at any time before the submission of the cause to the jury, in the discretion of the court; be permitted to separate, or be kept in charge of proper officers. Such officers must be sworn to keep the jurors together until the next meeting of the court, to suffer no person to speak to, or com- municate with them, nor to do so themselves, on any subject connected with the trial, and to return them into court at the next meeting thereof. § 415. Jurors not to converse together on the subject of the trial nor form an opinion until the case is submitted. The jury must also, at each adjournment of the court, whether permitted to separate or kept in charge of officers, be admonished by the court, that it is their duty not to 39 610 CODE OF CKIMIXAL PEOCEDUEE. converse among themselves on any subject connected with the trial, or to form or express any opinion thereon, until the cause is finally submitted to them. § 416. Proceedings, irliere jnror becomes nnalile to perforin his duty before conclusion of trial. If, before the conclusion of the trial, a juror become sick, so as to be unable to perform his duty, the court may order bim to be discharged, and another jury to be then or afterward impaneled. § 417. Court to decide q^nestion of lair arising during trial. The court must decide all questions of law which arise in the course of the trial. § 418. On indictment for libel, jury to determine latr and fact. On the trial of an indictment for libel, the jury have the right to determine the law and the fact. § 419. In all other cases, court to decide questions of lair, subject to right of defendant to except. On the trial of an indictment for any other crime than libel, questions of law are to be decided by the court, saving the right of the defendant to except; 'questions of fact by the jury. And although the jury have the power to find a general verdict, which includes questions of law as well as of fact they are bound, nevertheless, to receive as law what is laid down as such by the court. § 420. Charge to jury. In charging the jury, the court must state to them, all matters of law which it thinks necessary for their information in giving their verdict; and must, if requested, in addition to what it may deem its duty to say, inform the jury that they are the exclusive judges of all questions of fact. § 421. Jury may decide in court, or retire in the custody of officers; oath of the officers. After hearing the charge, the jury may either decide in court, or may retire for deliberation. If they do not agree without retiring, one or more officers must be sworn, to keep them together in some private and convenient place, and not to permit any person to speak to or communicate with them, nor do so themselves, unless it be by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court. § 422. When defendant on bail appears for trial, he may be committed. When a defendant, who has given bail, appears for trial, the court may, in its discretion, at any time after his appearance for trial, order him to be committed to the custody of the proper ofiicer of the county, to abide the judgment or further order of the court; and he must be committed and held in custody accordingly. PKOCEEDINGS m CHIMIN AL ACTIONS. 611 CHAPTER II. CX5NDUCT or THE JUBT, AFTEB THE CAUSE IS SUBMITTED TO THEM. [See section 62.] Section 423. Room and accommodations for the jury after retirment, how provided. 424. Accommodations for the jury, when kept together during the trial, or after retirement. 425. What papers the jury may take with them. 426. Same. 427. May return into court, for information. 428. When jury to be discharged before agreement. 429. Reason for discharge. 430. When jury discharged or prevented from giving a verdict, cause to be again tried. 431. Court may adjourn during absence of jury, as to other business, but deemed open till verdict rendered or jury discharged. 432. Final adjournment of court discharges jury. § 423. Room and accommodations for the jury after retirement, how provided. A room must be provided by the supervisors of the county ( or if the trial be in a city court, by the corporate authorities of the city), for the use of the jury, upon their retirement for deliberation, with suitable furniture, fuel, lights and stationery. If the supervisors or corporate authorities neglect this duty, the court may order the sheriff to perform it; and the expenses incurred by him in carrying the order into effect, when certified by the court, are a county charge. § 424. Accommodations for the jnry, -when kept together dnring the trial, or after retirement. While the jury are kept together, either during the progress of the trial or after their retirement for deliberation, they must be provided by the sheriff, upon the order of the court, at the expense of the county (or if the trial be in the city court, at the expense of the city), with suitable and sufficient food and lodging. § 425. What papers the jury may take irith them. The court may permit the jury, upon retiring for deliberation, to take with them any paper or article which has been received as evidence in the cause, but only upon the consent of the defendant and the counsel for the people. § 526. Same. The -jury may also take with them notes of the testimony or other proceedings on the trial, taken by themselves or any of them, but none taken by any other person. § 427. May return into court, for information. After the jury have retired for deliberation, if there be a disagreement between them, as to any part of the testimony, or if they desire to be informed of a point of law arising in the cause, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given after notice to the district attorney and to the counsel for the defendant, and in cases of felony, in the presence of the defendant. 612 CODE OF CEIMINAL PEOCEDUKE. § 428. When jury to be discharged before agreement. After the jury have retired to consider of theii verdict, they can be discharged before they shall have agreed thereon only in the following cases: 1. Upon the occurrence of some injury or casualty affecting the defendant, the jury or some one of them, or the court, rendering it inexpedient to keep them longer together; or 2. When after the lapse of such time as shall seem reasonable to the court, they shall declare themselves unable to agree upon a verdict; or 3. When vrith the leave of the court, the public prosecutor and the counsel for the defendant consent to such discharge. § 429. Reason for discharge. Whenever the jury ia discharged without a verdict, the reason for the discharge must be entered on the minutes. § 430. When jury discharged or prevented from giving a verdict, causa to be again tried. In all cases where a jury are discharged, or prevented from giving a verdict, by reason of an accident or other cause, except where the defendant is discharged from the indictment, during the progress of the trial, or after the cause is submitted to them, the cause may be again tried at the same or another term. § 431. Court may adjourn during absence of jury, as to other business, but deemed open till verdict rendered or jury discharged. While the jury are absent, the court may adjourn from time to time, as to other business; but it is nevertheless deemed open, for every purpose connected with the cause submitted to the jury, until a verdict is rendered or the jury discharged. § 432. Final adjournment of court discharges jury. A final adjournment of the court discharges the jury, but any term of a court may be continued for the purpose of finishing a trial or receiving a verdict. CHAPTER III. THE VEBDIOT. [See section 62.] Section 433. When the jury have agreed, to be brought into court and their names called. If all do not appear, jury to be discharged and cause again tried. 434. In felony, defendant must be present. In misdemeanor, verdict may be rendered in his absence. 435. Manner of taking the verdict. 436. Verdict may be general or special. 437. General verdict. 438. Special verdict. 439. Special verdict, how rendered. 440. Same. 441. Special verdict, how brought to argument. 442. Judgment thereon. 443. When special verdict defective, new trial to be ordered. 444. Upon indictment for crime consisting of different degrees, jury may convict of any degree, or of any attempt to commit the crime. PKOCEEDINGS IN CKIMINAL ACTIONS. 613 Section 445. In other cases, jury may convict of any offense necessarily included in that charge. 446. On indictment against several, jury may render a verdict as to some, and the cause be again tried as to the others. 447. In what cases court may direct a reconsideration of the verdict. 448. Same. 449. When judgment may be given upon an informal verdict. 450. Polling the jury. 451. Recording the verdict. 452. Defendant, when to be discharged or detained after acquittal. 453. Proceedings upon general verdict of conviction, or a special verdict. 454. When defendant acquitted on the ground of insanity, the fact to be stated with the verdict; commitment of defendant to state lunatic asylum. § 433> IVlien the jury have agreed, to be brought into court and their names called; if all do not appear, jury to be discharged and cause again tried. When the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge. Their names must then be called, and if all do not appear, the rest must be discharged without giving a verdict. In that event, the cause may be again tried, at the same or another term. § 434. In felony, defendant must be present; in misdemeanor, verdict may be rendered in his absence. If the indictment be for a felony, the defendant must, before the verdict is received, appear in person. If it be for a misdemeanor, the verdict may be rendered in his absence. § 435. Manner of taking the verdict. If the jury appear, they must be asked by the court or the clerk, whether they have agreed upon their verdict; and if the foreman answer in the affirmative, they must, on being required, declare the same. § 436. Verdict may be general or special. The jury may either render a general verdict, or when they are in doubt as to the legal effect of the facts proved, they may, except upon an indictment for libel, find a special verdict. § 437. General verdict. A general verdict upon a plea of not guilty is either "guilty" or "not guilty; " which imports a conviction or acquittal of the offense charged in the indictment. Upon a plea of a former conviction or acquittal of the same offense, it is either " for the people," or "for the defendant." § 438. Special verdict. A special verdict is that by which the jury find the facts only, leaving the judgment to the court. It must present the conclusions of fact, as established by the evidence, and not the evidence to prove them; and these conclusions of fact must be so pre- sented, as that nothing remains to the court, but to draw from them conclusions of law. § 439. Special verdict, hoiv rendered. The special verdict must be reduced to writing, by the jury or in their presence, entered upon the minutes of the court, read to the jury, and agreed to by them, before they are discharged. 614 CODE OF CEIMIJST'AL PKOCEDUEE. § 440. Same. The special verdict need not be in any particular form but is sufficient, if it present intelligibly the facts found by the jury. § 441. Special -rerdict, hoir brought to argument. The special verdict may be brought to argument by either party, upon Tfive days' notice to the other, at the same or another term of the court; and upon the hearing thereof, the counsel for the defendant may conclude the argument. § 442. Judgment thereon. The court must give judgment upon the special verdict, as follows: 1. If the plea be not guilty, and the facts prove the defendant guilty of the ofiFense charged in the indictment, or of any other offense of which he could be convicted, under that indictment, as provided in sections 444 and 445, judgment must be given accord- ingly; but if otherwise, judgment of acquittal must be given; 2. If the plea be a former conviction or acquittal of the same offense, the court must give judgment of conviction or acquittal, according as the facts prove or fail to prove the former conviction or acquittal. § 443. 'When special verdict defective, neiv trial to be ordered. If the jury do not, in a special verdict, pronounce affirmatively or negatively on the facts necessary to enable the court to give judgment, or if they find the evidence of facts merely, and not the conclusions of fact from the evidence, as established to their satisfaction, the court must order a new trial. § 444. [Am'd, 1900.] Upon indictment for offense consisting of different degrees, jury may convict of any degree, or of any attempt to commit the offense. Upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the crime. Upon a trial for murder or manslaughter, if the act complained of is not proven to be the cause of death, the defendant may be convicted of assault in any degree constituted by said act, and warranted by the evidence. A conviction upon a charge of assault is not a bar to a subsequent prosecution for manslaughter or murder, the person assaulted dies after the conviction, in case death results from the injury caused by the assault. § 445> In other cases, jury may convict of any offense necessarily included in that charge. In all other cases, the defendant may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment. § 446. On indictment against several, jury may render a verdict as to some, and the cause be again tried as to the others. On an indictment against one or more, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment must be entered accordingly; and the case, as to the rest, may be tried by another jury. § 447. In nrhat cases court may direct a reconsideration of the verdict. When there is a verdict of conviction, in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion, and direct PKOCEEDIA^GS IJST CKIMINAL ACTIOXS. 615 the jury to reconsider their verdict; and if, after the reconsideration they return the same verdict, it must be entered. But when there is a verdict of acquittal, the court cannot require the jury to reconsider it. § 448. Same. If the jury render a verdict which is neither a general or a special verdict, as defined in sections 437 and 438, the court may, with proper instructions as to the law, direct them to reconsider it; and it cannot be recorded, until it be rendered in some form, from which it can be clearly understood what is the intent of the jury, whether to render a general verdict, or to find the facts specially, and leave the judgment to the court. § 449. When jadgment may be given upon an informal verdict. If the jury persist in finding an informal verdict, horn which, however, it can be clearly understood, that their intention is to find in favor of the defendant, upon the issue, it must be entered in the terms in which it is found, and the court must give judgment of acquittal. But no judgment of conviction can be given, unless the jury expressly find against the defendant, upon the issue, or judgment be given against him on a special verdict. § 450. Polling the jnry. When u verdict is rendered, and before it is recorded, the jury may be polled, on the requirement of either party; in which case, they must be severally asked whether it is their verdict; and if any one answer in the negative, the jury must be sent out for further deliberation. TITLE VIII. OF THE PROCEEDINGS AFTER TRIAL AND BEFORE JUDGMENT, CHAPTER IV. SUSPENSION OF JUDGMENT. § 470-a. Suspension of sentence; suspension of esecntion of jadgment. If, after a plea or verdict of guilty or after a verdict against the defendant upon a plea of former conviction or acquittal, sentence shall have been suspended, the <;ourt may impose any sentence or make any commitment which might have been imposed or made at the time of conviction. If sentence shall have been imposed and execution of the whole or a part of the judgment suspended, the court may revoke the order sus- pending execution of judgment and order executed the judgment or the part thereof the execution of wliich shall have been suspended or may modify the judgment so as to provide for the imposition of any punishment which might have been imposed at the time of conviction. The court may impose sentence or order judgment executed with or without modifica- tion as hereinabove provided at any time after such suspension of sentence or suspen- sion of execution of judyment within the longest period for which the defendant might have been sentenced or, if the defendant is on probation and the period of probation exceeds the period for which the defendant might have been sentenced, at any time while the defendant remains on probation; but not after the expiration of such period or periods, unless the defendant shall have been convicted of another crime committed during such period. 616 CODE OF CEIMINAL PEOCEDUKE. § 470-b. Effect thereof. If judgment be not pronounced as in the last section provided, nevertheless: 1. For the purpose of indictment and conviction of a second offense, the plea or verdict and suspension of sentence or suspension of execution of the whole or a part of the judgment after sentence shall be regarded as a conviction, and shall be pleaded according to the fact. 2. The said plea or verdict and suspension of sentence or suspension of execution of the whole or a part of the judgment after sentence may be proved in the manner provided by statute for proving a conviction for the purpose of affecting the weight of the defendant's testimony in any action or proceeding, civil or criminal. TITLE XII. OF MISCEIXANEODS FBOCEEDINGS. Chapteb I. Bail. II. Compelling the attendance of witnesses. III. Examination of witnesses, conditionally. rV. Examination of witnesses on commission. V. Inquiry into the insanity of the defendant, before or during the trial, or after conviction. VI. Compromising certain crimes, by leave of the court. CHAPTER I. Abticlb I. In what cases the defendant may be admitted to bail. II. Bail, upon being held to answer, before indictment. III. Bail, upon an indictment, before conviction. IV. Bail, upon an appeal. V. Deposit, instead of bail. VI. Surrender of the defendant. VII. Forfeiture of the undertaking of bail, or of the deposit of money. VIII. Ee-commitment of the defendant, after having given bail, or deposited money instead of bail. ARTICLE I. IN WHAT CASES THE DEFENDANT MAT BE ADMITTED TO BAIL. Section 550. Admission to bail, defined. 551. Taking bail, defined. 552. Offenses not bailable. 553. In what cases defendant may be admitted to bail, before conviction. 554. Bail. 554a. Bail of certain railroad employes. 555. Nature of bail before conviction. 556. Nature of bail after conviction and upon appeal. § 550. [Am'd, 1908, 1909.] Admission to bail, defined. When the defendant is held to appear for examination, bail for such appearance may be taken either, 1. By the magistrate who issued the warrant or before whom the same is returnable. PEOCEEDINGS IN CEIMINAL ACTIONS. GIT or in case both of said magistrates are incapacitated or are absent from the jurisdiction, and in case tlie amount of bail shall have been fixed by one or other of them, any other magistrate of like jurisdiction, or 2. By any judge of the supreme court, or 3. By any judge of the court of general sessions. § 551. Taking bail, defined. The taking of bail consists in the acceptance, by a competent court or magistrate, of the undertaking of sufficient bail for the appearance of the defendant according to the terms of the undertaking, or that the bail will pay to the people of this state a specified sum. ' § 552. [Am'd, 1909.] Offenses not bailable. The defendant cannot be admitted to bail except by a justice of the supreme court or by a judge of the court of general sessions where he is charged, 1. With a crime punishable with death. 2. With the infliction of a probably fatal injury upon another, and under such circumstances, as that, if death ensue, the crime would be murder. § 553. In xrliat cases defendant be admitted to bail, before conviction. If the charge be for any other crime, he may be admitted to bail, before conviction, as follows: 1. As a matter of right, in cases of misdemeanor; 2. As a matter of discretion, in all other cases. § 554. [Am'd, 1896, 1903, 1905, 1906, 1912.] In what cases be may be admitted to bail, before conviction, etc. Before conviction, defendant may be admitted to bail : 1. For his appearance before the magistrate on the examination of the charge, before, being held to answer. 2. To appear at the court to which the magistrate is required by section two hundred and twenty-one to return the depositions and statements upon the defendant being held to answer after examination. 3. After indictment, either upon the bench warrant issued for his arrest or upon an order of the court committing him or enlarging the amount of bail, or upon his being surrendered by his bail, to answer the indictment in the court in which it is found, or to which it may be sent or removed for trial. And any captain or sergeant of police, or acting sergeant of police, or lieutenant of police, in any city or village of this state, must take bail for his appearance before a competent and accessible magistrate the next morning from any person arrested for a misdemeanor between eleven o'clock in the morning and eight o'clock the next morning, just as soon as the person offers himself as bail for the person or persons arrested. When such captain or sergeant of police, or acting sergeant of police, or lieutenant of police, takes bail, he must take it by an undertaking in the form in this section mentioned, executed in his presence by the defendant and at least one surety, who must justify under oath, or by the deposit of money or personal property accompanied by an oath of ownership, in the cases and in such manner as hereinafter provided; and for these purposes the officer may administer all necessary oaths. The amount of bail taken by a captain or sergeant of police or acting sergeant of police, or lieutenant of police, under this section, must be as follows: If the offense be the violation of a corporation ordinance, the amount of the bail must be one hundred dollars, except that if a conviction upon the charge would render the defendant liable only for a fine, the amount of the bail must be double the largest fine that could be imposed; if the conviction would render him liable to impris- 63 8 CODE OF CEIMIJSTAL PEOCEDUEE. onment for thirty days or less, the amount of bail must be two hundred dollars; or, in such last mentioned case, it shall be in the discretion of such captain, sergeant of police, or acting sergeant of police, or lieutenant of police, to parole said prisoner, on his promise to appear on the following day before the proper magistrate. In all other cases the amount of bail must be five hundred dollars. In lieu of a bondsman, if the offense be the violation of a corporation ordinance where conviction renders the defend- ant liable to a fine only, he may give his personal undertaking, secured by a deposit with such captain or sergeant of police, or acting sergeant of police, or lieutenant of police, of money or personal property equal in value to double the laregst fine that can be imposed. If personal property, the person making or authorizing the deposit shall take and subscribe an oath, that he is the owner thereof, and authorized to make sucii deposit. A false oath in this particular is declared to be perjury and punishable accordingly. Money or personal property thus deposited conveniently transportable shall be taken to the court, by the officer making the arrest, at the time defendant is lequired to appear and, upon the conditions of the undertaking being satisfied, it shall be restored to the defendant. If the deposit be personal property which cannot con- veniently be brought to court, the defendant shall be entitled to an order from the magistrate directing the delivery thereof to the owner after the conditions of the undertaking have been satisfied. The form of undertaking, with surety, must be as follows : We, A B, defendant, and residing at , in , and C D, surety, residing at , hereby jointly and severally undertake that the above A B, defendant, shall appear and answer the complaint (describing it briefiy) before the magistrate before whom he would be arraigned if not bailed on the day of , eighteen hundred and ninety , and at o'clock, to answer to the complaint, and there remain to answer, subject to an order of the magistrate, and render himself in execution thereof, or if he fail to perform either of these conditions, then he will pay to the people of the state of New York the sum of dollars. The form of the personal undertaking, the deposit, shall be as follows: I, A B, defendant, residing at number street, in the of , hereby personally undertake and agree, that I will appear and answer to the complaint of violating the ordinances of the corporation of , to wit: (here briefly state charge) before the magistrate before whom I would be arraigned if not bailed, on the day of , eighteen hundred and ninety , at o'clock in the noon, to answer to the complaint, and there remain to answer, subject to any order of the magistrate, and render myself in execution thereof, or if I fail to perform either of these conditions, then I will pav to the people of the state of New York the sum of dollars, to secure which payment there has been deposited herewith (if money, state amount- if personal property, briefly describe). Oath as to Ownekship. State of ] County of ( being duly sworn, says, that he is the owner of the personal property, mentioned and described in the foregoing undertaking, and is authorized to, and hereby does, pledge and deposit the same, as security for the appearance of the defendant to answer the complaint made against him. Subscribed and sworn to before me the day of 19 . . 4. Whenever a child under the age of sixteen years is arrested charged with juvenile delinquency, a captain or lieutenant or sergeant of police, in any city may accept, in ss.. PEOCEEDINGS IN" CKIMINAL ACTIONS. 619 lieu of bailj the personal recognizance in writing, without security, of a parent, guardian or other lawful custodian of such child, to produce such child before the proper court or magistrate on the following day, at a time and place to be specified in said recognizance; and thereupon he shall place said child in the care and custody of the person executing the same who, on failure to so produce said child, pursuant to the terms of such recognizance, shall be liable to punishment by the court or magis- trate, as for a criminal contempt in the manner provided in the judiciary law. A similar recognizance , may be taken by the court or magistrate for the subsequent production of such child at a time and place to be specified therein, pending the final termination of the proceedings, and noncompliance therewith shall subject the person giving the same to the same punishment. Such failure to produce the child shall in either case vacate the said recognizance and warrant the immediate arrest of the child by order of the court or magistrate. But nothing in this act contained shall authorize the acceptance of such personal recognizance for the production of a child who has been the subject of a crime or a witness to its commission by another. § 554-a. Bail of certain railroad employes. Whenever a person employed as an engineer, fireman, motorman, conductor, trainman or otherwise, on a train or car of a steam, elevated or street surface railroad, is arrested in any city on a criminal charge, arising from an accident in connection with the operation of such train or car, resulting in an injury or death to a person or injury to property, such engineer, fireman, motorman, conductor, trainman or other employe, shall be immediately taken before a magistrate, if one is accessible, and otherwise, before a captain or sergeant of police, or acting sergeant of police, or lieutenant of police, in charge of a police station in such city, and be given an opportunity to be admitted to bail. Such bail shall be taken in the same manner, so far as practicable, as is provided by section five hundred and fifty-four of this code, for the talcing of bail in case of misdemeanors by a captain or sergeant of police, or acting sergeant of police, or lieutenant of police, in a city or village, except that the amount of bail shall be fixed by such officer at not exceeding one thousand dollars, and except that the under- taking shall provide for the appearance of the defendant before the magistrate, coroner, or other officer, who, except for this section, would be authorized to take such bail. Such ofiicer may however in his discretion, instead of exacting bail, release such employe on his own recognizance, conditional for his appearance as above provided in case an undertaking is required. (Am'd by L. 1912, ch. 99, in effect April 3, 1912.) § 555. Nature of bail after conviction. After the conviction of a crime not punishable with death, a defendant who lias appealed, and when there is a stay of proceedings, but not otherwise, may be admitted to bail: 1. As a matter of right, when the appeal is from a judgment imposing a fine only; 2. As a matter of discretion in all other cases. § 556. Nature of bail after conviction and upon appeal. After conviction and upon an appeal, the defendant may be admitted to bail as follows : 1. If the appeal be from a judgment imposing a fine only, on the undertaking of bail, that he will pay the same, or such part of it as the appellate court may direct, if the judgment be affirmed or modified or the appeal be dismissed; or the certificate of reasonable doubt be vacated as provided in section five hundred and twenty-nine; 2. If judgment of imprisonment have been given, that he will surrender himself in execution of the judgment, upon its being affirmed or modified, or upon the appeal being dismissed, or if the certificate of reasonable doubt be vacated as aforesaid. (Am'd by L. 1897. ch. 427.1 620 CODE OF uElMIi^AL PROCEDUKE. ARTICLE II. BAIL, UPON BEING HELD TO ANSWEB, BEFORE INDICTMENT. Section 557. By what courts or magistrates defendant may be admitted to bail. 558. Same. 559. At what time defendant may be admitted to bail by a magistrate. 660. In cities, if crime be felony, application for admission to bail must be on notice. 561. Form of order, if made by the court. 562. Form of order, if made by a magistrate. 563. If application be denied by a magistrate, no subsequent application caa be made to another magistrate. 564. Violation of last section a misdemeanor. Admission to bail in such case, how revoked or vacated. 565. Construction of last two sections. 566. Decision final. 567. Bail, by whom taken. 568. How put in; and form of undertaking. 569. Qualifications of bail. 570. Bail, how to justify. 571. Same. 572. Same. 573. Bail may be examined as to sufiieiency. 574. Other testimony may be received aa to their sufBciency. 575. Decision as to their sufficiency; and filing affidavits of justification and undertaking. 576. On allowance of bail, and execution of undertaking, defendant to be dis- charged. Form of discharge. 577. If bail disallowed. 577a. Bail by fidelity or surety company. S 557. By what courts or magistrates defendant may be admitted to bail. When the defendant has been held to answer, as provided in section 208, the admission to bail may be by the magistrate by whom he is so held, if he be one of the magistrates mentioned in section 147, and the crime charged is a misdemeanor, or a felony punish- able with imprisonment, not exceeding five years; or if he be a judge of the supreme court; or any judge authorized to preside in a court having jurisdiction to try indict- ments, in all cases where bail may be taken, before conviction, as provided in sec. 554. § 558. Same. When, by reason of the degree of the crime, the committing magistrate has not authority to admit to bail, the defendant may be admitted to bail by one of the officers having authority to admit to bail in the case, as provided in the second subdivision of the last section, or by the court to which the depositions and statement are returned by the committing magistrate, as provided in section 231, if the case be triable therein, or if not, by the court to which after indictment, it may be sent or removed for trial. § 559. At what time defendant may be admitted to bail by a magistrate. The defendant may be admitted to bail by a magistrate, as provided in the last two Bections, upon being held to answer, or at any time before the return of the depositions PEOCEEDINGS IE" CEIMINAL ACTIONS. 621 and statement, to the court. After that time he can be admitted to bail, only by a judge presiding in the court in which the crime is triable, if it be sitting, or if not, by one of the magistrates mentioned in the second subdivision of section 557. § 560. In cities, if crime be felony, application for admission to bail mnst be on notice. In the several cities of this state if the crime charged be a felony, the application for admission to bail must be upon notice of at least two days, to the district attorney of the county, unless the magistrate by order fixes a shorter time ; and the committing deposition and statement, or a copy thereof, to the court or magistrate to whom the application for bail is to be made. g 561. Form of order, if made by the conrt. If the application be to the court, an order must be made, granting or denying it, and if it be granted, stating the sum in which bail may he taken. § 562. Form of order, if made by a magistrate. If the application be to a magistrate, he must certify, in writing, his decision granting or denying the same; and if he grant the application, must state in the certificate the sum in which bail may be taken; which certificate he must cause to be forthwith filed with the clerk of the court to which the depositions and statement are required to be sent. § 563. If application be denied by a magistrate no subsequent application can be made to another magistrate. If an application for admission to bail, made to a magistrate, be denied, not more than two subsequent applications therefor can be made to other magistrates, except that an application can be made to any magistrate mentioned in subdivision two of section 557, if no application has been previously made to a magistrate mentioned therein. § 564. Violation of last section a, misdemeanor. Admission to bail in such case hour revoked or vacated. A violation of the last section is punishable as a misdemeanor, and the admission of the defendant to bail contrary thereto may be revoked by the magistrate who made it, or vacated by the court to which the depositions and statement are or must be sent, as provided in section 221, or to which, after indictment, the action must be sent for trial. § 565. Construction of last two sections. The provisions of the last two sections shall not be construed to limit the power of any judge presiding in the court in which the offense is triable to let the defendant to bail. § 566. Decision final. The decision of the judge presiding in the court in which the crime is triable, grant- ing or denying bail, is final, except as provided in section 563. § 567. [Am'd, 1904.] Bail, by whom taken. If the defendant be admitted to bail by a magistrate, the bail may be taken by any magistrate in the county wherein the defendant is held to answer, as provided in section two hundred and eight. § 568. How put in; and form of undertaking. Bail is put in by written undertaking executed by suflicient surety [with or without the defendant, in the discretion of the magistrate] and acknowledged before the magis- trate in substantially the following form : 622 CODE OF CKIMINAL PROCEDUKE. "An order having been made on the day of , eighteen hundred and , by A B, a justice of the peace of the town of [or as the case may be] that C D be held to answer upon a charge of [stating briefly the nature of the crime], upon which he has been duly admitted to bail in the sum of dollars. " We, C D, defendant, if the defendant join in the undertaking, of [stating his place of residence and occupation] and E F [and G H, stating place of residence and occupation], surety or sureties [as the case may be], hereby undertake jointly and severally, that the above-named C D, shall appear and answer the charge above men- tioned, in whatever court it may be prosecuted; and shall at all times render himself amenable to the orders and process of the court; and, if convicted, shall appear for judgment, and render himself in execution thereof; or if he fail to perform either of these conditions, that we will pay to the people of the state of New York the sum of dollars " [inserting the sum in which the defendant is admitted to bail]. § 569. Qnalifications of bail. The qualifications of bail are as follows: 1. He must be a resident, and a householder or freeholder within the state, and, unless the magistrate otherwise direct, within the county; 2. He must be worth the amount specified in the undertaking, exclusive of property exempt from execution; but the magistrate, on taking bail, may require two sureties, or may allow two or more to justify severally in amounts less than that expressed in the undertaking, if the whole justification be equivalent to that of one suflBcient surety. § 570. Bail, how to justify. Except as prescribed in the next section, the bail may, in the exercise of a just discretion, be taken, and may justify, without notice to the district attorney, or reasonable notice of the intention to give bail may be required by the court or magis- trate, to be given to the district attorney. When given, the notice shall be as prescribed in the next section. § 571. Same. In several cities of this state, if the crime charged being a felony, a previous note lu writing of at least two days, of the time and place of giving the bail, must be served upon the district attorney of the county, stating: 1. The names, place of residence and occupations of the proposed surety or sureties; 2. A general description of the real or personal property of the surety or sureties, in respect to which they propose to justify as to their sufBciency, with the incumbrances thereon, by mortgage, judgment or otherwise, if any. The district attorney may waive the giving of the notice lierein provided for, or a. shorter time than two days may be directed by the court or magistrate requiring the notice. § 572. Same. The surety or sureties must in all cases justify by affidavit, taken before the magis- trate. The affidavit must state that each of the sureties possesses the qualifications provided in section 569. § 573. Bail may be examined as to snffioianoy. The district attorney, or the magistrate, may thereupon further examine the sureties upon oath, concerning their sufficiency, in such manner as the magistrate may deem proper. The questions put to the sureties, and their answers must be reduced to writing, and must be subscribed by them. PKOCEEDINGS IN CRIMINAL ACTIONS. 623 § 574. Decision as to their sufficiency; and filing affidavits of jnstificatiou and undertaking. The magistrate may also receive other testimony, either for or against the sufficiency of the bail, and may from time to time adjourn the taking of bail, to afford an oppor- tunity of proving or disproving its sufficiency. § 575. Order. When the examination ig closed, the magistrate must make an order, either allowing or disallowing the bail, and must forthwith cause the same, with the affidavits of justification, and the undertaking of bail, to be filed with the clerk of the court to which the depositions and statement must be sent, as prescribed in section 221. § 576. On allo-irance of bail, and execution of undertaking, defendant to be discharged; form of discharge. Upon the allowance of the bail and the execution of the undertaking, the court or magistrate must make an order, signed by him, with his name of office, for the discharge of the defendant, to the following effect: " To the sheriff of the county of [or, in the city and county of Kew York, ' to the keeper of the city prison of the city of New York '] : "A. B., who is detained by you on a commitment to answer a charge for the crime of [designating it generally], having given sufficient bail to answer the same, you are commanded forthwith to discharge him from your custody." § 577. Of bail disallowed. If the bail be disallowed, the defendant must be detained in custody until lawfully discharged. § 577-a. [Added, 1912.] Bail by fidelity or surety company. Bail may be given by a fidelity or surety company authorized to transact business within this state, and such company shall justify through its officers or attorney in the manner required by law of fidelity and surety companies. Any such company may execute the undertaking as surety by the hand of its officers or attorney, duly author- ized thereto by resolution of its board of directors, a certified copy of which, under its corporate seal, shall be filed with the undertaking. ARTICLE V. DEPOSIT INSTIXAD OP BAIL. Section 586. Deposit, when and how made. 587. May be made after bail given, and before forfeiture; and in such case bail discharged. 588. Bail may be given after deposit; and in such case money deposited to be refunded. 589. Deposit to 'be applied to payment of judgment of fine, and sm-plus to be refunded. § 586. [Am'd, 1912, 1913, 1918.] Deposit of money or liberty bonds, when and how made. The defendant, at any time after an order admitting him to bail, instead of giving bail, or a witness committed in default of an undertaking to appear and testify, instead of entering into such an undertaking, may deposit with the county treasurer of the county in which he is held to answer or appear, or in the city of New York with the 624 CODE OF CEIMINAL PEOCEDUEE. chamberlain, or with the magistrate by whom he is so held, or with any other justice or magistrate of the same court or with the clerk or deputy clerk of a court held by any such justice or magistrate, or with the warden, deputy warden or keeper in charge of the jail in which he so stands committed, the sum mentioned in the order of com- mitment, or a liberty bond or bonds in siich denomination or denominations as to make that sum, and upon delivering to the officer in whose custody he is, a certificate of such deposit from such justice, magistrate, clerk or deputy clerk, or upon tlie said sum being deposited in money or bonds as aforesaid with such warden, deputy warden or keeper in charge, the defendant must forthwith be discharged from custody. When any such deposit is so made, the justice, magistrate or other person with whom the money or bonds are deposited shall deposit the sum in money or bonds so received by him in the same manner as may be by law provided for the payment and deposit of money with the clerk of such court. Upon the termination of the proceeding the money or bonds so deposited shall, by order of the presiding justice or magistrate, be refunded to such defendant or witness. Whenever any person other than the defendant, or witness mentioned in this section, in behalf of the defendant, or witness, deposits with the person authorized to receive the same, the sum of money or bonds required to procure the discharge as aforesaid of said defendant, or witness, the defendant or witness may execute a consent that upon the termination of the proceeding in which the deposit is made, the money or bonds so deposited be refunded to the person depositing the same. Said consent shall be filed with the clerk of the court in which the proceeding is pending and upon the termination of the proceeding, the presiding justice or magistrate shall make an order directing the county treasurer, or in the city of New York the chamberlain, to refund the money or bonds deposited to the person making the deposit and the order directing such refund shall contain an endorsement by the clerk to the effect that stich consent has been executed and filed. § 587. May be made after bail given, and before forfeitures; and in such case bail discharged. If the defendant have given bail, he may, at any time before the forfeiture of the undertaking, in like manner deposit the sum mentioned in the undertaking; and upon the deposit being made the bail is exonerated. § 588. Bail may be given after deposit; and in such case money deposited to be refunded. If money be deposited, as provided in the last section, bail may be given, in the same manner as if it had been originally given upon the order for admission to bail, at any time before the forfeiture of the deposit. The court or magistrate before whom the bail is taken must thereupon direct, in the order of allowance, that the money deposited be refunded by the county treasurer to the defendant and it must be refunded accordingly. § 589. Deposit to be applied to payment of judgment of fine and surplus to be refunded. When money has been deposited, if it remain on deposit and unforfeited at the time of a judgment for the payment of a fine, the county treasurer must, under direction of the court, apply the money in satisfaction thereof, and after satisfying the fine, must refund the surplus. If any, to the defendant. PKOCEEDINGS IN CKIMINAL ACTIONS. 625 CHAPTER II. COMPELLING THE ATTENDANCE OF WITNESSES. Section 607. Subpoena, defined. 608. Magistrate may issue subpoenas, on information or presentment. 609. District attorney may issue subpoenas for witnesses before grand jury. 610. He may also issue subpoenas, for the people, on trial of an indictment. 610a. Attendance of witnesses for people when trial postponed. 611. Clerk may issue blank subpoenas, for witnesses for defendant, on trial. 611a. General regulations concerning subpoenas. 612. Form of subpoena. 613. Requirement in subpoena, to produce books, papers and documents. 614. Subpoena, by whom served. 615. How served. 615a. Subpoenaing witnesses in another county. 616. Fees of witnesses in behalf of the people. 617. Fees of defendant's witnesses. 618. Duty of witness, on service of subpoena. 618a. Subpoena of witnesses to testify in criminal actions without the state. 618b, Judge may order witness to enter into an undertaking for appearance or be committed on refusal to comply therewith. 619. Disobedience to subpoena, or refusal to be sworn or to testify, how punished. 619a. Punishment of witness for default in appearing pursuant to recognizance. 619b. Mileage fees for subpoena service. § 607. Subpoena, defined. The process by which the attendance of a witness, before a court or magistrate is required, is a subpoena. § 608. Magistrate may issue subpoenas, for -witnesses before grand jury. A magistrate, before whom an information is laid, may issue subpoenas, subscribed by him, for witnesses within the state, either on behalf of the people or of the defendant. § 611-a. [Added, 1909.] General regulations concerning subpoenas. Whenever any magistrate shall issue any subpoena in any criminal proceeding or trial, he shall endorse upon the back thereof a memorandum showing whether the same was issued for the people or for the prisoner; and every officer or other person who shall insert the name of witnesses in a subpoena issued for the people, intended for the prisoner, with intent thereby to deceive any person, or to obtain any pay as for services in subpoenaing witnesses for the people, shall be deemed guilty of a misdemeanor; and no such magistrate shall charge or be allowed for more than six subpcenas in any one criminal case, nor shall any board of supervisors allow any charge for issuing or serving any subpoena in any criminal case or proceeding issued or served on behalf of a defendant. § 612. Form of subpoena. A subpcena, authorized by the last four sections, must be substantially in the following form: " In the name of the people of the state of New York: To A. B. " You are commanded to appear before C. D., a justice of the peace of the town of [or " the grand jury of the county of ," or " the county 40 626 CODE OF CKIMIJSTAL PEOCEDUEE. court of the county of ," or as the case may be], at [naming the place], on [stating the day and hour], as a witness in a criminal action prosecuted by the people of the state of New York, against E. F. " Dated at the town of , [as the case may be], the day of 19... " G. H., justice of the peace," [or " I. K., district attorney," or " By order of the court, L. M., clerk," as the case may be] . § 613. [Am'd, 1897.] Requirement in subpoena, to produce, etc. If chattels, books, papers or documents be required, a direction to the following effect must be contained in the subpoena: "And you are required also to bring with you the following" (describing intelligibly the chattels, books, papers or doeumenta required). § 614. Subpoena, by whom served. A peace officer must serve, in his county, city, town or village, as the case may be, any subpoena delivered to him for service, either on the part of the people or of the defendant. And must make a written return of the service, subscribed by him, stating the time and place of service without delay. A subpoena may, however, be served by any other person. § 615. How served. A subpoena is served, by delivering it, or by showing it, and delivering a copy thereof, to the witness personally. § 615-a. [Added, 1909.] Subpoenaing witnesses in another county. Whenever it shall become necessary to send subpoenas into another county for wit- nesses on criminal process, the district attorney is hereby empowered to send them to the sheriff of the county in which the said witnesses reside, whose duty it shall be to serve the same, and make his return without delay to such district attorney. § 619. [Am'd, 1909.] Disobedience to subpoena, or refusal to be s-worn or to testify, how punished. Disobedience to a subpoena, or a refusal to be sworn or to testify, may be punished by the court or magistrate, as for a criminal contempt in the manner provided in the judiciary law. § 619-a. [Added, 1909.] Punishment of vritness for default in appearing pursuant to recognizance. The court before which any witness on the part of the people in a criminal prosecu- tion shall have been recognized to appear, by recognizance taken before a magistrate or court of record having criminal jurisdiction, may proceed against such witness for any default in appearing, pursuant to the condition of his recognizance, by process of attachment, in the same manner and with like proceedings thereon as if such witness had failed to appear in disobedience to a subpoena; and the recognizance of such wit- ness, filed with the clerk of the court, if taken before a magistrate, or the record of the recognizance, if taken before a court of record, and the entry in the minutes of the clerk of the court of the default of such witness, shall be sufficient evidence for issuing such process of attachment. No district attorney shall receive any fee for issuing a subpoena for the appearance of any witness who shall have been recognized to appear in the same prosecution and at the same court designated in such subpoena. The issuing of an attachment against a witness pursuant to this section, shall not be a bar to the prosecution of his recognizance. PKOCEEDINGS IN CEIMINAL ACTIOJSTS. 627 § 619-1i. [Added, 1909.] Mileage fees for subpoena service. Whenever a subpoena for witnesses in criminal eases or complaints, containing one or more names, shall be served by a constable or other officer, such officer shall be allowed for mileage only for the distance, going and returning, actually traveled to make such service upon all the witnesses in such a complaint, and not separate mileage for each witness, unless the board of supervisors auditing accounts for such services shall deem it equitable to make a further allowance. CHAPTER VI. COMPBOMISING CKETAIN CBIMES, BY UIAVB OP THE COTTBT. Section 663. Certain crimes, for which party injured has a civil action, may be com- promised. 664. Compromise to be by permission of the court; order thereon. 665. Order, a bar to another prosecution. 66G. No public offense to be compromised, except as provided in this chapter. 5 663. Certain crimes for 'which the party injured has a civil action, may he compromised. When a defendant is brought before a magistrate, or held to answer on a charge of a misdemeanor, for which the person injured by the act constituting the crime has a remedy by civil action, the crime may be compromised, as provided in the next section, except when it was committed: 1. By or upon an officer of justice while in the execution of the duties of his office; 2. Riotously; or 3. With an intent to commit a felony. § 664. Compromise to be by permission of the court; order thereof. If the party injured appear before the magistrate, or before the court to which the depositions and statements are required, by section 231, to be returned at any time before trial or commitment by the magistrate, or trial on indictment for the crime and acknowledged in writing that he has received satisfaction for the injury, the magistrate or court may, in his or its discretion, on payment of the costs and expenses incurred, if such magistrate or court shall see fit so to direct, order all proceedings to be stayed upon the prosecution and the defendant be discharged therefrom. But in that case, the reason for the order must be set forth therein and entered upon the minutes. § 665. Order a bar to another prosecution. The order authorized by the last section is a bar to another prosecution for the same offense. § 666. No public offense to be compromised, except as provided in this chapter. No crime can be compromised, nor can any proceeding for the prosecution or punsh- ment thereof upon a compromise, be stayed, except as provided in sections 663 and 664. 628 CODE OF CEIMmAL PEOCEDUKE. CHAPTER IX. PBOCEEDINGS AGAINST COEPOEATIOKS. Section 675. Summons upon an information or presentment against a corporation by whom issued, and when returnable. 676. Form of summons. 677. When and how served. 678. Examination of the charge. 679. Certificate of the magistrate|, and return thereof with the depositions. 680. Grand jury may proceed as in the case of a natural person. 681. Appearance, and plea to indictment, and proceedings thereon. 682. Fine, on conviction, how collected. § 675. Summons upon an information or presentment against a corpora- tion, by ivlioia issued, and wben returnable. Upon an information against a corporation, the magistrate must issue a summons, signed by him, with his name of office, requiring the corporation to appear before him, at a specified time and place, to answer the charge; the time to be not less than ten days after the issuing of the summons. § 676. Form of the summons. The summons must be in substantially the following form: " County of Albany [or as the case may be]. " In the name of the people of the state of New York : "To the [naming the corporation]. " You are hereby summoned to appear before me, at [naming the place] on [specify- ing the day and hour], to answer the charge made against you, upon the information of A. B., for [designating the offense, generally]. " Dated at the city [or town '] of the day of , 19... "G. H., justice of the peace" [or as the case may be.] § 677. Wben and how served. The summons must be served at least five days before the day of appearance fixed therein, by delivering a copy thereof and showing the original to the president, or other head of the corporation, or to the secretary, cashier, or managing agent thereof. § 678. Examination of the charge. At the time appointed in the summons, the magistrate must proceed to investigate the charge, in the same manner as in the case of a natural person brought before him, so far as those proceedings are applicable. § 679. Certificate of the magistrate, and return thereof with the deposi- tion. After hearing the proofs, the magistrate must certify upon the depositions, either that there is or is not sufficient cause to believe the corporation guilty of the offense chargett, and must return the depositions and certificates, in the manner prescribed in section 221 § 680. Grand jury may proceed as in the C9,se of a natural person. If the magistrate return a certificate that there is sufficient cause to believe the corporation guilty of the offense charged, the grand jury may proceed thereon, as in the case of a natural person held to answer. PKOCEEDI^GS m CEIMINAL ACTIONS. 629 CHAPTER X. ENTITLING AFFIDAVITS. Section 683. Affidavits defectively entitled, valid. § 683. Affidavits defectively entitled, valid. It is not necessary to entitle an affidavit or deposition, in the action, whether taken before or after indictment, or upon an appeal; but if made without a title, or with an erroneous title, it is as valid and effectual for every purpose, as if it were duly entitled, if it intelligibly refer to the proceeding, indictment or appeal in which it is made. CHAPTER XI. EEEORS AND MISTAKES, IN PLEADINGS AND OTHEB PKOCBEDINGS. Section 684. Errors, etc., when not material. § 684. Errors, etc., ivhen not material. Neither a departure from the form or mode prescribed by this Code, in respect to any pleading or proceedings, nor an error or mistake therein, renders it invalid, unless it have actually prejudiced the defendant, or tend to his prejudice, in respect to a sub. stantial right. CHAPTER XII. DISPOSAL OF PBOPEETY, STOLEN OR EMBEZZLED. Section 686. When property, alleged to be stolen or einbezzled, comes into custody of peace officer. 686. Order for its delivery to owner. 687. When it comes into custody of magistrate, he must deliver it to owner, on proof of title and payment of expenses. 688. Court in which trial is held for stealing or embezzling it, may order it to be delivered to owner. 689. If not claimed in six months, to be delivered to county superintendent of the poor, or in New York, to commissioners of charities and correc- tions. 690. Receipt for money or property, taken from a person arrested for a public offense. 691. Duties of police clerks in the city of New York, etc. § 685. VThen property, alleged to lie stolen or embezzled, come into custody of peace officer. When property, alleged to have been stolen or embezzled, comes into the custody of a peace officer, he must hold it, subject to the order of the magistrate authorized by the next section to direct the disposal thereof. § 686. Order for its delivery to owner. On satisfactory proof of the title of the owner of the property, the magistrate before whom the information is laid, or who examined the charge against the person accused of stealing or embezzling the property, may order it to be delivered to the 630 CODE OF CKIMINAL PEOCEDUKE. owner, unless its temporary retention be deemed necessary in furtherance of justice, on his paying the reasonable and necessary expenses incurred in its preservation, to be certified by the magistrate. The order entitles the owner to demand and receive the property, § 687. Wlien it comes into custody of magistrate lie must deliver it to oirner, on proof of title and payment of expenses. If property stolen or embezzled come into the custody of a magistrate, it must, unless its temporary retention be deemed necessary in furtherance of justice, be delivered to the owner, on satisfactory proof of his title, and on his paying the necessary expenses incurred in its preservation, to be certified by the magistrate. § 688. Conrt in which trial is had for stealing or embezzling it, may order it to be delivered to owner. If property stolen or embezzled have not been delivered to the owner, the court before which a trial is had for stealing or embezzling it, may, on proof of his title, order it to be restored to the owner. § 689. If not claimed in six months to be delivered to connty superintend- ent of the poor or in New Torh, to commissioners of charities, and corrections. If property stolen or embezzled be not claimed by the owner, before the expiration of six months from the conviction of a person for stealing or embezzling it, the magistrate or other officer having it in his custody must on payment of the necessary expenses incurred in its preservation, deliver it to the county superintendents of the poor, or in the city of New York, to the commissioners of charities and corrections, to be applied for the benefit of the poor of the county or city, as the case may be. § 690. Receipt of money or property, taken from a person arrested for a public offense. Except in the city of New York, when money or other property is taken from a defendant, arrested upon a charge of a crime, the officer taking it must, at the time give duplicate receipts therefor, specifying particularly the amount of money or the kind of property taken; one of which receipts he must deliver to thfe defendant, and the other of which he must forthwith file with the clerk of the court to which the depositions and statement must be sent, as provided in section 221. § 691. Duties of police clerks in the city of Neir York, etc. The commissioners of police of the city of New York may designate some person to take charge of all property alleged to be stolen or embezzled, and which may be brought into the police office, and all property taken, from the person of a prisoner, and may prescribe regulations in regard to the duties of the clerk, or clerks so desig- nated, and to require and take security for the faithful performance of the duties imposed by this section, and it shall be the duty of every officer into whose possession such property may come, to deliver the same forthwith to the person so designated. PART V. Of Proceedings in Coubts of Speciai, Sessions and Police Coubts. TITLE I. — Of the Proceedings in Court of Special Sessions in the Counties other than New York. TITLE II. — Of the Proceedings in the Courts of Special Sessions in. the City and County of New York. TITLE III. — Of Appeals from the Courts of Special Sessions. TITLE I. OP PB0CEEDIN6S IN COUBTS OP SPECIAL SESSIONS IN THE COUNTIES OTHEB THAN NEW TOEK. Section 699. Charge to he read to defendant, and he required to plead. 700. The plea, and how put in. 701. Issue, how tried. 702. Defendant may demand a trial by jury. 703. Jury, how summoned. 704. Summoning the jury, and returning the list. 705. Depositing ballots in box. 706. Drawing the jury. 707. Challenges. 708. Talesmen, when and how ordered and summoned. 709. Punishing officer for not returning list, and issuing new order for jury. 710. Jury, how constituted. 711. Their oath. 712. Trial, how conducted. 713. Jury may decide in court, or retire; oath of officer on their retirement. 714. Delivering verdict, and entry thereof. 715. Discharge of the jury without verdict. 716. In such case, cause to be re-tried. 717. Judgment on conviction. 718. Judgment of imprisonment, until fine be paid; extent of imprisonment. 719. Defendant, on acquittal, to be discharged; order that prosecutor pay the costs. 720. Judgment against prosecutor for costs. 721. 722. Certificate of conviction; its form. 723. Certificate, yvhen filed. 724. Certificate, inclusive evidence. 725. Judgment, by whom executed. 736. Fine, by whom received before commitment, and how applied. 726. Fine, to whom paid after commitment, and how applied. 728. Proceedings against magistrate or sheriff, on neglect to pay fine to super- visor. 729. Subpoenas for witnesses, and punishing them for disobedience. 730. Punishing jurors for non-attendance. 731. No fees to jurors or witnesses. 732. When defendant requests a trial by police court, preliminary examination dispensed with. 631 632 CODE OF CKIMIISTAL PEOCEDUKE. 733. During time allowed for bail, and until judgment, defendant to be con- tinued in custody of officer, or committed to jail. 734. Form of commitment. 735. By whom executed. 736. Defendant may be admitted to bail. 737. Bail, how and by whom taken. 738i Form of the undertaking. 739. Undertaking, when forfeited, and action thereon. 740. Forfeiture, how and by whom remitted. 740a. Fees of justices of the peace in criminal cases. 740b. Fees of constables in criminal cases. § 699. Charge to he read to defendant, and he required to plead. In the cases in which the courts of special sessions or police courts have jurisdiction, when the defendant is brought before the magistrate, the charge against him must be distinctly read to him, and he must be required to plead thereto. § 700. The plea, and how put in. The defendant may plead the same pleas as upon an indictment, as provided in sec- tion 332. His plea must be oral, and entered upon the minutes of the court. § 701. Issue, hoiv tried. Upon a plea other than a plea of guilty, if the defendant do not demand a trial by jury, the court must proceed to try the issue. § 702. Defendant may demand a trial by jury. Before the court hears any testimony upon the trial, the defendant may demand a trial by jury. § 703. [Am'd, 1893.] Jury, how summoned. If a trial by jury be demanded, the court must forthwith draw from the box or other receptacle kept and used in accordance with the requirements of the code of civil procedure, relative to the drawing of jurors in justice courts in civil cases, twelve of the ballots provided for in section twenty-nine hundred and ninety and twenty-nine hundred and nine-one of the code of civil procedure to be kept and used by justices of the peace in civil cases. If a person whose name is thus drawn, shall, in the opinion of the court, reside more than three miles from the place where the said issue is to be tried, the court may set aside such juror, and in that case draw another ballot and so can continue until twelve be drawn to serve as jurors. The court must thereupon insert the names of the persons so drawn in an order directed to any constable of the county, or marshial or police officer of the city or village where the offense is to be tried and having authority to execute process of the court, commanding him to summon the person therein named to appear before the said court at a time not more than three days from the time of the making of said order, unless the trial of said issue be longer adjourned by consent and at a place named therein, to constitute a jury for the trial of the alleged offense. It shall be the duty of every town or city clerk in this state, within ten days after the taking effect of this act, to make and deliver to every recorder, police justice or other judicial officer having authority to hold courts of special sessions in their respective towns or cities in accordance with the provisions of this title, a certified copy of the jury list as is now required by section twenty-nine hundred and ninety of the code of civil procedure to be furnished by them to the justices of the peace in their various towns and cities for the drawing of jurors in civil actions, and any such clerk neglecting or refusing so to do shall be deemed guilty of a PEOCEEDINGS IN COUKTS OF SPECIAL SESSIONS. 633 misdemeanor. The boxes or other receptacles now used by justices of the peace for tlie purpose of drawing jurors in civil cases shall be used by them for drawing jurors to serve in courts of special sessions as herein provided, and recorders, police justices and other judicial officers empowered to hold such courts of special sessions, as pro- vided by this title, are hereby required to procure and use the same in the manner provided by this section. § 704. [Ain'd, 1893.] Summoning jury, and returning order. Tlie dourt must deliver, or cause to be delivered, the said order to any officer to whom the same is directed and empowered to execute the same. The officer to whom said order is so delivered must thereupon summon personally each of the persons drawn and named therein to serve as such jurors by exhibiting to them the said order and at the same time reading to or stating to them the substance thereof. He shall then make his return to said order, certifying that he personally served it upon each of the persons named therein and in each case of his being unable to do so the reason thereof. Any person so summoned not attending at the time and place and not having sufficient legal excuse for doing so, specified in said order, is hereby declared guilty of contempt of court and is punishable by a fine not exceeding fifty dollars or imprison- ment not more than thirty days, or by both such fine and imprisonment. § 705. Depositing ballots in box. The names of the persons returned as jurors must be written on separate ballots, folded as nearly alike as possible, so that the name cannot be seen, and must, under the direction of the court, be deposited in a box, or other convenient thing. § 706. Drawing the jury. The court must then draw out six of the ballots, successively; and if any of the per- sons whose, names are drawn do not appear, or are challenged and set aside, such further number must be drawn as will make a jury of six, after all legal challenges have been allowed. § 707. Challenges. The same challenges may be taken by either party, to the panel of jurors, or to an individual juror ; as on the trial of an indictment for a misdemeanor, so far as appli- cable; and the challenge must, in all cases, be tried by the court. § 708. Talesman, when and how ordered and summoned. If six of the jurors summoned do not attend, or be not obtained, the court may direct the officer to summon any of the bystanders, or others, who may be competent, and against whom there is no sufficient cause of challenge, to act as jurors. § 709. Punishing officer for not returning list, and issuing ne-w order for jury. If the officer to whom the order is delivered do not return it, as required by section 704, he may be punished by the court, as for contempt; and the court must issue a new order for the summoning of jurors, in substantially the same form; upon which the same proceedings must be had as upon the one first issued. § 710. Jury, how constituted. When six jurors appear and are accepted, they constitute the jury. § 711. Their oath. The court must thereupon administer to the jury the following oath or affirmation: " You do ' swear ' [or ' you do solemnly aifirm,' " as the case may be] " that you will 634 CODE OF CEIMHSTAL PROCEDUEE. well and truly try this issue, between the people of the state of New York and A. B., the defendant, and a true verdict give, according to the evidence." § 712. Trial, hoir condncted. After the jury are sworn, they must sit together and hear the proofs and allega- tions of the parties, which must be deliveerd in public, and in the presence of the defendant. § 713. Jury may decide is court, or retire; oath of oficer oa tkeir retirement. After hearing the proofs and allegations, the jury may either decide in court or may retire for consideration. If they do not immediately agree, an officer must be sworn to the following: "You do swear, that you will keep this jury together in some private and convenient place, without food or drink, except bread and water, unless otherwise ordered by the court; that you will not permit any person to speak to or communicate with them, nor do so yourself, unless it be to ask them whether they have agreed upon a verdict; and that you will return them into the court when they have so agreed, or when ordered by the court." g 714. Delivering verdict, and entry thereof. When the jury have agreed on their verdict, they must deliver it publicly to the court, which must enter it in its minutes. § 715. Discharge of jnry withont verdict. The jury cannot be discharged after the cause is submitted to them, until they have agreed upon and rendered their verdict, unless, for some cause within the meaning of sections 428 and 429, the court sooner discharge them. § 716. In snch case, canse to be tried. If the jury be discharged, as provided in the last section, the court may proceed again to the trial, in the same manner as upon the first trial ; and so on, until a verdict is rendeerd. § 717. Judgment on conviction. When the defendant pleads guilty, or is convicted either by the court or by a jury, the court must render judgment thereon, of fine or imprisonment, or both, as the case may require; but the fine cannot exceed fifty dollars, nor the imprisonment six months. § 718. [Am'd, 1910.] Jndgment of imprisonment, until fine be paid'; extent of imprisonment; probation; restitution. A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied; specifying the extent of the imprisonment, which cannot exceed one day for every one dollar of the fine. The court may require a, defendant to pay a fine or restitution, or to make reparation, as provided in subdivision two of section four hundred and eighty-three. § 719. Defendant, on acquittal, to be discharged; order that prosecutor pay the costs. When the defendant is acquitted, either by the court or by the jury, he must be immediately discharged; and if the court certify, upon its minutes, or the jury find that the prosecution was malicious or without probable cause the court must order the prosecutor to pay the costs of the proceedings, or to give satisfactory security PEOCEEDINGS IN" OOUETS OF SPECIAL SESSIONS. 635 by written undertaking, with one or more sureties, to pay the same to the county within thirty days after the trial. § 720. [Am'd, 1890.] Jndgmemt against prosecutor for costs. If the prosecutor do not pay the costs or give security therefor, the eourt may enter judgment against him for the amount thereof, which may be enforced and appealed from, in all respects, in the same manner as a judgment rendered by a justice court held by a justice of the peace. § 721. Certificate of conTiction; its form. When a conviction is had upon a plea of guilty, or upon a trial, the eourt must make and sign a certificate in substantially the following form : " Court of special sessions or police court. " County of Albany, town of Berne [or as the case may be]. The People of the State of New York against A. B, January 1, 19. .. " The above named A. B., having been brought before C. D., justice of special sessions, justice of the peace [or other magistrate as the case may be] or police justice of the town [or city or village] of [as the case may be] charged with [briefly designating the offense.] " And, having thereupon pleaded guilty or not guilty [or as the case may be] and demanded [or, ' failed to demand ' as the ease may be] , a jury, and having been there- upon duly tried, and upon such trial duly convicted. It is adjudged that he be im- prisoned in the jail of this county days [or ' pay a fine of dollars and be imprisoned until it be paid, not exceeding days,' or both as the case may be.] " Dated at the town [or ' city '] of , the day of , 19 . . . C. D., justice of the peace or police justice or other magistrate [as the case may be] of the town [or ' city '] of [as the case may be]." § 722. Same. If the defendant have pleaded guilty — instead of the second paragraph, the certifi- cate must state substantially as follows: "And the above named A. B. having been thereupon duly convicted, upon a plea of guilty." § 723. Certificate, when filed. Within twenty days after the conviction, the court must cause the certificate to be filed in the oflSce of the clerk of the county. § 724. Certificate, conclusive evidence. The certificate, made and filed as prescribed in the last two sections, or a certified copy thereof, is conclusive evidence of the facts stated therein. § 725. Judgment, by whom executed. The judgment must be executed by the sheriff of the county, or by a constable, marshal or policeman of the city, village or town in which the conviction is had, upon receiving a copy of the certificate prescribed in section 721, certified by the court or the county clerk. 636 CODE OF CEIMINAL PEOCEDUEE. § 726. [Am'd, 1895.] Fine, by -whom received before commitment, and hoiv applied. If a fine imposed be paid before commitment it must be received by the court, and within thirty days after its receipt, paid by such court to the supervisors of the town in and for which such court is held. § 727. [Am'd, 1895.] Fine, to whom paid after commitment, and bow applied. If the defendant be committed for not paying a fine, he may pay to the sheriff of the county, but to no other person, who must in like manner within thirty days after the receipt thereof, pay the same to the supervisor of the town in and for which such court is held. § T28. [Am'd, 1895.] Proceedings against magistrate or sheriff on neglect to pay fine to supervisor. If the court or sheriff receiveing the fine fail to pay to the supervisor, as provided in the last two sections, such supervisor must immediately commence an action therefor against the sheriff, or the magistrate or magistrates composing the court in the name of his town. § 729. Snbpoena for iritnesses, and punishing them for disobedience. The court may issue subpoenas for witnesses, as provided in section 608, and punish disobedience thereof, as provided in section 619. § 730. Punishing jurors for non-attendance. If a person summoned as a juror fail to appear, he may be punished by a fine not exceeding five dollars imposed by the court, by an order entered in his minutes. The order is deemed a judgment, in all respects, in favor of the poor of the town or city. § 731. No fees to jurors or -witnesses. No fees are payable to a juror or witness, for his service or attendance in a court of special sessions. § 732. When defendant requests a trial by police court, preliminary ex- amination dispensed -with. When the defendant, upon being brought before the magistrate, requests a trial by a court of special sessions, the preliminary examination of the case is dispensed with. § 733. During time allowed for bail, and until judgment, defendant to be continued in custody of oificer or committed to jail. During the time allowed to the defendant to give bail, and until judgment is given, he may be continued in the custody of the officer, or committed to the jail of the county to answer the charge, as the magistrate may direct. § 734. Form of commitment. The commitment must be signed by the magistrate, by his name of oflSce, and must be in substantially the following forfti: " The sheriff of the county of , is required to receive and detain A. B., who stands charged before me for [designating the offense, generally], to answer the charge before a court of special sessions in the town [or city] of [as the case may be]. " Dated at the town [or city] of , the day of 19 . . . " C. D., justice of the peace of the town [or city] of " [as the case may be]. PEOOEEDINGS 11^ COUKTS OF SPECIAL SESSION'S. 637 § 735. By -whom executed. When committed, the defendant must be delivered to the custody of the proper officer, by any peace officer in the county to whom the magistrate may deliver the commitment. § 736. Defendant may be admitted to bail. Either before or after his committal, or upon being committed, the defendant must, if he require, be admitted to bail. § 737. Bail, bow and by trbom taken. The bail must be taken by the magistrate, by a written undertaking, executed by the defendant, with one or more sufficient sureties approved by the magistrate, in a sum not exceeding $200. § 738. Form of the undertaking. The undertaking must be in substantially the following form: "A. B., having been duly charged before C. D., a justice of the peace in the town [or city] of [as the case may be], with the offense of [designating the offense generally], we undertake jointly and severally that he shall appear thereon from time to time, until judgment, at a court of special sessions in the town or village [or city] of [as the case may be], competent to try the ease, or that he will pay to the county of [naming the county in which the court is held], the sum of dollars [inserting the sum fixed by the magistrate]. " Dated at the town [or city] of , [as the case may be] ." § 739. TTudertaking, irlien forfeited, and action thereon. If the defendant fail to appear according to the undertaking, the court, unless a sufficient excuse be shown, must declare the undertaking of bail forfeited, and the county treasurer must immediately commence an action for the recovery of the sum mentioned therein, in the name of the county. § 740. Forfeiture, hoiv and by whom remitted. The county court of the county, or in the city of New York, the supreme court, may remit the forfeiture or any part thereof, in the cases and in the manner provided in the code of civil procedure. § 740-a. [Am'd, 1909, 1918.] Fees of justices of the peace in criminal cases. Justices of the peace in the state shall hereafter be allowed and entitled to receive the fees hereinafter stated for the following named services in criminal cases: For administering an oath, ten cents; drawing an information, fifty cents; taking a deposi- tion of witness on an information before warrant is issued or examination thereafter, twenty-five cents; examination of information and depositions and issuing a warrant of arrest, fifty cents; indorsing warrant from another county, twenty-five cents; for each day's necessary attendance when defendant is in court after arrest, one dollar and fifty cents; every necessary adjournment, twenty-five cents; a subpoena, including all the names inserted therein, twenty-five cents, and each copy subpoena for service, ten cents; for filing each paper required by law, five cents; for furnishing copies of papers in any proceeding, at the rate of ten cents per folio of one hundred words; fqr each application, order in writing, certificate or report, or other paper to be filed or copies thereof, required by law, twenty-five cents; drawing an undertaking of bail, fifty cents; taking an acknowledgment, twenty-five cents; return and filing papers in county clerk's office when defendant is held to answer, one dollar. For a venire, twenty-flve cents ; swearing each witness on the trial, ten cents ; swear- 638 CODE OF CKIMINAL PKOCEDUEE. ing a jury, twenty-flve cents; swearing a constable to attend a jury, twenty-five cents; for a trial fee, one dollar and fifty cents per day for each day defendant is in court; receiving and entering verdict of jury, twenty-five cents; entering the sentence or adjudication of the court, twenty-five cents; temporary commitment, twenty-five cents; warrant of commitment on sentence, twenty-five cents; for record of conviction and filing the same, one dollar; but all such charges in any one case shall not exceed five dollars, unless such court continue more than one day; in such case the costs of such additional day may be added thereto; for return to any appeal, to be paid by the county, two dollars; for services when associated with another justice of the peace or police justice or in cases of bastardy, for each day defendant is in court, two dollars; for application and license to carry concealed weapons, to be paid by the person applying for and receiving same, one dollar and fifty eonts. § 740-1). [Added, 1909.] Fees of constables in criminal cases. Constables shall hereafter be allowed the fees hereinafter stated for the following services in criminal cases: For serving a warrant, seventy-five cents; for every mile traveled, going and returning, ten cents; for taking a defendant into custody on a commitment, twenty-five cents; for every mile traveled in taking a prisoner to jail, going and returning, ten cents; for serving every subpoena, twenty-five cents; for every mile traveled in serving each subpoena, going and returning, five cents; for notifying a complainant, twenty-five cents; for every mile traveled in notifying a complainant, five cents, going and returning; for keeping a prisoner after being brought before the jus- tice, and by his direction in custody, one dollar per day; for taking charge of a jury during their deliberations, fifty cents; for attending any court pursuant to a notice from the sheriff for that purpose, two dollars for each day, and five cents a mile for each mile traveled, in going to and returning from such court; which fees shall be chargeable to the county, and shall be paid by the treasurer thereof on the production of the certificate of the clerk, specifying the number of days and distance traveled. TITLE II. OF THE PBOCEEnlNGS IN THE COTTBTS OF SPECIAL SESSIONS IN THE CITY OF NEW YORK. [Am'd L. 1904, eh. 563.] Section 741. Courts of special sessions in the city of New York to proceed as prescribed in last title, except as otherwise specially provided. 742. Trial by and form of information. 743. Duty of district attorney in relation to the information and dismissal of prosecution. 744. Clerk to issue subpoena, sign certificate of judgment, and enter proceed- ings of court and sentences upon convictions. 745. Fines before committal, to be paid to clerk; his accounts, when and to whom rendered. 746. No transcript of conviction to be filed; certified copy of minutes, con- clusive evidence. § 741. [Am'd, 1904.] Conrts of special sessions in the city of New York, to proceed as prescribed in last title, except as otherwise specially provided. The courts of special sessions, in the city of New York, must proceed upon a criminal charge in the manner prescribed in the last title, except as provided in the next five sections, and as otherwise specially provided. PKOCEEDINGS IN COUKTS OF SPECIAL SESSIONS. 639 § 742. [Am'd, 1904.] Trial by and form of information. All criminal actions in the courts of special sessions in the city of New York, except in the part devoted to the trial of children under sixteen years of age and known as children's courts, must be prosecuted by information made by the district attorney. The information shall be signed by the district attorney of the county wherein the. action was begun and may be substantially in the following form: Court of Special Sessions of the City of New York, Division. The People of the State of New York A. B. Be it remembered that I the District Attorney of the County of , by this information accuse A. B. of the crime (here insert the name of the crime if it have one, such as petit larceny, assault in the third degree, or the like, or if it have no genreal name insert a brief description of it as it is given by the statute ) committed as follows: The said A. B., on the day of , 19 . . , at the City of New York, in the County of ( here set forth the act charged as an offense. ) C. D., District Attorney of the County of § 743. [Am'd, 1904.] Dnty of district attorney in relation to the informa- tion and dismissal of prosecution. The district attorney of a county within the city of New York, on the receipt by him of the papers in a criminal action, returned to him by a magistrate as provided by section two hundred and twenty-one hereof, shall either make and file with the clerk of the court of special sessions an information against the defendant in such action, as provided in the last preceding section, or, move in said court for the dismissal of the prosecution of the action. This duty, unless the time prescribed therefor be ex- tended by the court, shall be performed in manner following: 1. Where a defendant is in custody the information shall be filed not later than the day following the receipt by the district attorney of the magistrate's return, and in all other cases within ten days thereafter. 2. In all actions where return has been made to the district attorney as required by section two hundred and twenty-one of this code, and he has failed to make and file an information as provided in subdivision one of this section, he shall, within thirty days after such return, move for the dismissal of the prosecution of such action, filing with the clerk of the court a statement in writing of his reasons for making such motion. 3. The district attorney shall file with the clerk of the court all papers returned to him under the provisions of section two hundred and twenty-one of this code, those upon which informations are based and with the informations and all others when he moves to dismiss the prosecution of the action in which they were taken. § 744. [Am'd, 1904.] Clerk to issue subpoenas, sign certificate of judg- ment, and enter proceedings of court and sentences upon convictions. Subpoenas for witnesses, and the certificate of the judgment, must be signed by the clerk of the court, who must also enter all the proceedings of the court, and the sen- tences upon convictions, in a book of minutes, and when necessary, certify the proceed- ings of the court. 640 CODE OF CKIMINAL PKOCEDUEE. § 745. [Am'd, 1904.] Fines Tjefore committal, to be paid to clerk; bis accounts, irhen and to irhom rendered. Fines, imposed by the court, must be received by the clerk, if paid before committal in execution of judgment. He must, every thirty days, render to the comptroller of the city, accounts of the fines imposed and received by him, and of the expenses attending the court. § 746. [Am'd, 1904.] No transcript of conviction to be filed; certified copy of minutes, conclusive evidence. No transcript of a conviction, had in a court of special sessions in the city of New- York, need be certified or filed; but a copy of the minutes of the conviction, certified by the clerk, is conclusive evidence of the facts contained therein. TITLE III. OP APPEALS FEOM COURTS OF SPECIAL SESSIONS. Section 749. Judgment of special sessions, reviewable only upon appeal. 750. Appeal, for what causes allowed ; what deemed a final judgment. 751. Appeal, how taken. 752. How allowed. 753. Discharge of defendant from custody, upon undertaking. 754. Undertaking, when and with whom filed. 755. Delivery of affidavit, and allowance of appeal, to magistrate or clerk of police court, within five days after allowance. 756. Return, when and how made. 757. Compelling return. 758. Ordering and compelling further or amended return. 759. Appeal, by whom and how brought to argument. 760. If not brought to argument, as provided in last section, to be dismissed, unless continued for cause shown. 761. Service of return on district attorney, and consequences of failure. 762. If brought to hearing by defendant, appeal must be argued, though no one opposes, etc. 763. Appeal to be heard on original return. 764. What judgment may be rendered. 765. Judgment to be entered on the minutes. 766. Order upon judgment for affirmance. 767. Order upon judgment of reversal. 769. If new trial ordered, to be had in court of sessions; proceedings thereon. 769. Proceedings to carry judgment upon appeal into effect, to be had in county court. 770. On judgment of county court, defendant may appeal to supreme court; his admission to bail. 771. Judgment of supreme court upon appeal, final. 772. Proceedings to carry into effect judgment of supreme court. § 749. [Am'd, 1909.] Review on appeal from minor courts. A judgment upon conviction, rendered by a court of special sessions, police court, police magistrate, or justice of the peace, in any criminal action or proceedings or special proceeding of a criminal nature, including a judgment of commitment made under section four hundred and eighty-six of the penal law, may be reviewed by the PKOCEEDINGS IE" COUETS OF SPECIAL SESSIONS. 641 county court of the county, upon an appeal as prescribed by this title, and not other- wise; and any appeals lieretofore taken and allowed from a judgment of any police court or police magistrate in the manner that appeals are directed to be taken and allowed by this title, and now pending undetermined in any court of this state, are hereby declared to be legal and valid and of the same force and effect as if taken after the passage of this act. An appeal from a judgment of commitment made under section four hundred and eighty-six of the penal law may be allowed to any person having, previous to such commitment, a right to the custody of the child; but upon such appeal, in addition to the notice and papers required by this title to be served on rppeals in criminal actions, notice of all proceedings and copies of the affidavit and allowance of appeal therein must be served upon the institution named in the commit- ment, and upon the society mentioned in section four hundred and ninety of the penal law, if there be one within the county. Such institution and society, or either, shall have the right to move, to argue, or dismiss and to be heard upon the argument of such appeal; and shall have the like right to appeal from the judgment of the county court of the county to the supreme court as is conferred by section seven hundred and seventy of this code upon a defendant, and to the court of appeals by section five hundred and nineteen of this code; and pending any appeal and until the final determination thereof the child named in the commitment must remain in the custody of the institution therein specified. § 750. [Am'd, 1907.] Appeal, for trhat causes allotred; what deemed a final judgment. An appeal may be allowed for an erroneous decision or determination of law or fact upon the trial and for the purposes of an appeal in all cases now pending or hereafter brought, a conviction for a criminal offense shall be deemed a final judgment although sentence shall have been suspended by the court in which the trial was had or otherwise suspended or stayed. § 751. [Am'd, 1897.] Appeal, bow taken. For the purpose of appealing, the defendant, or some one on his behalf, must within sixty days after the judgment, or within sixty days after the commitment where the appeal is from the latter, make an affidavit showing the alleged errors in the proceed- ings or conviction or commitment complained of, and must within that time present it io the county judge or justice of the supreme court, or in the city and county of New York, to the recorder or a judge authorized to hold a court of general sessions in that city or in the city of Albany, to the recorder, and apply therein for the allowance of the appeal. § 752. [Am'd, 1897.] How allowed. If, in the opinion of the judge, it is proper that the question arising on the appeal should be decided by the county court, he must indorse on the affidavit an allowance of the appeal to that court; and the defendant, or his attorney, must within five days thereafter, serve a copy of the affidavit upon which the appeal is granted, together with a notice that the same has been allowed, upon the district attorney of the county in which the appeal is to be heard. § 753. [Am'd, 1892.] Discharge of defendant from custody, upon under- taking. Upon allowing the appeal if satisfied that there is a reasonable doubt whether the conviction should stand, but not otherwise, the judge may take from the defendant a written undertaking with such sureties as he may approve, that the defendant will abide the judgment of the county court upon the appeal, and may thereupon order that 41 642 CODE OF CKIMINAL PKOCEDURE. he be discharged from imprisonment on service of the order upon the officer having him in custody, or if he be not in custody that all proceedings on the judgment be stayed. § 754. [Am'd, 1897.] Undertaking, when and with whom filed. The undertaking upon the appeal must be immediately filed with the clerk of the county court, and the said clerk of the county court shall within five days thereafter, give notice to the district attorney of the county that such bond has been filed, which notice shall give the name of the defendant and his sureties, the offense for which the defendant was charged and the amount of the bail given. § 755. [Am'd, 1890.] Delivery of affidavit. The affidavit and allowance of the appeal must be delivered to the magistrate, or clerk of the court rendering the judgment, within five days after the allowance of the appeal, and when so delivered the appeal is deemed taken. § 756. Return, when and how made. The magistrate or court rendering the judgment, must make a return to all the matters stated in the afiidavit, and must cause the affidavit and return to be filed in the office of the county clerk within ten days after the service of the affidavit and allowance of the appeal. § 757. Compelling return. If the return be not made within the time prescribed in the last section, the county court, or the judge thereof, may order that a return be made within a specified tim'e which may be deemed reasonable; and the court may by attachment, compel a compli- ance with the order. § 758. Ordering and compelling further or amended return. If the return be defective, a further or amended return may be ordered, and the order may be enforced in the manner provided in the last section. § 759. [Am'd, 1899.] Appeal, hy whom and how brought to argument. The appeal must be brought to argument by the defendant at the next term, upon a notice of not less than ten days before said term to the district attorney of the county. § 760. If not brought to argument, as provided in last section, to he dis- missed, unless continued for cause shown. If the defendant omit to bring the appeal to argument, as provided in the last section, the court must dismiss it, unless it continue the same, by special order, for cause shown. § 761. Service of return on district attorney and consequences of failure. The defendant must serve upon the district attorney, a copy of the return, with or before the notice of argument. If he fail to do so, the appeal must be dismissed, upon proof of the failure, unless the court otherwise direct. § 762. If brought to hearing by defendant, appeal must be argued, though no one oppose, etc. If the appeal be brought to hearing by the defendant, it must be argued, though no one appear to oppose; but if brought on by the district attorney, he may take judgment of affirmance, unless the defendant appear to argue the appeal. PKOCEEDINGS IN COUETS OF SPECIAL SESSIONS. 643 § 763. Appeal to be heard on original return. The appeal must be heard upon the original return; and no copy thereof need be 'furnished for the use of the court. § 764. What judgment may be rendered. After hearing the appeal the court must give judgment without regard to technical errors or defects which have not prejudiced the substantial rights of the defendants, and may render the judgment which the court below should have rendered, or may, according to the justice of the case affirm or reverse the judgment, in whole or in part, as to all or any of the defendants, if there be more than one, or may order a, new trial, or may modify the sentence. § 765. [Am'd, 1917.] Judgment to be entered on the minutes. When judgment is given upon the appeal, it must be entered upon the minutes, and in case of a reversal it shall state whether the reversal was for errors of law only or was for errors of fact, or was for errors both of law and fact and if the reversal was for errors of law only whether the facts were examined and errors found therein. § 766. Order upon judgment for affirmance. If the judgment be affirmed, the court must direct its execution, and if the defendant have been discharged on bail after the commencement of the execution of a judgment of imprisonment, must commit him to the proper custody for the remainder of his term of imprisonment. § 767. Order upon judgment of reversal. If the judgment be reversed, and the defendant be imprisoned in pursuance of the judgment of the police court, the county court must order him to be discharged. § 768. [Am'd, 1909.] If new trial ordered; to be had in county court. If a new trial be ordered, it must be had in the county court in the same manner as upon an issue of fact on an indictment; and that court may proceed to judgment and execution, as in an action prosecuted by indictment. But where the appeal was from a judgment of commitment made under section four hundred and eighty-six of the penal law, the new trial shall be had before the county court without a jury. § 769. [Am'd, 1895.] Proceedings to carry judgment upon appeal into effect, to be had in county court. If any proceeding be necessary to carry the judgment upon the appeal into effect, they must be had in the county court. § 770. [Am'd, 1895, 1917.] On judgment of county court defendant may appeal to appellate division. If the judgment on the appeal be against the defendant, he may appeal therefrom to the appellate division of the supreme court, in the same manner as from a judgment in an action prosecuted by indictment, and may be admitted to bail upon the appeal, in like manner. If the judgment on the appeal be against the people and it appears by the judgment that the reversal was for errors of law only, the people may appeal therefrom to the appellate division of the supreme court, provided a justice of the supreme court in the department wherein the judgment upon the appeal from the magistrate's decision was rendered, grant an order permitting such appeal by the people to the appellate division. (Am'd by L. 1896, ch. 880, and L. 1917, ch. 673, in effect Sept. 1, 1917.) 644: CODE OF CRIMINAL PEOCEDUEE. § 770-a. [Added, 1917.] Appeal to the appellate division by the people; hov taken. For the purpose of appealing to the appellate division, the district attorney of the county wherein the judgment of the county court has been rendered must within sixty days after the entry upon the minutes of the reversal of the magistrate's decision by the county court, as provided by section seven hundred and sixty-five of the code of criminal procedure, apply to a justice of the supreme court in the department wherein the judgment was rendered, upon a written application, for leave to appeal to the Appellate division from siich reversal. § 770-b. [Added, 1917.] Appeal; how allowed. If, in the opinion of the judge to whom the application is made, it is proper that the question arising out of the reversal of the decision of the magistrate by the county court, should be reviewed by the appellate division, he must grant an order permitting such appeal by the people to the appellate division. The district attorney must within twenty days thereafter serve upon the defendant or his attorney a copy of the order granting such allowance of appeal. § 771. [Am'd, 1895.] Judgment of snpreme court upon appeal, final. The judgment of the appellate division of the supreme court upon the appeal is final; except that where the original appeal was from a judgment of commitment of a child, either party may appeal to the court of appeals in like manner as a, defendant under section 519 of this Code. § 772. [Am'd, 1895.] Proceedings to carry into effect judgment of supreme court. The same proceedings must be had, to carry into effect the judgment of the appellate division of the supreme court upon the appeal, as if it had been taken upon a judgment in an action prosecuted by indictment. PART VI. Op Special Pboceedings of a Criminal Natubb. TITLE I. Of coroners' inquests, and the duties of coroners. TITLE II. Of search warrants. TITLE III. Of the outlawry of persons convicted of treason. TITLE IV. Of proceedings against fugitives from justice. TITLE V. Of proceedings respecting bastards. TITLE VI. Of proceedings respecting vagrants. TITLE VII. Of proceedings respecting disorderly persons. TITLE VIII. Of proceedings respecting support of poor persons. TITLE IX. Of proceedings respecting masters, apprentices and servants TITLE X. Of criminal statistics. TITLE XI. Miscellaneous provisions respecting proceedings of a criminal nature. TITLE XII. Violations of the provisions of the penal law relating to the manufacture or sale of spurious silverware or goldware. TITLE XIII. Investigation by sheriffs and coroners of the origin of fire. TITLE XIV. Grand jury stenographers. TITLE I. OF CORONEBS' INQUESTS, AND THE DCTIES OF CORONESS. Section 773. In what cases coroners to summon a jury; number of jurors to be summoned. 774. Fees of jurors summoned on coroner's jury. 775. Witnesses to be subpoenaed. 776. Compelling attendance of witnesses, and punishing their disobedience. 777. Verdict of the jury. 778. Testimony, how taken and filed. 779. If defendant arrested before inquisition filed, depositions to be delivered to magistrate, and by him returned. 780. Warrant for arrest of party charged by verdict. 781. Form of warrant. 782. Warrant, how executed. 783. Proceedings of magistrate, on defendants being brought before him. 784. Clerk with whom inquisition is filed, to furnish magistrate with copy of the same and of testimony returned therewith. 785. Coroner to deliver money or property found, on deceased, to county treasurer. 786. County treasurer to place money to credit of county; and to sell other property and place proceeds to credit of county. 787. Money, when and how paid to representatives of deceased. 788. Supervisors to require statement under oath, from coroner, before audit- ing his accounts. 789. In New York, city magistrate may perform duties of coroner, during his inability. 789a. Justices of the peace to act as coroners in certain cases. 790. Compensation of coroners. 645 646 CODE OF CKIMINAL PEOCEDUKE. § 773. [Am'd, 1899, 1908.] Coroner's jury and examination. Whenever a coroner is informed that a person has been killed or dangerously wounded by another, or has suddenly died under such circumstances as to afford a reasonable ground to suspect that his death has been occasioned by the act of another by criminal means, or has committed suicide, he must go to the place where the person is and forthwith inquire into the cause of the death, or wounding, and in case such death, or wounding, occurred in a county in which is situated in whole, or in part, a city having a population of more than five hundred thousand as appears by the last state enumera- tion, but not otherwise, summon not less than nine, nor more than fifteen persons, quali- fied by law to serve as jurors, to appear before him forthwith, at a specified place, to inquire into the cause of the death or wound, and if it shall appear from the sworn examination of the informant, or complainant, or if it shall appear from the evidence taken on, or during the inquisition, or hearing, that any person, or persons, are charge- able with the killing or wounding, or that there is probable cause to believe that any per- son or persons are chargeable therewith, and if such person or persons be not in custody, he must forthwith issue a warrant for the arrest of the person or persons charged with such killing or wounding; and upon the arrest of any person, or persons, chargeable therewith, he must be arraigned before the coroner for examination, and the said coroner shall have power to commit the person or persons so arrested to await the result of the inquisition or decision. Any coroner shall be disqualified from acting as such in any case where the person killed, or dangerously wounded, or dying suddenly, as aforesaid, is a co-employee with said coroner of any person, or persons, association, or corporation, or where it appears that the killing or wounding has been occasioned, directly or indirectly, by the employer of said coroner. § 774. [Added, 1909.] Fees of jurors summoned on coroner's jury. The fees of jurors necessarily summoned upon any coroner's inquest shall be not to exceed one dollar for each day's service, shall be a county charge and shall be audited and allowed by the boards of supervisors in the same manner as other fees and charges mentioned in this title. But the coroner holding such inquest and summoning said jurors shall make report to the next succeeding board of supervisors after every such inquest of the names of such jurors and the term of service of each, and upon what inquest rendered, on or before the third day of the annual session in each year. § 775. Witness to be subpoenaed. The coroner may issue subpoenas for witnesses, returnable forthwith, or at such time and place as he may appoint. He must summon and examine as witnesses every person who, in his opinion, or that of any of the jury, has any knowledge of the facts; and he must summon as a witness a surgeon or physician, who must, in the presence of the jury, inspect the body, and give a professional opinion as to the cause of the death or wounding. § 776. Compelling attendance of witnesses, and punishing their disobedi- ence. A witness served with a subpoena may be compelled to attend and testify, or punished by the coroner for disobedience, as upon a subpoena issued by a magistrate, as provided in this code. § 777. [Am'd, 1899.] Verdict of the jury. After inspecting the body and hearing the testimony, the coroner must rendef his decision, or if in a county where a jury is summoned as provided in section seven hundred and seventy-three, the jury must render their verdict, and certify it by an inquisition or decision in writing, signed by him or them as the case may be, and SPECIAL PROCEEDINGS OF A CRIMIJSTAL NATURE. 647 setting forth who the person killed or wounded is, and when, where and by what means he came to his death, or was wounded; and if he were killed, or wounded, or his death were occasioned by the act of another, by criminal means, who is guilty thereof, in so far as by such inquisition he or such jury has been able to ascertain. § 778. [Am'd, 1899.] Testimony, how taken and filed. The testimony of the witnesses examined before the coroner or the jury must be re- duced to writing by the coroner, or under his direction, and must be forthwith by him, with the inquisition, or decision, filed in the office of the clerk of the county court of the county, or of a city court, having power to inquire into the offense by the interven- tion of a grand jury. § 779. If defendant arrested before inquisition filed, depositions to be delivered to magistrate, and by him returned. If, however, the defendant be arrested before the inquisition can be iiled, the coroner must deliver it with the testimony, to the magistrate before whom the defendant is brought, as provided in section 781, who must return it with the depositions and state- ments taken before him, in the manner prescribed in section 221. § 780. [Am'd, 1899.] Warrant for arrest of party charged by verdict. If the coroner or jury, where a jury is summoned finds that the person was killed or wounded by another, under circumstances not excusable, or justifiable, by law, or that his death was occasioned by the act of another, by criminal means, and the party committing the act be ascertained by the inquisition or decision, and be not in custody, the coroner must issue a warrant, signed by him with his name of office, into one or more counties, as may be necessary, for the arrest of the person charged. § 781. [Am'd, 1899.] Form of warrant. The coroner's warrant must be in substantially the following form: County of Albany (or as the case may be). In the name of the people of the state of New York, to any sheriff, constable, marshal or policeman in this county: An inquisition having been this day found by a coroner's jury before me (or a, decision having been made by me) stating that A. B. has come to his death by the act of C. D. by criminal means (or as the case may be), as found by the inquisition (or decision;) or information having been this day laid before me that A. B. has been killed or dangerously wounded by C. D. by criminal means (or as the case may be), you are hereby commanded forth- with to arrest the above named C. D. and bring him before me, or in the case of my absence or inability to act, before the nearest or most accessible coroner in this county. Dated at the city of Aubany ( or as the case may be) , this day of E. F. Coroner of the county of Albany (or as the case may be) . § 782. Warrant, how executed. The coroner's warrant may be served in any county; and the officer serving it must proceed thereon, in all respects, as upon a warrant of arrest on an information ; except, that when served in another county, it need not be indorsed by a magistrate of that county. § 783. [Am'd, 1887.] Proceedings by magistrate. The magistrate, or coroner, when the defendant is brought before him, must proceed to examine the charge contained in the inquisition or information, and hold the defen- dant to answer or discharge him therefrom, in the same manner in all respects as upon a warrant of arresl on an information. 648 CODE OP CEIMINAL PROCEDUEE. § 784, Duty of clerk to fumisli copy of inquisition. Upon the arrest of the defendant, the clerk with whom the inquisition is filed, must, without delay, furnish to the magistrate, or coroner, before whom the defendant is brought, a certified copy of the inquisition and of the testimony returned therewith. § 785. Coroner to deliver money or property found, on deceased, to county treasurer. The coroner must, within thirty days after an inquest upon a dead body, deliver to the county treasurer, any money or other property which may be found upon the body, unless claimed in the meantime by the legal representatives of the deceased. If he fail to do so, the treasurer may proceed against him for its recovery, by a civil action in the name of the county. § 786, County treasurer to place money to credit of county; and to sell other property and place proceeds to credit of county. Upon the delivery of money to the treasurer he must place it to the credit of the county. If it be other property, he must, within thirty days, sell it at public auction, upon reasonable public notice; and must, in like manner, place the proceeds to the credit of the county. § 787, Money, irhen and how paid to representatives of deceased. If the money in the treasury be demanded within six years, by the legal representa- tives of the deceased, tho treasurer must pay it to them, after deducting the fees and expenses of the coroner and of the county in relation to the matter, or it may be so paid at any time thereafter, upon the order of the board of supervisors. § 788. Supervisors to require statement under oath from coroner, before auditing his accounts. Before auditing and allowing the account of the coroner, the board of supervisors must require from him a statement in writing, of any money or other property found upon persons on whom inquests have been held by him, verified by his oath, to the eflfect that the statement is true and that the money or property mentioned in it has been delivered to the legal representatives of the deceased, or to the county treasurer. § 789. [Am'd, 1909.] In New York, city magistrates may perform duties of coroner, during his inability. In the city of New York, if the coroner be absent or be unable, for any cause, to attend, the duties imposed by this title may be performed by a city magistrate, but by no other officer, with the same authority, and subject to the same obligations and penalites as apply to the coroner. § 789-a. [Added, 1909.] Justices of the peace to act as coroners in certain cases. Any justice of the peace, in each of the several towns and cities of this state, is hereby authorized and empowered, in case the attendance of a coroner cannot be pro- cured within twelve hours after the discovery of a dead body, upon which an inquest is now by law required to be held, to hold an inquest thereon in the same manner and with the like force and effect as coroners. In all cases in which the cause of a death is not apparent, it shall be the duty of the justice to associate with himself a regularly licensed physician, to make a suitable examination for the discovery of said cause. Each justice of the peace who shall hold inquests by virtue of this section, shall repeive the same fees as are now allowed by law to coroners. SPECIAL PKOCEEDINGS OF A CEIMINAE NATUEE. 649 § 790. Compensation of coroners. The coroner is entitled, for his services, in holding inquests and performing any other duty incidental thereto, to such compensation as defined by special statutes. TITLE II. OP SEAECH WABEANTS. Section 791, Search warrant, defined. 792. Upon what grounds may be issued. 793. It cannot be issued but upon probable cause, supported by aflSdavit. 794. Before issuing warrant, magistrate must examine, on oath, the com- plainant and his witnesses. 795. Depositions, what to contain. 796. Magistrate, when to issue warrant. 797. Form of warrant. 798. By whom served. 799. Officer may break open door or window, to execute warrant. 800. May break open door or window, to liberate person acting in bis aid, or for his own liberation. 801. When warrant may be served in the night time, and direction therefor. 802. Within what time warrant must be executed and returned. 802a. Search warrant in aid of the commissioner of agriculture. 803. Officer to give receipt for property taken. 804. Property, when delivered to magistrate, how disposed of. 806. Return of warrant, and delivery to magistrate of inventory of property taken. 806. Magistrate to deliver copy of inventory to the person from whose possession property is taken, and to applicant for warrant. 807. If grounds for warrant controverted, magistrate to take testimony. 808. Testimony, how taken and authenticated. 809. Property, when to be restored to person from whom it was taken. 810. Depositions, search warrant, return and inventory, to be returned to county court or city court having jurisdiction of offense. 811. Maliciously and without probable cause procuring search warrant, a mis- demeanor. 812. Peace officer, exceeding his authority. 813. Person charged with felony supposed to have a dangerous weapon. § 791. Searcli warrant, defined. A search warrant is an order in writing, in the name of the people, signed by a magistrate, directed to a peace officer, commanding him to search for personal property, and bring it before the magistrate. § 792. Upon wliat grounds it may le issued. It may be issued upon either of the following grounds: 1, When the property was stolen or embezzled; in which case, it may be taken, on the warrant, from any house or other place in which it is concealed, or from the pos- session of the person by whom it was stolen or embezzled, or of any other person in whose possession it may be; 2. When it was used as the means of committing a felony; in which case, it may be taken, on the warrant, from any house or other place in which it is concealed, or from 650 CODE OF CEIMII^AL PEOCEDUEE. the possession of the person by whom it was used in the commission of the crime, or of any other person in whose possession it may be; 3. When it is in the possession of any person, with the intent to use it as the means of committing a public offense, or in the possession of another, to whom he may have delivered it for the purpose of concealing it, or preventing its being discovered; in which case, it may be taken, on the warrant, from such person, or from a house or other place occupied by him, or under his control, or from the possession of the person to whom he may have so delivered it. § 793. It cannot be issued but upon probable cause, supported by affidavit. A search warrant cannot be issued, but upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property, and the place to be searched. § 794. Before issuing irarrant, magistrate must examine, on oatb, the com- plainant and his ivitnesses. The magistrate must, before issuing the warrant, examine, on oath, the complainant and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them. § 795. Depositions, irhat to contain. The depositions must set forth the facts tending to establish the grounds of the application, or probable cause for believing that they exist. § 796. Magistrate, nrhen to issue vrarrant. If the magistrate be thereupon satisfied of the existence of the grounds of the appli- cation, or that there is probable cause to believe their existence, he must issue a search warrant, signed by him with his name of office, to a peace officer in his county, com- manding him forthwith to search the person or place named, for the property specified, and to bring it before the magistrate. § 797. Form of warrant. The warrant must be in substantially the following form: " County of Albany [or as the case may be]. " In the name of the people of the state of New York : "To any peace officer in the county of Albany, [or as the case may be] proof by affidavit having been this day made before me, by [naming every person whose affidavit has been taken], that [stating the particular grounds of the application, according to section 792 or if the affidavit be not ' positive that there is probable cause for believing that,' stating the ground of the application in the same manner.] " You are therefore commanded in the day time, [or ' at any time of the day or night,' as the case may be, according to section 801], to make immediate search on the person of C. D., [or ' in the building situated,' describing it, or any other place to be searched, with reasonable particularity as the case may be], for the following property: [describing it with reasonable particularity], and if you find the same, or any part thereof, to bring it forthwith before me at [stating the place]. " Dated at the city of Albany [or as the case may be] , the day of , 18.., «E. F., " Justice of the peace of the city [or town] of [or as the case may be] ." SPECIAL PKOCEEDINGS OF A CKIMINAL NATUEE. 651 § 798. By irboiu served. A search warrant may, in all cases, be served by any of the oflScers mentioned in its direction, but by no other person, except in aid of the ofiScer, on his requiring it, he being present and acting in its execution. § 799. Officer may break open door or trindo-n-, to execute irarrant. The officer may break open an outer or inner door or window of a building, or any part of the building, or any thing therein, to execute the warrant, if, aftei notice of his authority and purpose, he be refused admittance. § 800. May break open door or 'windo'cr, to liberate person acting in his aid, or for bis ovn liberation. He may break open any outer or inner door or window of a building for the purpose for liberating a person, who, having entered to aid him in the execution of the warrant, is detained therein, or when necessary for his own liberation. § 801. Wben warrant may be served in the night time, and direction therefor. The magistrate must insert a direction in the warrant, that it be served in the day time, unless the affidavits be positive that the property is on the person, or in the place to be searched; in which case, he may insert a direction that it be served at any time of the day or night. § 802. \(^ithin irhat time irarrant must be executed and returned. A search warrant must be executed and returned to the magistrate by whom it wa9 issued, if issued in the city and county of New York, within five days after its date, a.nd if in any other county, within ten days. After, the expiration of those times respectively, the warrant, unless executed, is void. § 802-a. [Added, 1909.] Search irarrant in aid of the commissioner of agriculture. A search warrant, in the name of the people, directed to a peace officer commanding him to search for dairy products, imitations thereof and substitutes therefor, to open any place of business, factory, building, store, bakery, hotel, tavern, boarding-house, restaurant, saloon, lunch counter, place of public entertainment, carriage, car, boat, package, vessel, barrel, box, tub or can, containing, or believed to contain the same, in the possession or under the control of any person who shall refuse to allow the same to be inspected or samples taken therefrom by the commissioner of agriculture, an assist- ant commissioner or any person or officer authorized by the commissioner or by the agricultural law or to which access is refused or prevented, and to allow and enable the officer mentioned in section thirty-flve of the agricultural law applying therefor to take such samples of dairy products, imitations thereof and substitutes therefor, found in the execution of the warrant, as the officer applying for the search warrant shall desig- nate when the same are found, shall be issued by any magistrate to whom application is made therefor, whenever it shall be made to appear to him that such person has refused to permit any dairy products, imitations thereof or substitutes therefor, to be inspected or samples taken therefrom, or that access thereto by any officer mentioned in section thirty-five of the agricultural law has been refused or prevented, and that such officer has reasonable grounds for believing that such person has any dairy pro- ducts, imitations thereof or substitutes therefor in his possession, or under his control, or that he is violating any of the provisions of the agricultural law relating thereto. The provisions of section seven hundred and ninety-one to section eight hundred and two, both inclusive, of the code of criminal procedure, shall apply to such warrant 652 CODE OF CEIMINAL PKOCEDUEE. as far as applicable thereto. The peace officer to whom the warrant is delivered shall make a return in writing of his proceedings thereunto to the magistrate who issued the § 803. Officer to give receipt for property taken. When the officer takes property under the warrant, he must give a receipt for the property taken, (specifying in detail), to the person from whom it was taken by him, or in whose possession it was found, or, in the absence of any person, he must leave it in the place where he found the property. § 804. Property, Tvhen delivered to magistrate, how disposed of. When the property is delivered to the magistrate, he must, if it was stolen, or em- bezzled, dispose of it as provided in section 687 to 689, both inclusive. If it were taken on a warrant issued on the grounds stated in the second and third subdivisions of section 792, he must retain it in his possession, subject to the order of the court to which he is required to return the proceedings before him, or of any other court in which the offense, in respect to which the property "taken, is triable. § 805. Return of warrant, and delivery to magistrate of inventory of property taken. The officer must forthwith return the warrant to the magistrate, and deliver to him a, written inventory of the property taken, made publicly, or in the presence of the person from whose possession it was taken and of the applicant for the warrant if they be present, verified by the affidavit of the officer, and taken before the magistrate, to the following effect: "I, A. B., the officer by whom this warrant was executed, do swear that the above inventory contains a true and detailed account of all the prop- erty taken by me on the warrant." § 806. Magistrate to deliver copy of inventory to the person from whose possession property is taken, and to applicant for -warrant. The magistrate must thereupon, if required, deliver a copy of the inventory to the person from whose possession the property was taken, and to the applicant for the warrant. § 807. If grounds for warrant controverted, magistrate to take testimony. If the grounds on which the warrant was issued be controverted, the magistrate must proceed to take testimony in relation thereto. g 808. Testimony, hoxr taken and authenticated. The testimony given by each witness must be reduced to writing and authenticated in the manner prescribed in section 200. § 809. Property, w^hen to be restored to person from whom it xras taken. If it appear that the property taken is not the same as that prescribed in the war- rant, or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the magistrate must cause it to be restored to the person from whom it was taken. § 810. Depositions, search warrant, return and inventory, to be returned to county court or city court having jurisdiction of offense. The magistrate must annex together the depositions, the search warrant and return, and the inventory, and return them to the next coxinty court of the county or city SPECIAL PEOCEEDINGS OF A CKIMINALl JSTATUEE. 653 court, having power to inquire into the offense in respect to which the search warrant was issued, by the intervention of a grand jury, at or before its opening on the first day. § 811. Malicionsly and -nithout probable cause procnrine search, irarrant, a misdemeanor. A person, who, maliciously or without probable cause, procures a search warrant to be issued and executed, is guilty of a misdemeanor. § 812. Peace officer, exceeding bis authority. A peace officer, who, in executing a search warrant, wilfully exceeds his authority, or Ksereises it with unnecessary severity, is guilty of a misdemeanor. § 813. Person charged with felony supposed to have a dangerous ireapon, etc. When a person charged with a, felony is supposed by the magistrate before whom he is brought, to have upon his person a dangerous weapon, or any thing which may be used as evidence of the commission of the offense, the magistrate may direct him to be searched in his presence, and the weapon or other thing to be retained, subject to his order or the order of the court in which the defendant may be tried. TITLE V. OP PROCEEDINGS BESPECT1N6 BASTABDS. Chapter I. — ^Proceedings before magistrates, respecting bastards. Chapter II. — Appeals from the orders of magistrates, respecting bastards. Chapter III. — Enforcement of the undertaking for the support of the bastard or its mother, or for appearance on appeal. CHAPTER I. PEOCEEDINGS BEFOEE MAGISTRATES, RESPECTING BASTABDS. Section 838. Definition of a bastard. 839. Who are liable for its support. 840. When bastard, chargeable to the public is born or is likely to be born, application to be made to justice of the peace or police justice. 841. Examination by the magistrate, and warrant against the father. 842. Justice designated as a magistrate, and person proceeded against as defendant. 843. Warrant, when to be served in another county. 844. Magistrate in another county, may take undertaking for support of bastard and mother, or for appearance of defendant at the sessions. 845. On giving undertaking, defendant to be discharged. 846. If undertaking not given, defendant to be taken before magistrate who issued the warrant. 847. Before what magistrate in the same county, defendant is to be taken, when the magistrate issuing the warrant is unable to act. 848. The magistrate to associate with himself another magistrate, and they to examine the matter. 849. Adjournment of examination; security from defendant. 654 CODE OF CEIMINAL PROCEDURE. Section 850. Determination of the case, and order of tlie magistrates. 851. Defendant to pay the costs, and give undertaking for support of bastard and mother, or for appearance at sessions. 852. On giving undertaking, defendant to be discharged; otherwise to be com- mitted. 853. Commitment of defendant, during examination. 854. Proceedings by magistrate, when security is given by defendant on arrest out of the county. 855. Examination in such case, and order thereon. 856. Magistrate may compel mother to disclose the father of the bastard; pro- ceedings, if she refuse. 857. If mother possess property, two magistrates may make an order that she pay for the support of the child. 858. If she do not comply, she must be committed, or discharged on under- taking. 859. Magistrates may reduce amount directed to be paid by the father or mother; county court may reduce or increase it. 860. Proceedings against the father or mother, absconding from their place of residence. § 838. Definition of a bastard. A bastard is a child who is begotten and born: 1. Out of lawful matrimony; 2. While the husband of its mother was separate from her, for a whole year previous to its birth; or, 3. During the separation of its mother from her husband, pursuant to a judgment of a competent court. § 839. [Am'd, 1904, 1908.] Who are liable for its support. The father and mother of a bastard are liable for its support. In case of tlieir neglect or inability, it must be supported by the county, city or town chargeable there- with under the provisions of the poor law. § 840. [Am'd, 1895, 1905.] Inquiry into facts of bastardy. If a woman be delivered of a bastard, or be pregnant of a child likely to be born such, and which is chargeable to a county, city or town, a superintendent of the poor of the county, or an overseer of the poor or other officer of the almshouse of the town or city where the woman is, must apply to a justice of the peace or a, police justice in the county to inquire into the facts of the case. § 841. Esamination by tbe magistrate and warrant against the father. The magistrate must, by the examination of the woman on oath, and any other testi- mony which may be offered, ascertain the father of the bastard, and must issue his warrant, directed to a peace officer of the county, commanding him, without delay, to apprehend the father, and bring him before the justice, for the purpose of having an adjudication as to the affiliation of the bastard. § 842. Justice designated as a magistrate, and person proceeded against as defendant. An officer issuing a warrant or making an examination, as provided in this chapter, is designated as a magistrate, and the person against whom the warrant is issued, as the defendant. SPECIAL PKOCEEDINGS OF A CRIMINAL XATURE. 655 S 843. Warrant, when to be served in another county. If the defendant reside in another county than that in Nvhieh the warrant is issued, the magistrate must, hy an indorsement thereon, direct the sum in which the defendant shall give security, and the officer must deliver the warrant to a justice of the peace or police justice in the city or town in which the defendant resides or is found. The magistrate to whom it is presented, on proof, under oath, of the signature of the magis trate who issued the warrant, must then indorse a direction thereon, that it be served in the county in which he resides, and the defendant may be arrested in that county accordingly. Upon this proof, the magistrate indorsing the warrant is exempted from liability to a civil or criminal action, though it afterward appear that the warrant was illegally or improperly used. § 844. Magistrate in another county, may take undertaking for support of bastard and mother, or for appearance of defendant at the sessions. When the defendant is arrested in another county, he must be taken before the magistrate who indorsed the warrant, or before another magistrate of the same city or county, who may take from the defendant an undertaking, with sufficient sureties, to the effect: 1. That he will indemnify the county, and town or city, where the bastard was or is likely to be born, and every other county, town or city, against any expense for the support of the bastard, or of its mother during her confinement and recovery, and to pay the costs of arresting the defendant, and of any order of filiation that may be made, or that the sureties will pay the sum indorsed on the warrant; or 2. That the defendant will appear and answer the charge at the next county court of the county where the warrant was issued, and obey its order thereon. § 845. On giving undertaking, defendant to be discharged. When either of the undertakings mentioned in the last section is given, the magis- trate must discharge the defendant, and must indorse a certificate of the discharge upon the warrant. He must also deliver the warrant, with the undertaking, to the officer, who must return it to the magistrate granting the warrant, by whom the same proceedings must be had, as if he had taken the undertaking. § 846. If undertaking not given, defendant to be taken before magistrate vpho issued the Tvarrant. If the defendant do not give security, as provided in section 844, the officer must take him before the magistrate who issued the warrant. § 847. Before what magistrate in the same county, defendant to be taken, -when the magistrate issuing the warrant is unable to act. If, however, the magistrate who issued the warrant be absent or unable to act, the defendant must be taken before the nearest or most accessible magistrate in the same county. The officer must, at the same time, deliver to the magistrate, the warrant with his return indorsed and subscribed by him. § 848. The magistrate to associate vrith himself, another magistrate, and they to examine the matter. The magistrate before whom the defendant is brought, as provided in the last two sections, must immediately associate with himself, another justice of the peace or police justice in the same county or city; and the two magistrates thus associated, must inquire into the charge, and must examine on oath, the woman who is the mother of, or 656 CODE OF CEIMINAL PKOCEDUEE. pregnant with, the bastard in the presence of the defendant, in respect to the charge, and hear any testimony which may be offered in relation thereto. § 849. Adjonrnmeiit of examination. Security from defendant. The magistrates may, on the application of the defendant, for good cause adjourn the examination, not exceeding thirty days, upon the defendant giving an undertaking, with two sufficient sureties, to the effect that he will appear before the magistrates at the time appoined, or that the surties will pay, the sum mentioned tlierein, which must be fixed by the magistrates, and which must be a full indemnity for the expense of supporting the bastard and its mother, as provided in section eight hundred and fifty- one. Until the determination by the magistrates, if not admitted to bail, the defen- dant must be detained in custody of an oflScer or be committed to the common jail for detention in the same manner as a prisoner arrested in a civil cause. § 850. [Am'd, 1904.] Determination of tlie case, and order of the magis- trates. Upon the hearing, the magistrates must determine who is the father of tlie bastard, and must proceed as follows: 1. If they determine that the defendant is not the father of the bastard, he must be forthwith discharged: 2. If they determine that he is the father, they must make an order of filiation, specifying therein the sum to be paid weekly or otherwise, by the defendant for the support of the bastard; and if the mother be indigent, the sum to be paid by the defendant for her support during her confinement and recovery, and in case said bastard shall die, that the defendant will pay the necessary funeral expenses ; 3. They must certify the reasonable costs of arresting the defendant, and of the order of filiation; 4. They must reduce their proceedings to writing, and subscribe them. § 851. Defendant to pay the costs, and give nndertahing for support of bastard and mother, or for appearance, etc. If the defendant be adjudged to be the father, he must immediately pay the amount certified for the costs of the arrest and of the order of filiation, and enter into an undertaking, with sufficient sureties approved by the magistrates, to the effect: 1. That he will pay weekly or otherwise, as may have been ordered, the sum directed to the support of the child, and of the mother during her confinement and recovery, or which may be ordered by the county court of the county, and that he will indemnify the county, and town or city where the bastard was or may be born (as the case may be), and every other county, town or city, which may have been or may be put to expense for the support of the bastard, or of its mother during her confinement and recovery, against those expenses, or that the sureties will do so, not exceeding the Bum mentioned in the undertaking, and which must be fixed by the magistrates; or 2. That he will appear at the next term of the county court of the county, to answer the charge and obey its order thereon, or that the sureties will pay a sum equal to a full indemnity for supporting the bastard and its mother, as provided in the first sub- division of section 844. § 852. On giving undertaking, defendant to be discharged; otherwise, to be committed. Upon a, compliance with the provisions of the last section, the magistrates must dis- charge the defendant; but otherwise, they or either of them, must, by warrant, commit him to the county jail, or in the city of New York, to the city prison of that city. SPECIAL PROCEEDINGS OF A OEIMINAL NATURE. 657 until he be discharged by the county court of the county, or deliver an undertaking as prescribed by the last section. § 853. Commitment of defendant during examination. During the examination and until the defendant is discharged by the magistrate, he must remain in the custody of the officer who arrested him unless an undertaking have been given for his appearance, as provided in section 844 and 849 ; and when com- raitted to prison, he must be actually confined therein. § 854. Proceedings by magistrate nrhen secnrity is given by defendant on arrest out of the county. When security taken out of the county, for the appearance of the defendant at the county court, as provided in section 844, is returned to the magistrate who issued the warrant, he must associate with himself another magistrate of the same county, and the magistrates thus associated must proceed as provided in sections 848 to 850, both inclusive. § 855. Examination in sncb case, and order thereon. The examination may be had, and the order of filiation made, in the absence of the defendant, unless, before the order is made, he require of the magistrate issuing the warrant, that the examination be had in his presence, in which case the examination must be had, as if the defendant had originally appeared. § 856. Magistrates may compel mother to disclose the father of the bastard; proceedings, if she refuse. In making an examination authorized by this chapter, the magistrate issuing the warrant, or the magistrates making the examination, may compel the mother of the bastard, chargeable to a county, city or town, or a woman pregnant of a child likely to be born such, to disclose the name of the father of tlie bastard; or if she refuse to do so, may, by a warrant setting forth the cause thereof, at the expiration of one month from her delivery, if sufficiently recovered, commit her to the county jail, or in the city of New York, to the city prison of that city, until she disclose the name of the father. § 857. If mother possesses property, turo magistrates may make an order that she pay for the support of the child. If the mother of a bastard, chargeable or likely to become chargeable, as provided In section 840, be possessed of property in her own right, any two magistrates of the county or city where she is, on the application of any of the officers mentioned in that section, must examine into the matter, and may make an order charging the mother with the payment of money weekly, or otherwise, for the support of the bastard. § 858. If she do not comply, she must be committed, or discharged on undertaking. If, after service of the order upon the mother, she do not comply therewith, she must be committed to the county jail, or in the city of New York, to the city prison of that city, until she comply, or enter into an undertaking, with sufficient sureties approved by the magistrates, to the effect that she will appear at the next term of the county court of the county, to answer the matters stated in the order, and obey its order thereon, or that the sureties will pay the sum mentioned in the undertaking, and which must be fixed by the magistrates. 42 658 CODE OF CKIMIIfAL PEOCEDUEE. § 859. Magistrates may reduce amounts directed to be paid hy father or mother; county court may reduce or increase it. The magistrate who may have made an order against the father or mother of a bastard, as provided in sections 850 and 857, may, from time to time, for good cause, reduce the amount therein directed to be paid, and upon the application of any of the oflScers mentioned in section 840, the county court of tlie county, upon ten days' notice to those officers, or to the father and mother of the bastard, may reduce or increase the amount so directed to be paid. § 860. Proceedings against the father or mother absconding from their place of residence. If the father and mother of a bastard, or of a child likely to be born such, abscond from their place of residence, leaving the bastard chargeable or likely to become charge- able to the public, a superintendent of the poor of the county, or an overseer of the poor or other officer of the almshouse of the town or city where the bastard was born, or is likely to be born, may apply to any magistrates of the city or county, where any property, real or personal, of the father or mother may be, for authority to take the same. Upon due proof of the facts on oath, to the satisfaction of the magistrates, they must issue their warrant, and proceed thereon, in the manner provided in title VIII, of this part, in relation to persons absconding and leaving their children chargeable to the public. CHAPTER II. APPEALS FROM THE MAGISTRATES RESPECTING BASTARDS. Section 861. Who may appeal, and in what cases. 862. Appeal, how taken. 863. Papers to be transmitted by magistrates, to court of sessions 864. Court to hear the case; evidence on hearing. 865. Court may affirm, vacate or modify the order, or adjourn the hearing till the bastard be born. 866. If the woman be not pregnant, or married before her delivery, or the child be not born alive, defendant to be discharged. 867. Order of the court, on affirmance. 868. Commitment of defendant, if he fail to give undertaking. 869. Undertaking for appearance on appeal, when forfeited. S70. When mother bound to appear at the county court, court to proceed as upon the appeal. 871. When the court may make an order against the mother, for the support of the bastard. 872. Proceedings against the mother, or affirmance or modification of the order of the magistrates. 873. Costs on appeal, when awarded and how paid. 874. Same. 875. When order of filiation vacated, except on the merits, court may make a new order of filiation, or bind the defendant to appear. 876. If order of filiation be vacated, except on the merits, magistrates may proceed anew. 877. Court to inquire into circumstances of father or mother, committed for not giving undertaking to support the bastard. 878. Father or mother unable to support the bastard, may be discharged. 879. Notice, before discharge, and examination of the matter. 880. Party cannot be discharged, but by the court. SPECIAL PROCEEDINGS OF A CRIMINAL NATURE. 659 § 861. Who may appear, and in irhat oases. A person deeming himself aggrieved by the order of two magistrates, made pursuant to the last chapter, may appeal therefrom to the next term of the county court of the county; except that a person who has executed an undertaking to obey an order of filiation, and indemnify the public, as provided in section 851, cannot appeal from any other part of the order mentioned in section 850, than that which fixes the weekly or other allowance to be paid. § 862. Appeal, ho-w taken. When the father or mother of the bastard has entered into an undertaking for appear- ance at the next term of the county court of the county, as provided in sections 851 and 858, it is an appeal from the order of filiation or maintenance; and no other notice thereof is necessary. In any other case, the appeal is taken, by a written notice of at least ten days before the court, to the magistrates who made the order, and to the party afifeeted thereby, or to the officer at whose instance it was obtained. g 863. Papers to be transmitted by magistrate to connty court. The magistrates receiving an undertaking for appearance at the county court must transmit it to the court, before its opening, with a certified copy of the order appealed from. § 864. Court to bear the case; CTidence on bearing. The court must immediately, or at any other time it may appoint, proceed to hear the allegations and proofs of the parties: and the party in whose favor the order was made, must support it by evidence. If the mother of the bastard be dead or insane, ber testimony on the examination before the magistrates is receivable evidence. § 865. Court may affirm, vacate or modify tbe order, or adjourn tbe bear- ing till the bastard be born. The court may affirm or vacate an order of filiation or maintenance, or may reduce or increase the sum ordered to be paid for the support of the bastard or its motlier; and, disregarding defects in form in the order, must amend it according to the fact. If, when the appeal is heard, the bastard be not born, the court may adjourn the hear- ing, until it be born, and in that ease, must take an undertaking from the party appeal- ing, for his appearance, in such sum and with such sureties as the court may deem sufficient. § 866. If TToman be not pregnant, or be married before her delivery, or the child be not born alive, defendant to be discharged. If the woman alleged to be pregnant, be not so, or be married before her delivery, or the child be not born alive, the defendant must be discharged from custody, or from the obligation of his undertaking, either by the court or magistrates upon the fact being made to appear. § 867. Order of the court, on affirmance. If, upon the hearing of the appeal, the county court affirm an order of filiation or maintenance, it must require the defendant to enter into an undertaking, with sufficient sureties, approved by the court, to the effect that he will pay, weekly or otherwise, according to the order as made by the magistrate or modified by the court, the sum directed for the support of the bastard, and of the mother during her confinement and recovery; and that he will indemnify the county, and town or city where the bastard was or may be born (as the case may be), and every other county, town or city, which may have been put to expense for the support of the child, or of its mother during her 660 CODE OF CKIMINAL PKOCEDUEE. confinement and recovery, against those expenses, or that the sureties will do so, not exceeding the sum mentioned in the undertaking, and which must be fixed by the court, § 868. Commitment of defendant, if he fail to give undertaking. If, on judgment of affirmance, the defendant do not enter into an undertaking, aa provided in the last section, he must be committed to the county jail, or in the city of New York, to the city prison of that city, until he do so, or be discharged by the court. § 869. Undertaking for appearance on appeal, when forfeited. The undertaking for the appearance of the defendant, at the county court, upon an appeal, is forfeited, by his neglect to appear, or to give the undertaking mentioned in the last two sections, unless he be discharged by the court. g 870. When mother bonnd to appear at the county court, court to proceed as upon an appeal. When the mother of a bastard is bound to appear at the county court, or is com- mitted as provided in section 858, the court must proceed in respect to the matter, in the same manner as upon an appeal. § 871. When the court may make an order against the mother, for the support of the bastard. If the court be satisfied that the mother has property in her own right, sufficient to enable her to support the bastard or contribute to its support, it must confirm the order mentioned in section 857, or may vary the sum ordered to be paid weekly or otherwise; or if not, it must discharge her from custody or from the obligation of her undertaking. § 872. Proceedings against the mother on affirmance or modification of the order of the magistrates. If the court affirm or modify the order, as provided in the last section, it must require the defendant to enter into an undertaking, with sufficient sureties approved by the court, to the efi'ect that she will pay, weekly or otherwise, according to the order, as made by the magistrates or modified by the court, the sum directed for the support of the bastard, or that the sureties will do so not exceeding the sum mentioned in the undertaking, and which must be fixed by the court. If the undertaking be not given she must be committed in the manner provided in section 868. § 873. Costs on appeal, when awarded and how paid. The court must award costs to the party in whose favor an appeal is determined. When awarded against county superintendents or overseers of the poor of a town, not liable for the support of its own poor, they must be paid by the county treasurer, on delivering to him a certified copy of the order and of the taxed costs, and must be charged by him to the town in the same county, liable to support the bastard, or if there be none, to the county. In the city of New York, when costs are awarded upon an appeal, to the person charged as the father or mother of the bastard, they must, upon the production, of similar vouchers, be paid by the comptroller of that city, and charged to the appropriation made to the commissioners of charities and corrections thereof. § 874. Same. In other cases, the payment of the costs may be enforced by the courts as in a civil action. If the party against whom they are awarded, reside out of the jurisdiction of SPECIAL PKOCEEDINGS OF A CRIMINAIi NATUEE. 661 the court, an action may be brought on the order, by the party entitled to the costs, in which the production of a certified copy of the order and of the taxed costs, is conclUBive evidence. § 875. [Am'd, 1909.] When order of filiation vacated, except on the merits, conrt may make a neir order of filiation, or bind the defendant to appear. If the court vacate an order of filiation, for any other cause than upon the merits, it must proceed, and make an original order of filiation, in the manner prescribed in the second subdivision of section 850, or bind, the person charged, in an undertaking, in a sum and with sureties, approved by the court, to appear at the next term of the county court. § 876. I£ ^order of filiation be vacated, except on the merits, magistrates may proceed aneiv. If the order be vacated for any other cause than on the merits, and the person charged be bound as provided in the last section, the same proceedings may be had by the magistrate, for the apprehension of the defendant, and for making an order of filiation, and for the commitment of the defendant for not giving an undertaking, as are authorized in the first instance. And the same proceedings must be subsequently had, in all respects. § 877. Conrt to inquire into circumstances of father or mother, committed for not giving undertaking to support the bastard. When a person is committed to prison, charged as the father of a bastard, or of a child likely to be born a bastard, and when the mother of a bastard is so committed, for not giving an undertaking to support the bastard, or to indemnify the public, the court must inquire, from time to time into the circumstances and ability of the father or mother to support the bastard and to procure security therefor. § 878. [Am'd, 1904.] Father or mother unable to support the bastard, may be discharged. If the court be at any time satisfied that the father or mother is wholly unable to support the bastard, or to contribute to its support, or to procure security therefor, it may, in its discretion, order the father or mother to be discharged from imprisonment; but if it shall thereafter at any time appear to the satisfaction of the court of general sessions of the county of New York, or to the county court of any other county, that the defendant has become and is able to contribute to the support of the bastard, and fails so to do, the court may revoke and vacate the aforesaid order discharging the defendant from arrest, and may order him to be rearrested and may require him to give a new undertaking in the manner provided in subdivision one of section eight hundred and fifty-one of the code of criminal procedure, and upon his failure to give such undertaking shall commit him to jail in the manner provided in section eight hundred and fifty-two of the code of criminal procedure. § 879. Notice before discharge, and examination of the matter. Before granting the order, the court must be satisfied that reasonable notice has been given to the overseer of the poor, or to the county superintendents, or chief ofiieers of the almshouse, at whose instance the party was committed, of the intention to apply for a discharge, and must hear the allegations and proofs of the superintendents, over- seers or officers, and may examine the party applying on oath respecting the subject of the application. 662 CODE OF CKIMINAL PEOCEDUEE. § 880. Party cannot be discharged, but by the court. A person committed, as provided in section 877, cannot be discharged from imprison- ment, except by the county court of the county. CHAPTER III. ENFOBCEMENT OP THE tJNDEETAKING FOB THE SUPPOBT OF THE BASTARD OE ITS MOTHEB, OE FOE APPEAEANCE ON APPEAL. Section 881. Court to order prosecution of undertaking, when forfeited; by whom prosecuted. 882. In whose name undertaking to be prosecuted. 883. Evidence in the action, and measure of damages. 884. For a subsequent breach of the undertaking, new action may be brought. 885. Costs, how recovered, when awarded against the plaintiff. 886. Action may be maintained on the order of the magistrates or court. § 881. Court to order prosecution of undertahing, irhen forfeited; by whom prosecuted. If an undertaking for the appearance at the county court of a person charged as the father or mother of a bastard, be forfeited, the court may order it to be prosecuted ; and the sum mentioned therein may be recovered, and when collected; must, except in the city of New York, be paid to the county treasurer, and by him credited to the town in the same county, liable to the support of the bastard, or if there be none, to the county. In the city of New York, the court must order the undertaking to be prosecuted by the commissioners of charities and corrections, and when collected, it must be paid into the city treasury. In every other county, it must be prosecuted by the district attorney. § 882. In xrhose name nndertahing to be prosecuted. When an undertaking to obey an order, in relation to the support of a bastard, or of a child likely to be born a bastard, or of its mother, is forfeited, it may be prosecuted in the name of the county superintendents of the county, or the overseers of the poor of the town, which was liable for the support of the bastard, or which may have Incurred any expense in the support of the bastard, or of its mother, during her confinement and recovery; or in the city of New York, in the name of the corporation of that city. § 883. Evidence in the action, and measure of damages. In the action mentioned in the last section, it is not necessary to prove the actual payment of money by a county superintendent, overseer of the poor, officer of an alms- house, or other person; but the neglect to pay a sum ordered to be paid by competent authority, for the support of the bastard, or of its mother, is a breach of the under- taking, and the measure of the damages is the sum ordered to be paid, and which was withheld at the time of the commencement of the action, with interest thereon. § 884. Fop a subsequent breach of the undertaking, new action may be brought. For a breach of the undertaking, after the recovery of damages or the commencement of an action, another action may, in the same manner, be brought. The money collected upon the undertaking must be paid, and credited, in the manner provided in section 881. SPECIAL PKOCEEDINGS OF A CEIMmAL A^ATURE. 663 § 885. Costs, hoixr recovered, irhen aurarded against the plaintiff. If, in the action, costs be awarded against the plaintiffs, they may be recovered aa follows : 1. If against the corporation of the city of New York, in the same manner as in any other action; 2. If against county superintendents or overseers of the poor, they must, upon the delivery of a transcript of the judgment, be paid by the county treasurer, and by him charged to the town in the same county, liable for the support of the bastard, or if there be none, to the county. § 886. Action may be miaintained on the order of the magistrates or court. An action may be maintained by the parties authorized by section 882, upon an order made by two magistrates, or county court, for tlie payment of a sum weekly or other- wise, for the support of the bastard or its mother, notwithstanding an undertaking may have been given to comply with the order; and in case of the death of the person against whom the order was made, an action may be maintained thereon against his executors or administrators. But when an undertaking is given to appear at the next term of the county court no action can be brought on the order until it is affirmed by the court. TITLE VI. OP PROCEEDINGS BESPECTIN6 VAGEANTS. SECTioif 887. Who are vagrants. 887a. Tramp defined. 888. Proceedings before magistrate, 889. Examination as to residence. 889a. Testimony in trials' for violations of section eight hundred and eighty- seven, subdivision four. 890. Peace officers, when required by any person, to carry vagrant before a magistrate for examination. 891. Vagrant, when to be convicted ; form of certificate of conviction. 891a. Commitment or probation of persons convicted of violations of section eight hundred eighty-seven, subdivision four. 892. Certificate to constitute record of conviction, and to be filed; commitment of vagrant. 893. . 894. Peace officers to arrest and pursue a person disguised, and take him before a magistrate. 895. Private citizen may do so, without warrant. 896. Peace officer may require aid; duty of persons required to aid him. 897. Neglect or refusal to aid peace officer, without lawful cause, a misdev meanor ; punishment. 898. Magistrate may depute an elector of the county to make arrest of person disguised; if his name be not known, fictitious name may be used. 898a. Summary punishment of professional criminals. § 887. Who are vagrants. The following persons are vagrants: 1. A person who, not having visible means to maintain himself, lives without employment ; 2. A person who, being an habitual drunkard, abandons, neglects or refuses to aid in the support of his family; :664 CODE OF CEIMIl^AL PEOCEDITEE. 3. A person who has contracted an infectious or other disease, in the practice of drunkenness or debauchery, requiring charitable aid to restore liim to health; 4. [Am'd, 1915, 1919.] A person (a) who oflfers to commit prostitution, or (b) who oflfers or oflFers to secure another "for the purpose of prostitution, or for any other lewd or indecent act; or (c) who loiters in or near any thoroughfare or public or private place for the purpose of inducing, enticing or procuring another to commit lewdness, fornication, unlawful sexual intercourse or any other indecent act; or (d) who in any manner induces, entices or procures a person who is in any thoroughfare or public or private place, to commit any such acts; or (e) who receives or oflfers or agrees to receive any person into any place, structure, house, building or conveyance for the purpose of prostitution, lewdness or assignation or knowingly permits any person to remain there for such purposes; or (f) who in any way, aids or abets or participates in the doing of any of the acts or things enumerated in subdivision four of section eight hundred and eighty -seven of the code of criminal procedure; or (g) who is a common prostitute, who has no lawful employment whereby to maintain herself. 5. A person wandering abroad and begging, or who goes about from door to door, or places himself in the streets, highways, passages, or other public places, to beg or receive alms; 6. A person wandering abroad and lodging in taverns, groceries, ale-houses, watch ot station-houses, out-houses, market places, sheds, stables, barns or uninhabited buildings, or in the open air, and not giving a good account of himself; 7. A person, who, having his face painted, discolored, covered or concealed, or being otherwise disguised, in a manner calculated to prevent his being identified, appears in a road or public highway, or in a field, lot, wood or inclosure; 8. Any child between the age of five and fourteen, having suflBcient bodily health and mental capacity to attend the public schools, found wandering in the streets or lanes of any city or incorporated village, a truant, without any lawful occupation. 9. [Subdivision repealed by L. 1910, ch. 381.] 10. [Added, 1907.] A person who has been more than once convicted as a pick- pocket, thief, burglar, and having no visible means of support, found loitering about steamboat landings, railroad stations, banking institutions, crowded thoroughfares, cars, omnibuses, hotels, or any public gatherings or assembly, and unable to give a satisfactory explanation of his presence. § 887-a. [Added, 1898.] Tramp defined. A tramp is any person, not blind, over sixteen years of age, and who has not resided in the county in which he may be at any time for a period of six months prior thereto, who 1. Not having visible means to maintain himself, lives without employment; or 2. Wanders abroad and begs, or goes about from door to door, or places himself in the streets, highways, passages or public places to beg or receive alms ; or 3. Wanders abroad and lodges in taverns, groceries, ale-houses, watch or station houses, outhouses, market places, sheds, stables, barns or uninhabited buildings, or in open air, and does not give a good account of himself. § 888. [Am'd, 1888, 1909.] Proceedings before magistrate. When complaint is made to any magistrate by any citizen or peace oflfieer against any vagrant under subdivision eight of the last section, such magistrate must cause a peace officer to bring such child before him for examination and shall also cause the parent, guardian or master of such child, if the child has any, to be summoned to attend such SPECIAL PKOCEEDINGS OF A OEIMIl^AL NATUEE. 665 examination. If thereon the complaint shall be satisfactorily established, the magis- trate must require the parent, guardian or master to enter into an engagement in writing to the corporate authorities of the city or village that he will restrain such child from so wandering about, will keep him in his own premises, or in some lawful occupation and will cause him to be sent to some school at least four months in each year, until he becomes fourteen years old. The magistrate may, in his discretion, require security for the faithful performance of such engagement. If the child has no parent, guardian or master, or no'he can be found, or if the parent, guardian or master refuse or neglect, within a reasonable time, to enter into such engagement, and to give such security, if required, the magistrate shall make the like disposition of such child as is authorized to be made by section four hundred and eighty-six of the penal law, of children coming within the description therein mentioned. § 889. [Added, 1898, 1909.] Examination as to residence. When complaint is made to any magistrate by an citizen or peace officer against a person under subdivision one, five or six of section eight hundred and eighty-seven, the magistrate, upon the examination of such person, cause testimony to be taken as to his residence, and it appears that such person has not resided in the county for a period of six months prior to his arrest, such magistrate shall not commit such person as a vagrant, as provided by this article; but if he finds that such person is guilty of an offense charged in one of such subdivisions, and such person is not blind or under sixteen years of age, the magistrate shall adjudge him to be a tramp, and commit him to a penitentiary, as required by law. On such examination the uncorroborated testi- mony of the defendant as to his place of residence shall not be deemed sufficient proof thereof. [This section does not apply to cities of the first and second class. Laws of 1898, chap. 664, § 6.] § S89-a. [Added, 1919.] In the trial of any person charged with a violation of subdivision four of section eight hundred and eighty-seven of the code of criminal procedure, testimony concerning the reputation of the place wherein the oiTense occurred or of persons who frequent or reside therein shall be admissible in evidence in support of the charge. § 890. Peace officers, -wlien required by any person, to carry vagrant liefore a magistrate for examination. A peace officer must, when required by any person, take a vagrant before a justice of the peace or police justice of the same city, village or town, or before the mayor, recorder, or city judge, or judge of the general sessions of the same city, for the purpose of examination. § 891. [Am'd, 1898.] Vagrant; \rhen to be convicted; form of certificate of conviction. If the magistrate be satisfied, from the confession of the person so brought before him, or by competent testimony, that he is a vagrant, and has resided in the county for a period of six months prior to his arrest, he must convict him, and must make and sign, with his name of office, a certificate substantially in the following form : " I certify that A. B., having been brought before me, charged with being a, vagrant, 1 have duly examined the charge, and that upon his own confession in my presence [or ' upon the testimony of C. D.,' et cetera, naming the witnesses] , by which it appears that he is a person [pursuing the description contained in the subdivision of section eight hundred and eighty-seven, which is appropriate to the case], and if convicted under subdivisions one, five or six of section eight hundred and eighty-seven that he has 666 CODE OF CKIMIJ^AL PKOCEDUKE. resided in the county of for a period of six months immediately prior to his arrest, I have adjudged that he is a vagrant. " Dated at the town [or city] of the day of , 19 . . . "E. F. " Justice of the peace of the town of '' [or as the case may be]. § 891-a. [Added, 1919.] Any person convicted in a city of a violation of subdivision four of section eight hundred and eighty-seven of the code of criminal procedure, shall be committed by the court or judge to any reformatory or house of refuge or other correctional institution for a period not to exceed three years or to a county jail, penitentiary or other penal institution for a period nbt to exceed one year, or placed on probation for a period not to exceed three years, provided, in the case of a person infected with venereal disease, such probation shall be granted only upon such terms and conditions as shall insure medical treatment of such disease and prevent the spread thereof, and no girl or woman shall be placed on probation except to a woman probation officer where available. The provisions of this subdivision shall not supersede the provisions of chapter six hundred and fifty-nine of the laws of nineteen hundred and ten or any amendment thereto, relating to the commitment of convicted persons. § 892. [Am'd, 1886, 1898, 1911.] Certificate to constitute record of con- viction, and to be filed; commitment of vagrants. The magistrate must immediately cause the certificate which constitutes the record of conviction, together with the testimony taken before him as to the residence of such vagrant, to be filed in the office of the clerk of the county, and must, by a warrant signed by him, with his name of office, commit the vagrant, for not exceeding six months at hard labor to the county jail. In those counties of the state where the distinction between county poor and town poor is maintained, the expense of the conviction and maintenance during the commitment of any vagrant committed to the county jail, who shall, at the time of such commitment, have obtained a legal settlement in one of the towns of the county in which said persons shall be convicted, shall be a charge upon the town where they may reside at the time of such commitment. § 893. [Repealed, 1888.] § 894. Peace ofiScers to arrest and pursue a person disguised, and take him before a magistrate. It is the duty of every peace officer of the county, city, village, or town, where a person described in the seventh subdivision of section 887 is found, to arrest and take him before a magistrate mentioned in section 888, to be proceeded against as a vagrant. § 895. Private citizen may do so without xrarrant. A private citizen of the county may also, without warrant, exercise the powers con- ferred upon a peace officer by the last section. § 896. Peace officer may require aid; duty of persons required to aid bim. In the execution of duties imposed by section 894, the peace officer may command the aid of as many male inhabitants of his county, city, village or town, as he may think proper; and a citizen so commanded, may provide himself or be provided with, such means and weapons as the officer giving the command may designate. SPECIAL PKOCEEDINGS OF A CRIMINAL NATUEE. 667 § 897. Neglect or refusal to aid peace officer, without cause, a misdemeanor; punishment. A person commanded to aid the officer, as prescribed in the last section, and who without lawful cause refuses or neglects to do so, is guilty of a misdemeanor, and is punishable by a fine not exceeding two hundred and fifty dollars, or by imprisonment not exceeding one year, or both. § 898. Magistrate may depute an elector of the county to make arrest of person disguised; if his name be not know fictitious name may be used. A magistrate to whom complaint is made against a, person charged as a vagrant, as described In the seventh subdivision of section 887, may, by a warrant, signed by him with his name of office, depute an elector of the county to arrest and bring the vagrant before him, to answer the complaint; and if the name of the person complained of be not known, he may be described in the warrant and in all subsequent proceedings thereon, by a fictitious name. § 898-a. [Added, 1909.] Summary punishment of professional criminals. If any person shall be charged on oath or affirmation before any police magistrate or justice of the peace in this state with being a professional thief, burglar, pickpocket, counterfeiter or forger, or shall have been arrested by the police authorities at any steamboat landing, railroad, depot, church, banking institution, brokers' office, place of public amusement, auction room, store, auction sale in private residence, passenger car, hotel or restaurant, or at any other gathering of people, whether few or many, and if it shall be proven to the satisfaction of any such magistrate or justice of the peace, by sufficient testimony, that he or she was frequenting or attending such place or places for an unlawful purpose, and that he or she has at some time been convicted of any of the crimes herein named, he or she shall be deemed a disorderly person, and upon conviction after trial shall be committed by the said magistrate or justice of the peace to the penitentiary, in counties where there is a penitentiary, for a term not exceeding one hundred days, there to be kept at hard labor, and in counties where there is no penitentiary, or where no contract exists with any authorities of any penitentiary in the state, then to the county jail of said county, for a term not exceeding one hundred days, or, in the discretion of any such police magistrate or justice of the peace, he or she shall be required to enter security for his or her good behavior for a period not exceeding one year. Any person who may or shall feel aggrieved at any such act, judgment or determination of any such police magistrate or justice of the peace, pursuant to the provisions of this section, may apply to any judge or justice of any court having the power to issue a writ of habeas corpus for the issuance of said writ, and upon return thereof there shall be a hearing of the evidence, and the judge or justice may either discharge, modify or confirm the commitment. 668 CODE OF CEIMINAL PKOCEDUEE. TITLE VII. OF PBOCEEDINGS BESPECTING DISOEDEELY PERSONS. Section 899. Who are disorderly persons. 900. On complaint, warrant to be issued. 901. On confession or proof that he is a disorderly person, security to be required. 902. If security given, defendant to be discharged; if not, to be convicted; form of certifioate. 903. Certificate, to constitute record of conviction, and to be filed; commit- ment thereon. 904. Undertaking, when forfeited. 905. How prosecuted, and proceeds how applied. 906. When new security may be required, or defendant committed after recov- ery or undertaking. 907. Defendant committed for not giving security, how discharged. 908. Keeper of prison, to return list of disorderly pe'rsons committed. 909. Examination of the ease by the court. 910. Court may discharge, or authorize the binding out of disorderly person. 911. Court may also commit him to prison; nature and duration of imprison- ment. 912. Order to procure materials and implements, and to compel him to work. 913. Expense of materials or implements, how paid for, and proceeds of labor, how disposed of. § 899. Who are disorderly persons. The following are disorderly persons : 1. Persons who actually abandon their wives or children, without adequate support, or leave them in danger of becoming a burden upon the public, or who neglect to provide for them according to their means; 2. Persons who threaten to run away, and leave their wives or chifdren a burden upon the public. 3. Persons pretending to tell fortunes, or where lost or stolen goods may be found. 4. Keepers of bawdy houses or houses for the resort of prostitutes, drunkards, tip- plers, gamesters, habitual criminals, or other disorderly persons; 5. Persons who have no visible profession or calling, by which to maintain them- selves, but \Yho do so, for the most part by gaming; 6. Jugglers, common showmen and mountebanks, who exhibit or perform for profit puppet shows, wire or rope dancers, or other idle shows, acts or feats ; 7. Persons who keep, in a public highway or place, an apparatus or device for the purpose of gaming, or who go about exhibiting tricks or gaming, therewith; 8. Persons who play, in a public highway or place, with cards, dice or any other apparatus or device for gaming; 9. Habitual criminals within the provision of this code. § 900. On complaint, warrant to be issued. Upon complaint on oath, to a justice of the peace or police justice of a city, village or town, or to the mayor, recorder, city judge or judge of the general sessions of a city, against a person, as being disorderly, the magistrate must issue a warrant signed by him, with his name of office, requiring a peace officer to arrest the defendant, and bring faim before the magistrate for examination. SPECIAL PEOCEEDINGS OF A CRIMIA^AIi Is'ATURE. CG9 § 901. [Am'd, 1909, 1917.] On confession or proof that he is a disorderly person, punishmient or security to be required. If the magistrate be satisfied, from the confession of the defendant, or by competent testimony, that he is a disorderly person, he may require that the person charged give security, by a written undertaking, with one or more sureties approved by the magis- trate, to the following effect : 1. If he be a person described in the first or second subdivision of section eight hundred and ninety-nine, that he will pay to the county superintendent of the poor or to the overseer of the poor of the town, city or village, or to a society for the prevention of cruelty to children, weekly for the space of one year thereafter a reason- able sum of money to be specified by the magistrate for the support of his wife or children ; 2. In all other cases, except as provided in subdivision three of this section, that he will be of good behavior for the space of one year; Or that the sureties will pay the sum mentioned in the undertaking, and which must be fixed by the magistrate. 3. Within the city of New York, all persons described in subdivision three of section eight hundred and ninety-nine shall be liabl^, upon conviction, to a fine not to exceed two hundred and fifty dollars, or to imprisonment not to exceed six months, or to both such fine and imprisonment. § 902. If security given, defendant to be discharged; if not, to be con- victed; form of certificate. If undertaking be given, the defendant must be discharged. But if not, the magis- trate, must convict him as a disorderly person, and must make and sign with his name of office, a certificate in substantially the following form : "I certify that A. B., having been brought before me, charged with being a disorderly person, I have duly examined the charge, and that upon his own confession in my presence [or 'upon the testimony of C. D.,' etc., naming the witnesses], by which it appears that he is a [pursuing the description contained in the subdivision of section 899, which is appropriate to the case], I have adjudged that he is a disorderly person. " Dated at the town [or city] of , the day of , 19 . . . " E. F., " Justice of the peace of the town of " [or as the case may be]. § 903. [Am'd, 1882, 1902, 1910, 1916.] Certificate to constitute record of conviction, and to be filed; commitment thereon; probation. The magistrate must immediately cause the certificate, which constitutes the record of conviction, to be filed in the office of the clerk of the county, and must, by a warrant signed by him with his name of office, commit the defendant to the county jail, or in the city of New York, to the city prison or penitentiary of that city, or in the county of Monroe, to the penitentiary of that county, or in the county of Westchester to the penitentiary and workhouse of that county, for not exceeding six months at hard labor, or until he gives the security prescribed in section nine hundred and one; or, if the defendant be a person described in the first or second subdivision of section eight hundred and ninety-nine, the magistrate may require him while on probation to pay through the probation officer weekly a reasonable sum for the support of his wife or children. § 904. XJndertahing, when forfeited. The undertaking mentioned in section nine hundred and one is forfeited by the commission of any of the acts which constitute the person by whom it was given a 670 CODE OF ceimi:n^al pkoceduee. disorderly person and in the case of a person described in tlie first and second sub- divisions of sections eight hundred and ninetynine by the failure to make the weekly payments ordered by the magistrate, and in the case of a person described in the seventh and eighth subdivisions of section eight hundred and ninety-nine, by his playing or betting, at one time or sitting, for money or property exceeding the value of two dollars and fifty cents. (Amended by L. 1909, ch. 506, in effect Sept. 1,1909.) § 905. [Am'd, 1901, 1917.] Ho-nr prosecuted, and proceeds how applied. When an undertaking is forfeited, it may be prosecuted in the name of the county superintendent of the poor, or the overseers of the poor of the town or in the city of New York, in the name of the corporation of that city, and the sum collected in the action must be paid into the county or city treasury, as the case may be for the benefit of the poor, except where the condition of the bond is as set forth in subdivision one of section nine hundred and one of this code, the sum collected must be paid by the party receiving the same for the benefit of the person for whose support said bond was given. In case the defendant is an Indian, it must be prosecuted in the name of the people of the state of New York by the attorney-general, or at his request by the district attorney of the county, and the sum collected in the action, must be paid into the state treasury, for" the benefit of the Indian poor. § 906. When nev security may be required, or 'defendant committed after recovery on undertaking. Upon a recovery on the undertaking, the court in which it is had may require from the defendant new security, in the manner provided in section 901, or if he fail to give it, may commit him in the manner provided in section 903. § 907. Defendant committed for not giving security, hoiv discharged. A person committed as a disorderly person, on failure to give security, may be discharged by the committing magistrate, or by any two justices of the peace, or police justices or magistrate, or the county judge of the county, upon giving security as originally required, pursuant to section nine hundred and one. § 908. Keeper of prison, to return list of disorderly persons committed. The keeper of every prison to which disorderly persons may be committed, must return to the county court of the county, on the first day of each term, a list of the persons so committed and then in his custody, with the nature of the offense of each, the name of the magistrate by whom he was committed, and the term of his imprison- ment. § 909. Esamination of the case by the court. The county court must thereupon inquire into the circumstances of each ease, and hear any proof that may be ofi'ered, and must examine the record of conviction, which is evidence of the facts contained in it, imtil disproved. § 910. [Am'd, 1895, 1910, 1916.] Court may discharge, place on probation, or authorize the binding out of disorderly person. The court may discharge a person so committed from imprisonment, either absolutely or on parole under a salaried probation officer, or upon his giving security as provided in section nine hundred and one, or if he be a minor, may authorize the county superin- tendents of the poor, or the overseers of the poor of the town, or in the city of Xew York, the commissioner of charities, or in the county of Westchester, the commissioner of charities and corrections, to bind him out in some lawful calling as a servant, apprentice, mariner or otherwise, until he b& of age, or if he be of age, to contract SPECIAL PKOCEEDINGS OF A CElMmAIi NATUKE. 671 for his service with any person, as a laborer, servant, apprentice, mariner or otherwise, for not exceeding one year. The binding out or contract, pursuant to this section, has the same effect as the indenture of an apprentice, with his own consent and that of his parents, and subjects the person bound out or contracted, to the same control of his master and of the county court of the county, as if he were bound as an apprentice. § 911. [Am'd, 1916.] Court may also commit him. to prison; nature and duration of imprisonment. The court may also, in its discretion, order a person convicted as a disorderly person, to be kept in the county jail; or, in the city of New York, in the city prison or peni- tentiary of that city; or in the county of Westchester, in the penitentiary and work- house of that county, for a term not exceeding six months at hard labor. § 912. Order to procure materials and implements, and to compel him to ivorh. If there be no means provided in the prison for employing the offender at hard labor, the court may direct the keeper to furnish him such employment as it may specify, and for that purpose to purchase materials and implements, not exceeding a prescribed value, and to compel the offender to perform the work allotted to him. The expenses incurred in carrying the order into effect must be paid to the keeper by the county treasurer, upon the delivery to him of the order of the court, and an account under the oath of the keeper, of the materials and implements furnished. § 913. Expense of materials or implements, hew paid for, and proceeds of labor, hair disposed of. The keeper must sell the produce of the labor of the offender, and must account for the cost of the materials or implements purchased, and for one-half of the surplus, to the board of supervisors, and pay it into the county treasury, and pay the other half of the surplus to the person by whom it was earned, on his discharge from imprison- ment. He must also account to the court, when required, for the materials or imple- ments purchased, and for the disposition of the proceeds of the labor of the offender. 672 CODE OF CEIMlxYAL PEOCEDUEE. TITLE VIII. OF PBOCEEDINGS KESPECTINO THE SUPPORT OF POOR PEESONS. SECTlOif 914. Who may be compelled to support poor relatives. 915. Order to compel a person to support a poor relative, by whom and how applied for, to court of sessions. 916. Court to hear the case, and make order of support. 917. Support, vphen to be apportioned among different relatives. 918. Order, to prescribe time during which support is to continue, or may be indefinite; when and how order may be varied. 919. Costs, by whom to be paid, and how enforced. 920. Action on the order, on failure to comply therewith. 921. Parents leaving their children chargeable to the public, how proceeded against. 922. Seizure of their property; transfer thereof, when void. 923. Warrant and seizure, when confirmed or discharged; direction of the court thereon. 924. Warrant in what cases to be discharged. 925. Sale of the property seized, and application of its proceeds. 926. Powers of superintendents of poor. § 914. [Am'd, 1898.] Who may be compelled to support poor relatives. The father, mother and children, if of sufficient ability, of a poor person who is insane, blind, old, lame, impotent or decrepit, so as to be unable to work to maintain himself, must, at their own charge, relieve and maintain him in a manner to be approved by the overseers of the poor of the town where he is, or in the city of New York, by the commissioners of public charities. If such poor person be insane, he shall be maintained in the manner prescribed by the insanity law. The father, mother, husband, wife or children of a poor insane person legally committed to and confined in an institution supported in whole or in part by the state, shall be liable, if of sufficient ability, for the support and maintenance of such insane person from the time of his reception in such institution. § 915. [Am'd, 1898, 1904, 1913.] Order to compel a person to support a poor relative, et cetera. If a relative of a poor person fail to relieve and maintain him, as provided in the last section, the overseers of the poor of the town where he is, or in the city of New York, the commissioners of public charities may apply to the court of general sessions of the county of New York, or to the supreme court of the state of New York, or to the county court of any other county where the poor person dwells, for an order to compel such relief, upon at least five days' written notice, served personally, or by leaving it at the last place of residence of the person to whom it is directed, in case of his absence, with a person of suitable age and discretion. If such poor person be insane and legally committed to and confined in an institution supported in whole or in part by the state, and his relatives refuse or neglect to pay for his support and maintenance therein, application may be made by the treasurer of such institution in the manner provided in this section, for an order directing the relatives liable therefor to make such payment. § 916. [Am'd, 1898.] Court to hear the case and mahe order o£ support. At the time appointed in the notice, the court or a judge thereof must proceed sum- marily to hear the allegations and {)roofs of the parties, and must order such of the SPECIAL PROCEEDINGS OF A CRIMmAL NATUEE. 673 relatives of the poor person mentioned in section nine hundred and fourteen, as were served with the notice and are of sufficient ability, to relieve and maintain him, specifying in. the order the sum to be paid weekly for his support, and requiring it to be paid by the father, or if there be none, or if he be not of sufficient ability, then by the children, or if there be none, or they be not of sufficient ability, then by the mother. If the application be made to secure an order compelling relatives to pay for the main- tenance of insane poor persons committed to and confined in an institution supported in whole, or in part by the state such order shall specify the sum to be paid for his maintenance by his relatives liable therefor, from the time of his reception in such institution to the time of making such order, and also the sum to be paid weekly for his future maintenance in such institution. The relatives served with such notice shall be deemed to be of sufficient ability, unless the contrary shall affirmatively .appear to the satisfaction of the court or a judge thereof. § 917. [Am'd, 1898.] Support; when to be apportioned among different relatives. If it appear that any such relative is unable to wholly maintain the poor person or to pay for his maintenance if confined in a state institution for the insane, but is able to contribute toward his support, the court or a judge thereof may direct two or more relatives of different degrees, to maintain him or to pay for his maintenance in such an institution if insane, prescribing the proportion which each must contribute for that purpose; and if it appear that the relatives are not of sufficient ability wholly to maintain him, or to pay for his maintenance in such an institution, if insane, but are able to contribute something, the court or a judge thereof must direct the sUm, in proportion to their ability, which they shall pay weekly for that purpose. If it appears that the relatives who are liable for the maintenance of an insane poor person confined in a state institution for the insane are not able to pay the whole amount due for such maintenance from the time of such poor person's admission to such institution, the court or a judge thereof must direct the sum to be paid for such maintenance in proportion to the ability of the relatives liable therefor. § 918. [Am'd, 1898.] Order to prescribe time during which support is to continue, or may be indefinite; when and how order may be varied. The order may specify the time during which the relatives must maintain the poor person, or during which any of the sums directed by the court or a judge thereof are to be paid, or it may be indefinite or until the further order of the court or a judge thereof. If the order be for payment of a weekly sum for the maintenance of an insane poor person in a state institution, the order shall specify that such sum shall be paid as long as such insane poor person is maintained in such institution. The court or a judge thereof may from time to time vary the order, as circumstances may require, on the application either of any relative affected by it, or of an officer on whose application the order was made, upon ten days' written notice. § 919. Costs, by whom paid, hoiv enforced. The costs and expenses of the application must be ascertained by the court, and paid by the relatives against whom the order is made; and the payment thereof, and obedi- ence to the order of maintenance, and to any order for the payment of money, may be enforced by attachment. § 920. [Am'd, 1898.] Action on the order on failure to comply therewith. If a relative, required by an order of the court or a judge thereof to relieve and maintain a poor person, neglect to do so in the manner approved by the officers men- 43 674: CODE OF CEIMIISrAL PEOCEDUEE. tioned in Bection nine hundred and fourteen, and neglect to pay them weekly the sum prescribed by the court or a judge thereof, the officers may maintain an action against the relative, and recover therein the sum prescribed by the court or a judge thereof for every week the order has been disobeyed, to the time of the recovery, with costs, for the use of the poor. If the order directs a relative to pay for the maintenance of an insane poor person in a state institution, and such relative refuses or neglects to pay the amount specified therein, an action may be brought by the treasurer of such insti- tution in its corporate name to recover the amount due to such institution by virtue of such order. § 921. [Am'd, 1903.] Parents leaving their children chargeable. When the father, or the mother being a widow or living separate from her husband, absconds from the children, or a husband from his wife, leaving any of them chargeable or likely to become chargeable upon the public, the officers mentioned in section nine hundred and fourteen may apply to any two justices of the peace or police justices in the county in which any real or personal property of the father, mother or husband is situated, for a warrant to seize the same. Upon due proof of the facts, the magis- trate must issue his warrant authorizing the officers so applying to take and seize the property of the person so absconding. Whenever any child shall be committed to an institution pursuant to any provision of law, any criminal court or magistrate may issue a warrant for the arrest of the father of the child, and examine into his ability to maintain such child in whole or in part; and if satisfied that such father is able to contribute toward the support of the child, then such court or magistrate shall, by order, require the weekly payment by such father of such sum, and in such manner as shall be in said order directed, towards the maintenance of such child in such institu- tion, which amount when paid shall be credited by the institution to the city, town or county against any sums due to it therefrom on account of the maintenance of the child. § 922. Seizure of their property; transfer thereof, when void. The officers so applying may seize and take the property, wherever it may be found in the same county; and are vested with all the right and title thereto, which the person absconding then had. The sale or transfer of any personal property, left in the county from which he absconded, made after issuing the warrant, whether in payment of an antecedent debt or for a new consideration, is absolutely void. Tlie officers must immediately make an inventory of the property seized by them, and return it, together with their proceedings, to the next county court of the county where they reside, there to be filed. § 923. Warrant and seizure, -nrhen confirmed or discharged. The court, upon inquiring into the circumstances of the case, may confirm or dis- charge, the warrant and seizure; and if it be confirmed, must, from time to time, direct what part of the personal property must be sold, and how much of the proceeds of the sale, and of the rents and profits of the real property, if any, are to be applied toward the maintenace of the children or wife of the person absconding. § 924. Warrant, in ivhat case to be discharged. If the party against whom the warrant issued, return and support the wife and children so abandoned, or give security satisfactory to any two justices of the peace, or police justices in the city, village or town, to the overseers of the poor of the town, or in the city of New York, to the commissioners of charities and corrections, that the wife or children so abandoned shall not be chargeable to the town or county, then the SPECIAL PEOCEEDINGS OF A CHIMIN AI> NATUKE. 675 warrant must be discharged by an order of the magistrate, and the property taken by virtue thereof restored to the party. § 925. Sale of the property seized and application of its proceeds. The officers must sell at public auction the property ordered to be sold, and receive the rents and profits of the real property of the person absconding, and in those cities, villages or town which are required to support their own poor, the officers charged therewith must supply the same to the support of the wife or children so abandoned; and for that purpose must draw on the county treasurer, or in the city of New York, upon the comptroller, for the proceeds as directed by special statutes. They must also account to the county court of the county, for all money so received by them, and for the application thereof, from time to time, and may be compelled by that court to render that account at any time. § 926. [Am'd, 1918.] Fotrers of superintendents of poor. When the poor person for whom relief is sought is a charge upon a county, the superintendents of the poor are vested with the same powers, as are given by this title to the overseers of the poor of a town, in respect to compelling relatives to maintain poor persons, and in respect to the seizure of the property of a parent absconding and abandoning his family; and are entitled to the same remedies in their names, and must perform the duties required by this title, of overseers, and are subject to the same obligations and control. TITLE IX. OF PE0CEEDIN6S EESPECTIN6 MASTERS, APPRENTICES AND SBaiVANTS. Section 927. Complaint against apprentice or servant, for absenting himself or refus- ing to serve, or for a misdemeanor or ill behavior. 928. Warrant, when complaint is made in the absence of the defendant. 929. Warrant, by whom and how executed. 930. Hearing the complaint, and committing or discharging the defendant. 931. Complaint against the master, for cruelty, misusage or violation of duty. 932. Hearing the complaint, and dismissing it or discharging the apprentice or servant. 933. Preceding sections, Bot applicable to apprentice with whom money is re- ceived or agreed for. 934. Complaint against master in such case, and directibn thereon. 935. If complaint not compromised, the master to be held to appear at sessions. 936. Proceedings thereon and order of the court. 937. Complaint by master against clerk or apprentice, where money is paid or agreed for; clerk or apprentice, when held to appear at sessions. 938. Proceedings thereon, and order of the court. 939. Indenture or contract of service, how assigned on death of master. 940. Same. § 927. Complaint against apprentice or servant, for absenting himself, or refusing to serve, or for a misdemeanor or ill behavior. If an apprentice or servant, lawfully bound to serve as prescribed by special statutes, wilfully absent himself therefrom, without the leave of his master, or refuse to serve according to his duty, or be guilty of any misdemeanor or ill behavior, his master may make complaint of the facts under oath, before a justice of the peace or police justice in the county, or before the mayor, recorder or city judge of the city where he resides. 676 CODE OF CEIMINAL PROCEDUKE. § 928. Warrant, when complaint is made in tlie absence of the defendants If the complaint be made in the absence of the defendant, and the facts be proved to the satisfaction of the magistrate, he must issue a warrant, signed by him, with his name of office, to a peace officer of the county or city, commanding him to arrest the defendant and bring him before the magistrate forthwith, or at a specified time and place, to answer the complaint. § 929. AVarrant, by xrhom and hoir executed. The peace officer must accordingly execute the warrant, by arresting the defendant and taking him before the magistrate. g 930. Hearing the complaint, and committing or discharging the ' defendant. The magistrate must immediately, or at a time to which he may, for good cause, adjourn the matter, proceed to hear the allegations and proofs of the parties, and if the complaint appear to be well founded, must commit the defendant to the county jail, or in the city of New York, to the city prison of that city, for not exceeding one month, at hard labor, where he must be confined in a room with no other person; or may, by a certificate, signed by him with his name of office, discharge the defendant from the service of his master, and the master from all obligations to the defendant. § 931. Complaint against the master, for cruelty, misusage, or violation of duty. If a master be guilty of cruelty, misusage, refusal of necessary provisions or cloth- ing, or any other violation of duty toward his apprentice or servant, as prescribed by special statutes, or by the indenture or contract of service, the apprentice or servant may make complaint on oath, to any of the magistrates mentioned in section 927, who must summon the defendant before him at a specified time and place. § 932. Hearing the complaint, and dismissing it or discharging the apprentice or servant. The magistrate must immediately, or at a time to which he may, for good cause, adjourn the matter, proceed to hear the allegations and proofs of the parties, and if the complaint be well founded, must, by a certificate under his hands, with his name of office, discharge the apprentice or servant from the service of his master; or if not, he must, by a similar certificate, dismiss the complaint. § 933. Preceding sections, not applicable to apprentice xrith. irhom money is received or agreed for. The preceding sections of this title do not extend to an apprentice, whose master has received, or entitled to receive, a sum of money with him, as a compensation for his instruction. § 934. Complaint against master in such case, and direction thereon. Where money is paid or agreed to be paid, on binding out a clerk or apprentice, he may make the complaint mentioned in section 931, and the magistrate to whom it is made must examine it, as provided in section 932, and on such examination, may make such order and direction between the parties, as the justice of the case may require. § 935. If complaint not compromised, the master to be held to appear, etc. If, in the case mentioned in the last section, the complaint cannot be compromised, the magistrate must take a written undertaking from the master, for his appearance at the next term of the county court of the county, in a sum, with sureties approved by him. SPECIAL PKOCEEDINGS OF A CRIMIls^AL NATUEE. 677 $ 936. Proceedings thereon and order of the court. Upon hearing the parties, the court may, by an order entered upon the minutes, direct that the clerk or apprentice be discharged from service, and that the money paid or agreed for in binding him out, be refunded, if paid, to the person who advanced it, or his personal representatives, or if not paid, that it be discharged, and that any security given therefor be delivered up or canceled. § 937. Complaint by master against clerk or apprentice, xrhere money is paid or agreed for; clerk or apprentice irhen held to appear, etc. The master of a clerk or apprentice, where money is paid or agreed for on binding him out, may make the complaint mentioned in section 927, and the magistrate to whom it is made must proceed thereupon, as provided in section 927 to 930, both in- clusive, and may discharge the complaint, or if in his opinion it be well founded, may take a written undertaking, in a sum and with sureties to be approved by him, for the appearance of the clerk or apprentice at the next term of the county court of the bounty. § 938. Proceedings thereon and order of the conrt. Upon hearing the parties, the court may proceed as provided in section 936, and may punish the clerk or apprentice by fine or imprisonment, or both, as for a misdemeanor. §§ 939 and 940. [Kepealed, 1896, chap. 272.] TITLE X. OP CRIMINAL STATISTICS. Sectiok 941. Statement of district attorney. 942. Statement of clerk of court of special sessions in New York. 943. Statement to secretary of state by county clerk. 944. Penalty for neglect. 944a. Secretary of state to file statement and furnish copies. 945. Secretary of state to report to legislature. 946. Secretary of state to furnish forms. § 941. [Am'd, 1901.] Statement of district attorney. Within ten days after the adjournment o'f any criminal court of record in this state, the district attorney of the county in which the court shall be held, shall furnish to the clerk of the county a certified statement containing the names of all persons con- victed of crime in said court; the crime for which convicted; whether the conviction was upon a trial or upon a plea of guilty and whether sentence was suspended or the defendant placed on probation; the cases in which counsel were assigned by the court to defend the defendant; the sex, age, nativity, residence »and occupation of the defend- ant; whether married or single; the degree of education and religious instruction; whether parents are living or dead; whether temperate or intemperate, and whether before convicted or not of any crime, and any other information regarding them as may seem to 'him expedient. If necessary in order to obtain information of these facts, the defendant may be interrogated upon oath in court by the district attorney before judgment is pronounced. He shall also furnish to the clerk of the court a certified statement containing the names of all probation officers appointed by the court, with their address and date of appointment. 678 CODE OF CRIMHSTAL PKOCEDURE. § 942. [Am'd, 1901.] Statement of clerh of court of special sessions in New York. The clerk or deputy clerk of the court of special sessions in the city and county of New York shall on or before the first day of February, eighteen hundred and ninety- five, and quarterly thereafter, transmit to the secretary of state a tabulated and certified statement, in the form prescribed by the secretary of state, containing the name of every person convicted of a crime, of every person against whom the sentence was suspended, and of every person placed on probation in such court, after October thirty-first, eighteen hundred and ninety-four, and since the date of the closing of each preceding quarterly report; a description of the offense of which such person was convicted; whether the conviction was upon a trial or upon a plea of guilty; and the date of the conviction; and also a certified statement containing the names of all probation officers appointed by the court, with their address and date of appointment. The police clerks of the city magistrates of the city of New York, shall on or before February first, nineteen hundred and one, and annually thereafter, transmit to the' secretary of state, a tabulated statement made from their records, showing the number of males and females convicted of crime during each month in the preceding quarter in the several courts of such city magistrates; the number convicted of each oflfense, the number sentenced, the number fined, the number of those against whom sentence was suspended, and the number placed on probation; and shall also furnish a certified statement containing the names of all probation officers appointed by the magistrates, with their address and date of appointment. Such statements shall be in the form prescribed by the secretary of state. g 943. [Am'd, 1901.] Statements to secretary of state by county clerk. On or before the first day of February, eighteen hundred and ninety-five, and quar- terly thereafter, the clerk of each county shall transmit to the secretary of state a tabulated and certified statement, in the form prescribed by the secretary of state, of all the matters contained in the statements filed with such clerks by the district attor- ney of such county after October thirty-first, eighteen hundred and ninety-four; and of the name of each person shown to be convicted by a court of special sessions by the certificate of conviction filed with him by magistrates holding courts of special ses- sions after October thirty-first, eighteen hundred and ninety-four, and since the date of the closing of each last preceding quarterly report made after October thirty-first, eighteen hundred and ninety-four, and since the date of the closing of each last preced- ing quarterly report made after October thirty-first, eighteen hundred and ninety-four, .and showing the offense for which each person was so convicted; whether the conviction was upon a trial or upon a plea of guilty; the sentence imposed whether the sentence was suspended, and whether the defendant was placed on probation. Said certified statement shall also contain the names of all probation officers appointed by said courts of special sessions, with their address and the date of their appointment. § 944. Id. For every neglect of any justice, magistrate or clerk to comply with the require- ments of this title, he shall forfeit the sum of fifty dollars, to be recovered by a civil action in the name of the people of the state. § 944-a. [Added, 1909.] Secretary of state to file statements and furnish copies. The secretary of state shall file such statement furnished by the clerk of each county, and whenever required, by the attorney-general or district attorney of any county, shall furnish an exemplification of any such statement or of a part thereof, under the seal of his office, without charging any fees therefor; which exemplification shall SPECIAL PKOCEEDINGS OF A CEIMINAL NATURE. 679 be sufficient evidence on the trial of any person for a aecond or subsequent offense, of the conviction stated in such statement. But neither such statement, nor the exempli- fication thereof, shall in any other case, be evidence of such conviction. § 945. Secretary of state to report to legislature. The secretary of state shall, on or before March first, in each year, cause all the information and statistics contained in the foregoing certified statements made to him by the several county clerks, to be compiled and tabulated in convenient form for reference, and so arranged that each fact shall appear under its appropriate column and heading, and subdivided according to the crime or offense charged, and transmit the same to the legislature. § 946. [Am'd, 1901.] Secretary of state to furnish forms. The secretary of state shall cause this title to be published vpith forms and instruc- tions for the execution of the duties therein prescribed, and copies thereof to be fur- nished annually to each county clerk. The forms furnished by the secretary of state as herein provided, shall contain in tabluated form, the nature of every offense upon which a conviction was had, the court before which the defendant was convicted, the character of the sentence imposed, the cases where defendant had been previously con- victed, the cases where sentence was suspended, the cases where the defendant was placed upon probation, and the cases where the probation was revoked, together with the age, sex, nativity and residence of the defendant. And a sufficient number of copies of this title, and of such instructions, and of the forms to be used by the dis- trict attorney, or clerk or deputy clerk of the court of special sessions of the city and county of New York, shall also be furnished to each clerk to enable him to furnish at least one copy thereof annually to the district attorney, and the clerk of the court of special sessions of the city and county of New York and the county clerk shall dis- tribute the copies of this title and of such forms and instructions accordingly, and when said county clerk is not a salaried officer his disbursements and compensation for his services under this act shall be a county charge. The expense of the secretary of state in publishing this title and distributing copies thereof, and of such forms and instructions as are herein required, shall be paid by the treasurer of the state, upon the warrant of the comptroller, from moneys in the treasury not otherwise appropriated. TITLE XI. MISCELLANEOUS PBOVTSIONS, KESPECTING SPECIAL PROCEEDINGS OP A CBIMINAL NATUBB. Section 950. Parties to a special proceeding, how designated. 951. Provisions respecting entitling affidavits, applicable. 952. Courts and magistrates to issue subpoenas, and punish disobedience of witnesses. § 950. Parties to a special proceeding, hoir designated. The parties prosecuting a special proceeding of a criminal nature, is designated in this code as the complainant, and the adverse party as the defendant. § 951. Provisions respecting, entitling affidavits, applioable. The provisions of this code, in respect to entitling affidavits in a, criminal action, are applicable to special proceedings of a criminal nature. (680 CODE OF CEIMINAL PKOCEDUKE. § 952. Courts and magistrates to issue subpoenas, and punish disobedience of iiritnesses. All courts and magistrates having before them special proceedings of a criminal nature, may issue subpoenas for witnesses, and punish their disobedience in the same manner as in criminal actions. TITLE XII. VIOLATIONS OF THE PROYISIONS OF THE PENAL LAW RELATING TO THE MANUFAOTtTEE OB SALE OF SPUEIOtrS SILVEEWAEE OE GOLDWAEE. [Added by L. 19i09, Ch. 66, § 3. In effect Feb. 13, 1909.] Section 952a. Issue of summons. 952b. Service of summons. 952c. Investigation of the charge. 952d. Discharge of defendant. 952e. Bond of manufacturer or dealer. 952f. Action on the bond. 952g. Eecovery on bond a bar to subsequent criminal prosecution § 952-a. [Added, 1909.] Issue of summons. Upon any information against a person, firm, corporation or association for viola- tion of sections four hundred and twenty-two, four hundred and twenty-three, four and twenty-four, four hundred and twenty-five, four hundred and twenty-six, four hundred and twenty-seven, four hundred and twenty-eight, four hundred and twenty- nine and four hundred and thirty-one of the penal law, the magistrate must issue a summons in substantially the form prescribed in section six hundred and seventy-six, signed by him, with his name of ofiice, requiring the accused to appear before him at a specified time and plaec to answer the charge; the time to be not more than twenty days after the issuing of the summons. § 952-b. [Added, 1909.] Service of summons. The summons must be served by delivering a copy thereof and showing the original to the defendant; or, if the defendant be a corporation, by delivering a copy thereof and showing the original to the president or other head' of the corporation ; or, to the secretary, cashier, or managing agent thereof. § 952-c. [Added, 1909.] Investigation of the charge. At the time appointed the magistrate must proceed to investigate the charge, in the manner provided by law for the investigation of a charge against any natural person or corporation brought before him, so far as those proceedings are applicable, except as provided by sections nine hundred and fifty-two-d, and nine hundred and fifty-two-e, nine hundred and flfty-two-f, and nine hundred and fifty-two-g. § 952-d. [Added, 1909.] Discharge of defendant. If it shall appear to the magistrate upon the investigation that the defendant has filed a bond as provided in section nine hundred and fifty-two-e, and that the article of merchandise concerning which the charge is brought was not made or altered in any way by the defendant, and that it was acquired by him in good faith as an article of the standard of purity prescribed in sections four hundred and twenty-two, four hun- dred and twenty-three, four hundred and twenty-four, four hundred and twenty-five, four hundred and twenty-six, four hundred and twenty-seven, four hundred and twenty-eight, four hundred and twenty-nine and four hundred and thirty-one of the SPECIAL PEOCEEDINGS OF A CKIMINAL XATUEE. 681 penal law, and without knowledge or information on the part of the defendants to the contrary, the charge must be dismissed and the defendant discharged, provided the person from whom the defendant acquired the article is within the jurisdiction of the court or has likewise filed a similar bond, which bond is in full force and effect at the time of the sale by said defendant, and provided also the defendant furnish to the magistrate an affidavit stating the name, residence and place of business of the person from whom the article was acquired by the defendant, and the circumstances of its acquisition, together with an undertaking with two sufficient sureties, in a sum to be fixed by the magistrate, conditioned for the appearance of the defendant to testify in any prosecution, action, or proceeding against the person from whom the article was acquired, or in any action or proceeding upon the bond given by such person. § 952-e. [Added, 1909.] Bond of manufacturer or dealer. Any manufacturer of silverware or goldware, or any wholesale or retail dealer in silverware or goldware, upon payment of a fee of fifteen dollars, may file in the office of the secretary of state a bond, executed by himself as principal, and by a fidelity or surety company authorized by the laws of this state to transact business, or by him- self as principal and two sufficient sureties, both of whom must be freeholders, and at least one of whom must be a resident of this state and a, freeholder therein, which bond shall be approved by a justice of the supreme court, and be subject to the pro- vision of chapter eight, title six, article fifth, of the code of civil procedure, so far as they are applicable, in the penal sum of five thousand dollars, conditioned for faith- ful compliance with all the provisions of sections four hundred and twenty-two, four hundred and twenty-three, four hundred and twenty-four, four hundred and twenty- five, four hundred and twenty-six, four hundred and twenty-seven, four hundred and twenty-eight, four hundred and twenty-nine and four hundred and thirty-one of the penal law. § 952-f. [Added, 1909.] Action on the bond. Upon satisfactory proof by affidavit to the attorney-general, of a. violation of any provisions of sections four hundred and twenty-two, four hundred and twenty-three, four hundred and twenty-four, four hundred and twenty-five, four hundred and twenty-six, four hundred and twenty-seven, four hundred and twenty-eight, four hun- dred and twenty-nine and four hundred and thirty-one of the penal law, it shall be his duty to declare the bond provided for in the preceding section forfeited, and to forth- with proceed on behalf of the people of the state of New York to recover, as liquidated damages, the whole of the sum specified therein from the parties thereto, against whom judgment for the entire amount must be rendered upon proof duly made of a violation by the principal of any provision of the said sections of the penal law, unless the principal shall already have been convicted in a criminal prosecution for the same violation. If, however, at any time before the recovery of judgment upon such for- feiture, the principal shall appear before the magistrate who issued such warrant or summons, so that the charge against him may be duly examined and proceeded with criminally, any proceedings before the attorney-general shall be discontinued, and if the bond shall have been meanwhile forfeited, such forfeiture shall be rescinded by the attorney-general, and any subsequent action thereon thereby rendered null and inoperative. § 952-g. [Added, 1909.] Recovery on bond a bar to subsequent criminal prosecution. Proof of the actual recovery by the people of the state of the whole amount named in a, bond given pursuant to the provisions of section nine hundred and fifty-two-e, may be pleaded in bar of any subsequent criminal prosecution for the same violation for which the recovery upon the bond was had. 682 CODE OF CKIMmAL PEOCEDUEE. GENERAL PROVISIONS AND DEFINITIONS APPLICABLE TO THIS CODE. Section 953. Abatement of nuisance. 954. No part of this code retroactive, unless expressly so declared. 958. Definition of " signature." 959. Definition of " magistrate " 960. Definition of " peace officer.'' 9'61. Definition of " county court." 9S2. To what actions and proceedings this code applies. 963. When code to take effect. § 953. Abatement of nuisance. Where a person is convicted of keeping or maintaining a public nuisance, and sen- tenced to punishment, the court may, in its judgment, in addition to or in place of other punishment, direct that the nuisance be abated, and issue an order to the sheriff of the proper county to execute the judgment as therein directed. § 954. No part of this code retroactive, unless expressly so declared. No part of this code is retroactive, unless expressly so declared. §§ 955-957. [Repealed.] § 958. Definition of " signature." The term "signature" includes a mark, when the person cannot write; his name being written near it, and the mark being witnessed by a person who writes his own name as a, witness, except to an affidavit or deposition, or a paper executed before a judicial officer; in which case the attestation of the officer is sufficient. § 959. Definition of "magistrate." Unless when otherwise provided the term " magistrate " signifies any one of the magistrates mentioned in section 147. § 960. Definition of " peace officer." Unless when otherwise provided, the term " peace officer " signifies any one of the officers mentioned in section 154. § 961. Definition of " county court." The term "county court" includes the "court of general sessions in the city and county of New York," whenever such inclusion does not conflict with other provisions of this code. § 962. To what actions and proceedings this code applies. This code applies to criminal actions, and to all other proceedings in criminal cases which are herein provided for, from the time when it takes effect; but all such actions and proceedings, theretofore commenced, must be conducted in tlie same manner as if this code had not been passed; except that if any local statute confined, by its terms, to a town or villege or to a county or city other than the city and county of New York, any proceeding is prescribed, in addition to those prescribed by this code and not inconsistent with it, the same shall remain unaffected by it. § 963. When Code to take effect. This code shall take effect on the first day of September, 1881. When construed in connection with other statutes, it must be deemed to have been enacted on the fourth day of January, 1881, so that any statute enacted after that day is to have the same effect as if it had been enacted after this code. FORMS IN CRIMINAL ACTIONS AND PROCEEDINGS AND OF INFORMATIONS. COMPLAINTS AND PLEADINGS IN COURTS OF SPECIAL SESSIONS POLICE COURTS AND BEFORE MAGISTRATES FORMS. No. 1. Complaint on application for surety of the peace. 2. Deposition of witnesses on foregoing application. 3. Warrant of arrest. 4. Undertaking to keep the peace. 5. Warrant of commitment when prisoner fails to give surety. 6. Warrant for crime threatened in presence of magistrate. 7. Warrant to release a prisoner committed, he having subsequently given the security required. 8 Discharge for insufficient evidence. 9. General form of warrant of arrest. 10. Affidavit of handwriting of justice. 11. Indorsement of warrant when defendant is to be arrested in another county. 12. Return of constable to warrant of arrest. 13. Return of constable where all of defendants cannot be found. 14. Return of warrant where magistrate who issued warrant is absent. 15. Warrant after prisoner has escaped. 16. Id., for fugitive from another state. 17. Commitment of fugitive. 18. Notice of commitment of a fugitive from justice to the district attorney. 19. Commitment for examination. 20. Record informing accused of his right to make statement. 21 Statement. 22. Authentication of statement. 23. Note of waiver. 24. Testimony, how taken and authenticated. 25. Indorsement for the discharge of a, prisoner in court. 26. Order of defendant's discharge where he is in jail. 27. Order of commitment. 28. Order for commitment without bail. 29. Certificate of bail. 30. Indorsement on the depositions and statement to be made by the justice in case the prisoner is discharged. 31. Id. ; when held to answer. 32. Undertaking for appearance before magistrate issuing warrant given in another county. 33. Undertaking on adjournment of examination. 35. Undertaking for the appearance of witnesses. 36. Id. 37. Undertaking of disorderly person, under subdivision 1 and 2 of § 899. 38. In other cases. 39. Undertaking on being held to answer. 40. Undertaking upon re-commitment. 41. Undertaking to appear at special sessions. 42. Undertaking for support of bastard. 43. Id.; under subdivision 2 of § 844. 44. Undertaking on adjournment in bastardy case. 45. Undertaking of parent, etc. 685 686 CODE OF CEIMINAL PKOCEDUEE. No. 4d. Information for misdemeanor. 4-7. Information of an affray. 48. Information of an assault and battery. ^ 49. Information in relating to dog fighting. 50. Information against keeper of bawdy house. 51. Information for bigamy. 52. Information for assaulting an officer. 53. Information for perjury. 54. Information for false pretence. 55. Information for arson, first and second degree. 56. Information for arson, second and third degree. 57. Information for larceny. 58. Information for burglary, first degi-ee, and larceny. 59. Information for refusing to aid an officer. 60. Information for interfering with an officer. 61. Information for robbery in the first degree. 62. Information for burglary and larceny. 63. Information for seduction. 64. Information for forgery. 65. Information for assault with sharp weapon. 66. Information for rape. 67. Information for assault with intent to kill. 68. Information against child begging, etc. 69. Information for search warrant. 70. Information for maiming. 71. Information for receiving stolen goods. 72. Information for larceny. 73. Information for libel. 74. Information against disorderly person under § 899, subdivision 1. 75. Information against disorderly person under § 899, subdivision 2, 76. Information against disorderly person. 77. Information against disorderly person. 78. Information against disorderly person. 79. Information against disorderly person. 80. Information against vagrant. 81. Information for disorderly child. 82. Information against gambling place. 83. Information for selling mortgaged chattels. 84. Information for public intoxication. 85. Information for malicious mischief. 86. Affidavit to obtain search warrant. 88. Affidavit to inventory on search warrant. 87. Search warrant. 89. Return to search warrant. 90. Warrant for disorderly person. 91. Return to warrant. 92. Order that arrest may be made on Sunday. 93. Permission to execute warrant in another county. 94. Commitment for intoxication. 95. Warrant for misdemeanor. 96. Warrant for refusing to obey subpoena. 97. Warrant against vagrant. 98. Warrant to commit a vagrant. FOEMS. 687 No. 99. Warrant of commitmeiit of disorderly person. 100. Warrant of commitment for failure to give security to support wife and children. 101. Commitment on warrant for felony. 102. Commitment. 103. Statement and questions to be put by justice to the defendant. 104. Order granting bail. 105. Older for discharge on giving bail. 106. Subpoena. 107. Subpoena duces tecum. 108. Return of service of subpoena. 109. Satisfaction for misdemeanor. 110. Order compromising misdemeanor. 111. Order to discharge defendant from custody. 112. Summons to corporation. 113. Notice to district attorney. 114. Affidavit for removal. 115. Certificate of county judge. 116. Venire. 117. Return of venire. 118. Order that prosecutor pay the costs. 119. Judgment against prosecutor for costs. 120. Certificate of conviction. 121. Certified copy of certificate. 122. Affidavit on appeal. 123. Undertaking on appeal. 126. Application by overseer of the poor for an examination as to charge of bastardy. 127. Examination of mother of bastard before its birth. 128. Warrant for arrest of putative father. 129. Subpoena in bastardy case. 130. Order of filiation. 131. Warrant of commitment of father of bastard. 132. Warrant for commitment of mother refusing to disclose father. 133. Indorsement to be made on warrant when executed in another county. 134. Information against vagrant child. 135. Summons to parent of vagrant child. Sections Refeb to the Code of Criminal Peocedtjeb. No. 1. Complaint on Application for Surety of the Peace. County of ss.: A. B., of the town of , county of , and state of New York, being duly sworn, says that C. D. of the same town, has threatened to commit an offence against the person of deponent, to wit, to shoot, and kill deponent (here state all the facts), and that this deponent has just cause to fear that the said C. D. will carry the above threats into effect (if against property say against the property in- stead of against the person). ,^ Deponent therefore prays that legal process issue, and that surety of the peace against the said C. D. be granted to deponent; that this complaint is made in good faith and solely because of the above threats and that the deponent has reason to 688 CODE OF CEIMINAL PKOCEDUEE. believe said C. D. will carry his said threats into effect and do bodily harm and injury to deponent. Whebetobe, Deponent prays that a warrant may issue for the arrest of the said C. D. and that he be dealt with according to law. A. B. Subscribed and sworn to before me ) this .... day of , 19 . . . j C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 84.] No. Z. Deposition of Witnesses, on the Foregoing Application. County of , ss.: L. M. and N. 0., witnesses produced before me by A. B. upon his complaint against C. D., this day verified before me, being duly sworn each for himself says (here set forth all the facts within the knowledge of the witnesses bearing upon the complaint.) L. M. N. 0. Subscribed and sworn to before me 1 this .... day of , 19 . . . ^ C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 85.] No. 3. ^Var^ant of Arrest. County of , ss.: In the Name of the People of the State of New York: To any peace officer of the county of : Whebeas, a. B., of the town of , in the said county, did, on the day of , 19. ., make a verified complaint in writing before me, that C. D., of the same town, did threaten to commit the crime of , against the person of him, the said A. B., and said A. B., alleging that there is just reason to fear the commission of said threatened crime, and praying that a warrant issue for the arrest of said C. D., and that he be dealt with according to law, and after examining L. M. and N. 0., on oath touching the said complaint and reducing such examination to writing and the same having been duly subscribed, and it appearing therefrom that there is just reason and cause to fear the commission of the crime threatened by said C. D. and that he will carry said threats into eflfect, These are, therefore, to command you forthwith to arrest the said C. D. and bring him before me at my office in the town of , in said county, to be dealt with according to law. Given under my hand at the town of , in said county, this day of , 19 . . . 0. W. H., [Code of Criminal Procedure, § 86.] Justice of the Peace. No. 4. Undertaking to Keep the Peace. State op New Yoek, 1 County of C * ' " Whereas, an information was laid before C. W. H., justice of the peace of the town of , in said county on the day of , 19 . . , that C. D. FORMS. 689 had threatened to shoot and kill A. B., and said justice having examined on oath the complainant and witnesses produced by him and reduced such examination to writing and caused the same to be duly subscribed ; and Wheeeas, a warrant was thereupon issued for the arrest of said C. D., and it appear- ing by the evidence taken in the proceedings before said justice that there is just reason to fear the commission of the threatened crime by the said C. D., and said C. D. having been required by said justice to give security in the sum of dollars to keep the peace pursuant to section 89 of the Code of Criminal Procedure, Now, therefore, we, X. Y. and M. N., both of the town of , said county, do hereby severally acknowledge ourselves to be indebted to the people of the state of New York in the sum of dollars, to be well and truly paid, if default shall be made in the following conditions: The conditions of this obligation are such, that if the said C. D. shall personally appear at the next county court to be held in and for the said county at the court house in the village of , and abide its order, and shall in the meantime keep the peace towards the people of the state of New York, and particularly towards A. B., then this obligation to be void, otherwise to remain in full force. [Date] [Signatures.] Add acknowledgment and affidavit of sureties as in Form No. 32. [Code of Criminal Procedure, § 89.] No. 5. Warrant of Commitmeiit 'When Prisoner Fails to Give Surety. State of New Yobk, ) County of ( In the Name of the People of the State of New York: To any constable of the county of , and to the keeper of the common jail of the county of : Whereas, C. D., of the town of in said county was charged upon an information duly laid before me, the undersigned justice of the peace of the town of , with having threatened to shoot and kill A. B., and a warrant having been issued for the arrest of the said C. D., and it appearing by the evidence In the proceedings thereupon had before me, said justice, that there was just reason to fear the commission of such threatened crime by the said C. D., and said C. D. having been required by me to enter into an undertaking with sufficient sureties in the sum of dollars for his appearance in person at the next County Court to be held in and for said county for the trial of indictments, and to abide its order, and in the meantime to keep the peace towards the people of the state of New York, and particularly towards A. B., the complainant; and Whereas, said C. D. has neglected and omitted to give the undertaking so required of him. These are therefore to command you, the said constable, forthwith to convey and deliver said C. D. into the custody of the keeper of the common jail of said county; and you, the said keeper, are hereby required to receive the said C. D. into your custody in said jail and him there safely keep and detain until he shall give the security required as aforesaid, or be otherwise discharged according to law. Given under my hand at the said town of , this day of , 19-- C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 90.] 44 690 CODE OF CEIMIl^AL PKOCEDUKE. No. 6. Warrant for Crime Threatened in tbe Presence of a Magistrate. State of New Yobk, ' County of Town of In the Name of the People of the State of New York: To any constalle of the county of , and to the keeper of the common jail of the county of : Whereas, C. D. of the town of in said county on the day of , 19. ., at the town hall in the village of , in said town and county, in the presence of the undersigned justice of the peace, threatened to commit the crime of against the person of A. B., and there appearing to be just reason to fear the commission of the crime threatened, and the said C. D. having then and there been required by me, without other proof, to enter into an undertaking in the sum of dollars with sufficient sureties to abide the order of the next County Court to be held in and for said county for the trial of indictments, and in the meantime to keep the peace towards the people of the State of New York and especially towards A. B., and the said C. D. having refused to enter into said undertaking so required of him. These are therefore to command you, the said constable, forthwith to convey and deliver the said C. D. into the custody of the keeper of the common jail of said county; and you, the said keeper, are hereby required to receive the said C. D. into your custody in said jail and him safely keep and detain there until he shall give such undertaking or be discharged according to law. Given under my hand at the said of this day of , 19... C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 93.] No. 7. Warrant to Release a Prisoner Committed, He Having Subsequently Given the Security Required. County op ss.: In the Name of the People of the State of New York: To the keeper of the common jail of said county: This is to command you fortliwith to release from your custody the body of C. D., if he is not detained by you for any cause other than that specified in the warrant of commitment by C. W. H., justice of the peace of the town of , said county, on the day of , 19 . . , for not finding sureties of the peace upon the complaint of A. B., he, the said C. D., having subsequent to Jiis said commit- ment found sureties before us; and let this be your sufficient warrant for your so doing. Given under our hands at the town of , in said county, on the day of , 19. . . C. W. H., Justice of the Peace. J. H., Justice of the Peace. [Code of Criminal Procedure, § 91.] FOEMS. 691 No. 8. Discharge for Insufficient Evidence. COUNTT OP , ss.: It appearing to me, from all the evidence and proofs submitted on the examination herein, that there is not sufficient reason or cause to fear the commission of the crime in the complaint herein stated to have been threatened, I do hereby order that the said C. D. be discharged. Dated this day of , 19 . . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 88.] No. 9. General Form o£ Warrant of Arrest. COTTNTT OP , SS.: In the Name of the People of the State of New York: To any peace officer in the county of : Information on oath having been laid before me this day that the crime of has been committed in the town of said county, and accusing C. D. thereof. You are, therefore, commanded forthwith to arrest the above named C. D. and bring him before me, at my office in the town of , said county, or in case of my absence or inability to act, before the nearest or most accessible magistrate in this county. Dated at this day of , 19 . . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 151.] No. 10. Affidavit of Handwriting of Justice. County of , ss.: M. N., being duly sworn, says that he is acquainted with C. W. H., the justice who issued the annexed warrant, that he knows the handwriting of said justice, and that the signature attached thereto is the genuine signature of said C. W. H., and that the said warrant was issued and signed by said C. W. H. in his presence. X. Y. Z. Subscribed and sworn to before me 1 this .... day of , 19 . . . f J. H., Justice of the Peace. [Code of Criminal Procedure, § 157.] No. 11. Indorsement of Warrant When Defendant Is to Be Arrested in Another County. County op , sa.: Sufficient proof upon oath having been made before me, J. H., a justice of the peace, in said county, that the name of C. W. H., attached to the warrant of arrest, is the 692 CODE OF CKIMINAL PEOCEBUEE. true and genuine signature of C. W. H., the justice of the peace named in the said warrant, I do hereby authorize and direct any officer to whom the said warrant is directed to execute the same within the said county of Dated at , this day of 19 . . . J. H., Justice of the Peace. [Code of Criminal Procedure, § 157.] No. 12. Return of Constable to Warrant of Arrest. I have arrested the defendant named herein, and have him here in my custody and possession as commanded herein. Dated this day of , 19 . . G. B., Constable. No. 13. Return of Constable Where All of Defendants Cannot Be Found. I have arrested and have now in my custody, J. S. and W. M., two of the defendants named herein, but I cannot find K. C, one of the defendants named herein. Dated this day of , 19. . . G. B., Constable. No. 14. Return of Constable Where Magistrate 'Who Issued VTarrant Is Absent. As commanded herein, I have arrested R. C, the defendant named herein, and I hereby make return that immediately after making the arrest I brought the said defendant R. C. to the office of C. W. H., the magistrate who issued the warrant, but that the said magistrate was absent therefrom. Dated this day of , 19 . . . G. B., Constable. [Code of Criminal Procedure, §§ 164, 166.] No. 15. Vrarrant After Prisoner Has Escaped. State of New Yokk, ) County of f**"' In the Name of the People of the State of New York: To any peace officer in the county of ; An information upon oath having been laid before me this day, by A. B., a constable of said county, to whom a warrant had heretofore been issued for the arrest of C. D., and that he had arrested the said C. D., by virtue thereof, and that thereafter, at the town of , in the county of and on the day of , 19 ■•, the said C. D. escaped from the custody of said A. B. Now, therefore, you are again commanded to forthwith arrest the said C. D. and bring him before me at my office in the town of , in said county, to be dealt with according to law, or in case of my absence or inability to act, before the nearest or most accessible magistrate in this county. Given under my hand at the town of , this day of 1^- • • C. W. H., Justice of the Peace. rOKMS. 693 No. 16. Id.; For Fugitive from Another State. State op New York, 1 County of C "' In the Name of the People of the State of New York: To any peace officer in the county of ; An information having been this day duly made upon oath before me by A. B., that C. D. had committed the crime of in the state of Kansas, on the day of , 19 . . , and is now in the county of , this state, and a fugitive from justice; you are therefore hereby commanded forthwith to arrest the above named C. D. and bring him before me at my office in the town of , in said county to be dealt with according to law, or in case of my absence or inability to act, before the nearest or most accessible magistrate in this county. Given under my hand at the town of this day of , 19... C. W. H., Justice of the Peace. [Code of Criminal Procedure, §§ 827, 828.] No. 17. Commitmemt of FngitiTe. COTJNTT OF , SS.: C. D., having been brought before me under the annexed warrant, and from an examination herein had by me, it appears that the said C. D. is guilty of the crime charged, and is a fugitive from justice as in said warrant set forth; I do therefore commit the said C. D. to the keeper of the common jail of the county of , for the space of days ( not to exceed thirty days ) , or until he be discharged by due course of law. Given under my hand, at the town of , this day of , 19 . . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, §§ 829, 830.] No. IS. Notice of Commitmeiit of a Fugitive from Justice to the District Attorney. To A. M., Esq., district attorney of the county of ; Sib. — Take notice, that I have this day committed C. D., a fugitive from justice from the state of Kansas, charged with the crime of , committed in the said state of Kansas, to the keeper of the common jail of the county of , to await the action of the authorities herein. Dated this day of , 19. . . Yours, &c., C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 832.] 694 CODE OF CKIMIls^AL PEOCEDUEE. No. 19, Commitment for Examination. State or New Yobk, New Yobk, ) County of ( In the Name of the People of the State of New York: To the sheriff of the county, of : A. B.J having been brought before me upon the charge of having (stating briefly the nature of the crime) is committed for examination to the sheriff of the county of Dated at this day of , 19 . . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 193.] No. 20. Record Informing Accnged of His Right to Make a Statement. When tlie examination of the witnesses for the people had been closed and before any other proceedings or step herein had been taken, the defendant was informed of his right to make a statement in relation to the charge against him, and the substance of section 196 of the Code of Criminal Procedure was stated to him, and after being so informed he expressly waived his right to make the same. C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 197.] No. 21. Statement. Question. What is your name and age ? Answer Question. Where were you born ? Answer Question. Where do you reside and how long have you resided there? Answer Question. What is your business or profession? Answer Question. Give any explanation you may think proper of the circumstances appearing in the testimony against you, and state any facts which you think will tend to your exculpation. Answer Dated this day of , 19 . . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 198.] No. 22. Antbentication of Statement. JUSTICE'S COURT. ] State of New York, Us.; County of j I, the undersigned, hereby certify that when the examination of witnesses for the people had been closed, and before any other procedings herein had been taken, I •informed the said defendant that he had a right to make a statement in relation to the charges against him, and the nature of the charge was stated to him; that the state- ment was designed to enable him, if he saw fit, to answer the charge and to explain the facts alleged against him; that he was at liberty to waive making a statement, and that his waiver would not be used against him on the trial; and after he was so informed he made the following statement (here insert questions and answers as in FORMS. 695 the preceding form) : That I requested said defendant to sign said statement at the end thereof, which he refused to do, stating as his reason for such refusal the following (here state the reason given for refusal to sign) : Dated this day of , Id. . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 200.] No. 23. Note of IVaiver. After the above-named defendant had made the foregoing statement (or after he waived the making thereof, as the case may be) the following witnesses were produced, sworn and examined on behalf of the defendant: (Here state the proceedings had.) Dated this day of , 19 . . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 201.] No. 24. Testimony, How Taken, and Authenticated. Before C. W. H., justice of the peace, county of , on the . , day of ,19... J. K., being duly sworn, deposes and says : Question. What is your name and age ? Answer Question. Where do you reside ? Answer Question. What is your business or profession ? Answer (Here insert the evidence given.) I, C. W. H., a justice of the peace, of the town of , said county, do hereby certify that the above is the testimony given by J. K., a witness sworn on the part of the defendant, who stated his name to be J. K., his age to be , his profession or business to be Dated this day of , 19 . . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 204.] No. 25. Indorsement for the Discharge of a Prisoner in Court. Having duly examined witnesses and considered the evidence against the defendant, C. D., and there being no sufficient cause to believe him guilty of the offence charged, I hereby order him to be discharged. Dated this day of , 19. . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 207.] 696 CODE OF CRIMINAL PROCEDUEE. No. 26. Order of Defendant's Discharge Where He Is in Jail. County of , ss.: To the keeper of the common jail of the county of ; You are hereby required, upon receiving this, to release from your custody C. D., who was committed to jail by me, C. W. H., justice of the peace in the county of , charged with the crime of (here set forth the crime for which he was committed ) . Dated this day of , 19 . . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 207.] No. 27. Order of Commitinent. It appearing to me by the within depositions and statement that the crime therein mentioned has been committed, and that there is sufficient cause to believe the within named C. D. guilty thereof, I order that he be held to answer the same.* Dated this day of , 19 . . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 208.] No. 28. Order for Commitment Without Bail. It appearing to me by the within depositions and statement that the crime therein mentioned has been committed, and that there is sufficient cause to believe the within named C. D. guilty thereof, I order that he be held to answer the same and that he be committed to the sheriff of the county of Dated this day of , 19 . . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 209.] No. 29. Certificate of Bail. [As in Form No. 27 to the *, then add] : " and I have admitted him to bail to answer by the undertaking hereto annexed." Dated this day of , 19 . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § 210.] No. 30. Indorsement on the Depositions and Statement to Be Made by the Justice in Case the Prisoner Is Discharged. There being no sufficient cause to believe the within named C. D. guilty of the offence within mentioned, I order him to be discharged. Dated this day of , 19 . . C. W. H., Justice of the Peace. [Code of Criminal Procedure, § aOT.] FOKMS. 697 No. 31. Id.; When Held to Answer. It appearing to me by the within depositions and statement (if any) that the crime therein mentioned (or any other wime according to the fact, stating generally the nature thereof) has been committed, and that there is sufficient cause to believe the within named C. D. guilty thereof, I order that he be held to answer the same, and that he be admitted to bail in the sum of dollars, and be committed to the sheriff of the county of , until he gives such bail. Dated this day of , 19 . . . C. W. H., Justice of the Peace. (If bail be taken leave out the last clause and add in place thereof, "and I have admitted him to bail to answer, by the undertaking hereto annexed." § 210.) [Code of Criminal Procedure, §§ 208, 212.] No. 32. Undertaking for Appearance Before Magistrate Issuing Warrant Given in Another County. COUNTT OF , ss.: We, M. N., of the town of , in the county of , by occupation a , the defendant, and E. 0., of the town of , in the county of , by occupation a , and X. Y., of the town of , county of , by occupation a sureties, do hereby jointly and severally acknowledge ourselves to be indebted to the people of the state of New York in the sum of dollars, to be well and truly paid if default shall be made in the conditions following: The condition of this obligation is that the above-named M. N., having been duly arrested in the county of Albany, and having required the officer making the arrest to take him before a magistrate in the said county of Albany, he has this day been duly brought before me, one of the justices of the peace of the county of Albany. Now, if the said M. N. shall personally appear before the said C. W. H., justice of the peace of the town of , in the county of Schoharie, who issued the warrant herein, at his office on the day of , 19 . . , at o'clock in the forenoon 'on that day, then this obligation to be void, otherwise to remain in full force. Dated this day of , 19 . . . (Signatures.) COTJNTT OF ss.: On this day of , 19 . . , before me, the subscriber, personally came M. N., R. 0., and X. Y., to me personally known to be the same persons mentioned and described in and who executed the foregoing undertaking, and they severally acknowledged the execution thereof. A. M., Justice of the Peace. CouNTT OP , ss.: R. O, and X. Y., both of the town of Knox, in said county, being duly sworn, each for himself says that he is worth the sum of dollars over and above all debts, which he owes or has incurred and exclusive of property exempt from levy and 698 CODE OF CKIMINAL PEOCEDUKE. sale on escecution and that liis property consists of, the said R. O.'s property consists of, a farm of acres in the town of , said county. The said X. Y.'s property consists of number 21 street, in the city of Cohoes, said county. ^Signatures.) Subscribed and sworn to before me ) this .... day of , 19 . . . f A. M., Justice of the Pea. to enter into an undertaking with two sureties in the sum of dollars for the good behavior of the said C. D. for the space of one year. Now, therefore, the condition of this obligation is such that if the said C. D. will be of good behavior for the space of one year next ensuing the date hereof, then this obligation to be void, otherwise to remain in full force and virtue. Dated this day of , 19 . . . ( Signature. ) (Add affidavit and acknowledgment as in Form No. 32.) [Code of Criminal Procedure, § 899,] No. 39. Undertaking on Being Held to Anstrer. State of New Yoek, | County of ( An order having been made on the day of 19 . . , by C. W. H., a justice of the peace of the town of , said county, that C. D. be held to answer upon a charge of (here state the charge), upon which he has been duly admitted to bail in the sum of dollars; Now, therefore, we, C. D. of the town of , said county, by occupation , the defendant, and E. F. and H. G., both of the town of , said county, by occupation , sureties, hereby undertake that the said C. D. shall appear and answer the said charge in whatever court it may be prosecuted and shall at all times render himself amenable to the process of the court, and if convicted, shall appear for judgment and render himself in execution thereof; and if he fails to perform either of these conditions we will pay to the people of the state of New York the sum of dollars. Dated this day of , 19 . . . (Signatures.) (Add affidavits and acknowledgment as in Form No. 32.) [Code of Criminal Procedure, § 568.] No. 40. Undertaking Upon Re-commitment. State of New Yoke, 1 County of ( An order having been made on the day of , 19. ., 'by the court of special sessions that A. B. be admitted to bail in the sum of dollars, in an action pending in that court against him, in behalf of the people of the state of New York upon an information. (Here state its substance.) FOKMS. 701 We, A. B., defendant, and C. D., surety, of the town of , said county, by occupation a , and E. F. of the town of , said county, by occupation a , sureties, hereby, jointly and severally, undertake that tlie above-named A. B. shall appear in that or any other court in which his appearance may be lawfully required, upon that information, and shall at all times render himself amenable to its orders and process, and appear for judgment and surrender himself in execution thereof; or if he fails to perform either of these conditions, we will pay to the people of the state of New York the sum of dollars. Dated at the town of , this day of 19 . . . (Signatures.) (Add affidavit and acknowledgment as in Form No. 32.) [Code of Criminal Procedure, § 605.] No. 41. Undertaking to Appear at Special Sessions. State or New Yobk, ) County of C A. B. having been duly charged before C. W. H., a justice of the peace of the town of , said county, with the offence of (designate the offence generally), We, the undersigned, undertake jointly and severally that he, said A. B., shall appear thereon from time to time, until judgment, at a court of special sessions in the said town of , competent to try the case, or that he will pay to the county off the sum of dollars. Dated at the town of , this day of , 19 . . . (Signatures.) (Add affidavit and acknowledgment as in Form No. 32.) [Code of Criminal Procedure, § 738.] No. 42. Undertaking for Support of Bastard. State of New Yoek, J County of | Know all men by these presents: That we, A. B., defendant, C. D. and E. F., sureties, all of the town of , said county, are jointly and severally and firmly bound to the people of the state of New York in the sum of dollars, to be well and truly paid if default shall be made in the conditions following: Whbbeas, The said A. B. has been adjudged to be the father of a bastard child, of which Lucy M. is about to be delivered (or was lately delivered), at the town of , said county. The condition of this obligation is such if the said A, B. shall indemnify the said town of , and every other county, town or city, against any expense for the support of the bastard, or of its mother during her confinement and recovery, and to pay the costs of arresting the said A. B., and of any order of filiation that may be made, then this obligation to be void; otherwise to remain in full force and virtue. Dated at the town of , this day of 19 . . . (Signatures.) (Add affidavit and acknowledgment as in Form No. 32.) [Code of Criminal Procedure, § 844.] 702 CODE OF CKIMmAL PEOCEDUKE. No. 43. Id.; Under Subdivision 2 of Section 844. State of New Yoek, ) County of ^**-' Know all men ly these presents: That we, A. B., of the town of , said county, by occupation a , defendant; C. D., of the town of , county of , by occupation a, , and E. F., of the town of , county of , by occupation a , sureties, are jointly, severally and firmly bound to the people of the state of New York in the sum of dollars, to be well and truly paid if default shall be made in the conditions following: Whereas, The said A. B. has been adjudged to be the father of a bastard child, of which Lucy M. Is about to be delivered (or was lately delivered) at the town of , said county. The condition of this obligation is such that if the said A. B. shall appear at the next county court, to be held in and for the said county, and not depart the said county without its leave, but will appear and answer the charge at the next county court of this county then this obligation to be void, otherwise to remain in full force and virtue- Dated at the town of , this day of , 19 . . . (Signatures.) (Add affidavit and acknowledgment as in Form No. 32.) No. 44. Undertaking on Adjonrnment in Bastardy Case. State op New York, 1 County of 5**" A. B., having been duly charged upon the oath of Lucy M., of being the father of a bastard child of which she is pregnant and about to be delivered, and the said A. B. having been this day duly arrested and brought before C. W. H. and J. S., two justicesi of the peace, in and for the county of , and in the town of , and the said justices having convened according to law in this proceeding; and, whereas, the said A. B. requested an adjournment, and for sufficient reasons said justices have decided to adjourn all further proceedings herein until the day of , 19 . . , at the office of , in the town of , in said county. We hereby undertake jointly and severally that the said A. B. shall appear herein and before the said justices from time to time and at the time and place aforesaid, and not depart therefrom without the leave of said justices, or that we will pay to th* people of the state of New York the sum of dollars. Dated this day of , 19 . . . ( Signatures. ) (Add affidavit and acknowledgment as in Form No. 32.) [Code of Criminal Procedure, § 849.] No. 45. Undertaking of Parent, etc. State op New Yobk, ) County of J*®"' Whereas, complaint having been heretofore duly made before C. W. H., a justice of the peace of the town of , in said county, that A. B., a child of the age of years, residing in the said town, was on the day of , 19. ., found wandering abroad and in the streets and lanes of the incorporated village FOEMS. 703 of , a truant, without any lawful occupation; said child having suflBcient bodily health and mental capacity to attend the public school, and, whereas, the said justice did thereon duly cause a peace ofBcer to bring such child before him for exam- ination, and cause C. D., the father and master of said child, to be summoned to attend such examination. And on such examination the complaint was satisfactorily estab- lished and the said justice required the said C. D., father of said child, to enter into an engagement in writing with two sureties in the sum of dollars, to the (corporate authorities of the village) that he will restrain such child from so wander- ing about, will keep him within his own premises, or in some lawful occupation, and will cause him to be sent to some school, at least four months in each year, until he becomes fourteen years old. Now, therefore, we, C. D., E. F., and H. G., all of the town of , said county, hereby undertake that the said C. D. will restrain said child from wandering about the streets of the said village, a, truant, without lawful occupation; will keep him within his own premises or in some lawful occupation, and will cause him to be sent to some school at least four months in each year until he becomes fourteen years old; or if he fails to perform either of these conditions, we will pay to (said author- ities) the sum of dollars. Dated this day of , 19 . . . ( Signatures. ) (Add affidavit and acknowledgment as in Form No. 32.) [Code of Criminal Procedure, § 888.] No. 46. Information for Misdemeanor. State op New Yoek, ) County of ( A. B., being duly sworn, says that he resides in the town of , in said county ; that on the day of , 19 . . , at the said town of one C. D. did unlawfully and knowingly violate laws of the state of New York in relation to in that he did ( here state all the facts and circumstances in full of which the crime consisted). A. B. Subscribed and sworn to before me this .... day of 19 . . . C. W. H., Justice of the Peace. No. 47. Information of an Affray. State of New Yoek, ) \ as. : County of j A. B., being duly sworn, says he resides in the town of said county; that on the day of , 19 . . , at the said town of , in said county, C. D. did with force and arms make an affray by fighting with E. F. in a public street (or public highway, or public place), to wit: at , by (here state all the facts), against the peace of the people of the state of New York, and the statute provided for such case. Subscribed and sworn to before me this day of , 19 • • C. W. H., Justice of the Peace. I 704 CODE or CKIMINAL PEOCEDUEE. No. 48. Information of am Assanit and Battery. State of New York, ) County of J**"" A. B., being duly sworn, says he resides in the town of , said county; that on the day of , 19 . . , at the town of , in said county, C. D. did, with force and arms, assault this deponent, and the said C. D. did then and there beat, wound and ill-treat, without cause or provocation, this deponent, by (here state all the facts). A. B. Subscribed and sworn to before me this .... day of , 19... C. W. H., Justice of the Peace. No. 49. Information in Relation to Dog Fighting. State of New Yobk, 1 County of J**' A. B., being duly sworn, says he resides in the town of , said county; that on the day of , 19 . . , at the town of , in said county, C. D, did willfully, unlawfully and wickedly encourage, aid and assist E. F. to keep and maintain a certain place, to wit: (here name and describe place), or to receive money for the admission of divers persons, to a certain place maintained for the purpose of, and said place was then and there, by the aid of the said C. D., unlawfully kept and used by the said E. F. for the purpose of fighting certain bulla, cocks, dogs, bears or other creatures, to wit: (here state all the facts and circum- stances in full). A. B. Subscribed and sworn to before me, this .... day of , 19... C. W. H., Justice of the Peace. No. 50. Information Against Keeper of Bawdy Honse. State of New Yobk, 1 County of ( A. B., being duly sworn, says he resides in the town of , said county; that the premises known and described as No street, in the said town of , in said county, were, on the day of , 19 . . , kept. maintained and occupied by C. D. as a common, ill-governed and disorderly house, and a, common bawdy house and house of prostitution, and a resort for common prostitutes, drunkards, idle, vile, dissolute and disorderly men and women who are in the practice of drinking, whoring, rioting, disturbing the peace, using loud and vile language at almost all hours of the day and night, to the nuisance of the people residing in the neighborhood and passing thereby (here state any further facts within the knowledge of deponent). A. B. Subscribed and sworn to before me, J this .... day of , 19... ( C. W. H., Justice of the Peace. FORMS. 705 No. 51. Information for Bigamy. State of New Yokk, ) County of J®*- A. B., being duly sworn, says he resides in the town of , said county. That one C. D. is guilty of bigamy, in that on the day of , 19 , , , at the town of , in the said county, said state, did marry one E, F., and the said C. D. did then and there have for his wife the said E. F., and being so married he did, on the day of , 19 . . , in the town of , county oi , willfully and feloniously marry and take as his wife one M. N., and the said C. D. was then and there married to said M. N., the said C. D. being then a married man and having then and there a living wife, namely E. F. Subscribed and sworn to before me, J this .... day of , 19 . . . I C. W. H., Justice of the Peace. Xo. 52. Information for Assanltlng an Officer. State op New Yoek, ) County of C **' "' A. B., being duly sworn, says he resides in the town of , said county; that he is a constable in the town of , said county; that C. D., in the said town, and on the day of 19. ., with force and arms, unlawfully and violently, without justifiable or excusable cause, did assault, beat, and wound and use personal violence upon deponent while deponent was then and there a constable of the said town engaged in the discharge of his duty as such constable, and the said C. D. did unlawfully and willfully resist the deponent in the discharge of his duties as such constable (here state any other fact of materiality) against the peace of the people of the state of New York and the form of the statute in such case provided. A. B. Subscribed and sworn to before me, 1 this .... day of , 19 . . . f C. W. H., Justice of the Peace. No. 53. Information for Ferjnry. State op New Yobk, ) County of • ( A. B., being duly sworn, says he resides in the town of said county; that on the day of , 19 . . , in the town of , in said county, a certain action in which M. N. was plaintiff and 0. P. was defendant, was tried before J. H., a justice of the peace of the said town, that upon the trial of said action C. D. appeared as a witness for the plaintiff and was then and there duly and regularly sworn by the said justice, that the evidence he should give in the said action should be the truth, the whole truth, and nothing but the truth; and that upon the trial of the said action it then and there became material to inquire whether (here state the evidence which it is claimed was false) and that thereupon the said C. D., being so sworn as a witness as aforesaid, did then and there on the trial of the said action 45 706 CODE OF CKIMINAL PEOCEDUKE. falsely, willfully and corruptly swear and testify, among other things that (here repeat the testimony alleged to be false ) , whereas and in truth and in fact the said testimony was not the truth, but absolutely false, whereby the said C. D. did then and there will- fully and knowingly swear falsely and commit willful and corrupt perjury. A. B. Subscribed and sworn to before me, this .... day of , 19... C. W. H., Justice of the Peace. Ifo, 54. Information for False Pretence. State op New Yoek, ) ( S3. ." County of I A, B., being duly sworn, says he resides in the town of , said county That C. D. on the day of , 19 . . , at the town of , said county, with intent feloniously to cheat and defraud deponent, did then and there feloniously, unlawfully and designedly represent and pretend to deponent •{ here state all the facts, circumstances and writing, if any, comprising the false pretence), and the said deponent then and there believing the said false pretences so made by the said C. D. and by reason thereof was induced to deliver and did then and there deliver to the said C. D. (here state Uhe property delivered) of the value of dollars, the property of deponent, and the said C. D. did then and there obtain and receive the same by means of such false pretences which were in all respects utterly false and untrue to the knowledge of said C. D., and that he made the same with intent felon- iously to cheat and defraud deponent, and that he did by the means of such false pre- tences and representations feloniously, unlawfully, falsely, knowingly and designedly receive and obtain from deponent the said property with intent feloniously to cheat and defraud deponent of the same. A. B. Suhscribed and sworn to before me, ) this .... day of , 19 . . . ( C. W. H., Justice of the Peace. No. 55. Information for Arson, First and Second Degree. State op New Yoek, County of ^**--" A. B., being duly sworn, says he resides in the town of , said county; that in the night time of the day of , 19. . , C. D. did willfully and feloniously set fire to or burn a certain dwelling house, to wit, (here describe house) in the town of , in which house there were at the time human beings, to wit, (here name all the persons who were in the house) by (here describe all circumstances of the act), and that C. D. is guilty of arson degree. A. B. Subscribed and sworn to before me, this .... day of , 19 . . . C. W. H., Justice of the Peace. FORMS. 707 No. 56. Information for Arson, Second and Third Degree. State op New Yobk, ) County of (**■' A. B., being duly sworn, says he resides in tlie town of , said county; that C. D. is guilty of arson degree, in that in the time of the